R. v. Fair (J.E.), (1993) 67 O.A.C. 251 (CA)

• Judge: Finlayson, Catzman and Carthy, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 29, 1993
• Jurisdiction: Ontario
• Citations: (1993), 67 O.A.C. 251 (CA);1993 CanLII 3384 (ON CA);1993 CanLII 3384 (NS CA);16 OR (3d) 1;26 CR (4th) 220;85 CCC (3d) 457;[1993] OJ No 4573 (QL);67 OAC 251

R. v. Fair (J.E.) (1993), 67 O.A.C. 251 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Jack Edwin Fair (appellant)

(C 12375)

Indexed As: R. v. Fair (J.E.)

Ontario Court of Appeal

Finlayson, Catzman and Carthy, JJ.A.

October 29, 1993.

Summary:

The accused was convicted of sexual assault. He was sentenced to imprisonment for two years less one day, plus three years' probation. He appealed his conviction and sentence.

The Ontario Court of Appeal allowed the conviction appeal, quashed the conviction and ordered a new trial.

Criminal Law - Topic 667

Sexual assault - Evidence - Complaint - Admission of - [See both Criminal Law - Topic 4375.3 ].

Criminal Law - Topic 673

Sexual assault - Jury charge - [See both Criminal Law - Topic 675 and both Crimi­nal Law - Topic 4375.3 ].

Criminal Law - Topic 675

Sexual assault - Evidence and proof - The accused was convicted of sexually assault­ing his common law wife's daughter - The trial judge admitted evidence of isolated incidents of emotional upset by the com­plainant without having these incidents placed in context by expert evidence - The Ontario Court of Appeal held that in the absence of expert evidence on sexual abuse, there was nothing to connect these emotional outbursts with the alleged sexual assaults - Further, there was no jury in­struction respecting use of this evidence - See paragraphs 42 to 47.

Criminal Law - Topic 675

Sexual assault - Evidence and proof - The accused was convicted of sexually assault­ing his common law wife's daughter - The trial judge admitted testimony from the complainant that the accused had physi­cally abused her mother - The Ontario Court of Appeal affirmed that this evi­dence was admissible, but stated that there should have been a limiting instruction to the jury respecting use of the evidence - See paragraphs 48 to 51.

Criminal Law - Topic 4301

Procedure - Trial judge - Duties and functions of - Respecting cross-examin­ation of witnesses - The Ontario Court of Appeal expressed concern about "the ten­dency of some trial counsel to throw out allegations in cross-examination which they make no attempt to substantiate. In this case, the statement in question raised a poisonous side issue which in no way was relevant to the charges against the [accused] appellant" - See paragraph 50 - Further, the court commented that "the gratuitous and unsubstantiated smear of the appellant by Crown counsel should have been condemned by the trial judge, not treated as a relevant line of enquiry which fell short of being fruitful" - See para­graph 51.

Criminal Law - Topic 4375.3

Procedure - Jury charge - Directions regarding prior consistent statements - The accused was convicted of sexually assault­ing his common law wife's daughter - The trial judge allowed the Crown to lead evidence-in-chief from the complainant as to why there was no recent complaint of the assaults and as to when a complaint was made and to whom - The Ontario Court of Appeal ruled that although certain of these prior consistent statements were admissible, the trial judge should have instructed the jury on the use which could be made of the statements - See para­graphs 1 to 41.

Criminal Law - Topic 4375.3

Procedure - Jury charge - Directions regarding prior consistent statements - The Criminal Code, s. 275, changed the rules relating to evidence of recent complaint - The Ontario Court of Appeal discussed the effect of s. 275 on law respecting the admissibility of evidence of past consistent statements in trials involving sexual of­fences - See paragraphs 14 to 41 - The court stated that "... if prior consistent statements are to be admissible as part of the Crown's case-in-chief, they cannot qualify as recent complaints and can only be admissible by meeting the test in [R. v.] Jones [29 O.A.C. 219]: (1) where recent fabrication is alleged or (2) as part of the res gestae or the narrative" - See para­graph 25 - In all cases involving prior consistent statements, the trial judge must instruct the jury respecting use of the statements - See paragraph 41.

Criminal Law - Topic 4399.4

Procedure - Jury charge - Directions re allegations on cross-examination - [See Criminal Law - Topic 4301 ].

Criminal Law - Topic 4784

Procedure - Counsel - Duties and powers - Respecting evidence - Cross-examin­ation - [See Criminal Law - Topic 4301 ].

Criminal Law - Topic 5415

Appeals - Indictable offences - Witnesses - Cross-examination of - [See Criminal Law - Topic 4301 ].

Evidence - Topic 1130

Relevant facts, relevance and materiality - Relevance of evidence offered - Prior consistent statements - [See both Crimi­nal Law - Topic 4375.3 ].

Cases Noticed:

R. v. Jones (T.J.) (1988), 29 O.A.C. 219; 44 C.C.C.(3d) 248 (C.A.), refd to. [para. 14].

R. v. Campbell (1977), 38 C.C.C.(2d) 6 (Ont. C.A.), refd to. [para. 14].

R. v. Kistendey (1975), 29 C.C.C.(2d) 382 (Ont. C.A.), refd to. [para. 18].

R. v. Timm (1981), 37 N.R. 204; 29 A.R. 509; 59 C.C.C.(2d) 396 (S.C.C.), refd to. [para. 21].

R. v. Lillyman, [1896] 2 Q.B. 167, refd to. [para. 21].

R. v. Osborne, [1905] 1 K.B. 551, refd to. [para. 21].

R. v. Boyce (1975), 23 C.C.C.(2d) 16 (Ont. C.A.), refd to. [para. 22].

R. v. Owens (1986), 18 O.A.C. 125; 33 C.C.C.(3d) 275 (C.A.), refd to. [para. 28].

R. v. Khan (1988), 27 O.A.C. 142; 42 C.C.C.(3d) 197 (Dist. Ct.), refd to. [para. 29].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 29].

Khan v. College of Physicians and Sur­geons (Ont.) (1992), 57 O.A.C. 115; 76 C.C.C.(3d) 10 (C.A.), refd to. [para. 31].

R. v. Cassibo (1982), 39 O.R.(2d) 288; 70 C.C.C.(2d) 498 (C.A.), refd to. [para. 34].

R. v. George (1985), 23 C.C.C.(3d) 42 (B.C.C.A.), refd to. [para. 35].

R. v. Toten (W.P.) (1993), 63 O.A.C. 321; 14 O.R.(3d) 225 (C.A.), refd to. [para. 38].

R. v. Lajoie (G.R.) (1993), 64 O.A.C. 213 (C.A.), refd to. [para. 40].

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111; 56 C.C.C.(3d) 200; 77 C.R.(3d) 347, refd to. [para. 47].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1; 79 C.C.C.(3d) 112, refd to. [para. 48].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 38].

Criminal Code, R.S.C. 1985, c. C-46, sect. 275 [para. 15]; sect. 715.1 [para. 38].

Authors and Works Noticed:

Jowitt's Dictionary of English Law (2nd Ed. 1977) [para. 20].

Wigmore on Evidence (Chadbourne Rev. 1972), vol. 4, p. 255, para. 1124 [para. 14].

Counsel:

Alan D. Gold, for the appellant;

Brian McNeely, for the respondent.

This appeal was heard on September 23 and 24, 1993, before Finlayson, Catzman and Carthy, JJ.A., of the Ontario Court of Appeal. The following decision of the court released by Finlayson, J.A., on October 29, 1993.