R. v. D.C., (2009) 258 O.A.C. 50 (CA)

• Judge: Doherty, Simmons and Lang, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 03, 2009
• Jurisdiction: Ontario
• Citations: (2009), 258 O.A.C. 50 (CA);2009 ONCA 789

R. v. D.C. (2009), 258 O.A.C. 50 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. NO.041

Her Majesty the Queen (respondent) v. D.C. (appellant)

(C48061; 2009 ONCA 789)

Indexed As: R. v. D.C.

Ontario Court of Appeal

Doherty, Simmons and Lang, JJ.A.

November 3, 2009.

Summary:

A court composed of a judge and jury found the accused guilty of sexual assault. The victims were a teenaged boy and his younger brother. The accused appealed.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4385.1

Procedure - Charge or directions - Jury or judge alone - Directions regarding inadmissible evidence - The accused, a volunteer at an overnight camp for teenagers, was charged with sexual assault on the person of a teenaged boy and his younger brother - M.W., who operated the camp, testified for the Crown to the effect that he had heard that his son had called the accused a "rapist pedophile" and that other boys had called the accused a "pedophile" - The accused sought a mistrial on the basis that the above evidence was prejudicial hearsay evidence - The trial judge refused a mistrial but immediately instructed the jury that they should disregard the above evidence - The accused was convicted - He appealed, arguing that the trial judge should not have refused a mistrial - The Ontario Court of Appeal dismissed the appeal - The trial judge was entitled, in his discretion, to conclude that a mid-trial instruction could remove the potential prejudice from the above comments - The trial judge's mid-trial instruction was up to that task where: (1) it properly characterized the comments not as anyone's opinion but rather as comments made in anger by M.W.'s young son; (2) the trial judge told the jury that the comments had no evidentiary value and that their decision could not depend on "name-calling, innuendo, conjecture or rumour" - See paragraphs 3 to 15.

Criminal Law - Topic 4631

Procedure - Mistrials - General - [See Criminal Law - Topic 4385.1 ].

Cases Noticed:

R. v. Burke (H.P.), [2002] 2 S.C.R. 857; 290 N.R. 71; 160 O.A.C. 271, refd to. [para. 14].

R. v. Toutissani (R.), [2007] O.A.C. Uned. 455 (C.A.), refd to. [para. 14].

Counsel:

Margaret Bojanowska, for the appellant;

David Lepofsky and Chikeziri Igwe, for the respondent.

This appeal was heard on November 3, 2009, by Doherty, Simmons and Lang, JJ.A., of the Ontario Court of Appeal. The Court of Appeal delivered its decision orally on November 3, 2009, and released the following endorsement on November 10, 2009.