R. v. Halliday (W.L.), (1992) 83 Man.R.(2d) 142 (CA)

• Judge: Scott, C.J.M., O'Sullivan and Lyon, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: November 05, 1992
• Jurisdiction: Manitoba
• Citations: (1992), 83 Man.R.(2d) 142 (CA);1992 CanLII 4026 (MB CA);77 CCC (3d) 481;36 WAC 142;83 Man R (2d) 142

R. v. Halliday (W.L.) (1992), 83 Man.R.(2d) 142 (CA);

    36 W.A.C. 142

MLB headnote and full text

Her Majesty The Queen (respondent) v. William Lawson Halliday (accused/appellant)

(Suit No. A.R. 92-30-00760)

Indexed As: R. v. Halliday (W.L.)

Manitoba Court of Appeal

Scott, C.J.M., O'Sullivan and Lyon, JJ.A.

December 2, 1992.

Summary:

The accused was convicted of sexual assault after a trial before judge and jury. He appealed on the grounds that the trial judge admitted prejudicial evidence of his previous criminal conviction for attempted rape, failed to disclose the contents of a note from the jury and pressured the jury to break their deadlock.

The Manitoba Court of Appeal, O'Sullivan, J.A., dissenting, dismissed the appeal.

Criminal Law - Topic 127

Rights of accused - Right to be present at trial - [See Criminal Law - Topic 5038 ].

Criminal Law - Topic 128

Rights of accused - Right to make full answer and defence - [See Criminal Law - Topic 5038 ].

Criminal Law - Topic 4363

Procedure - Jury charge - Direction re­garding unanimity and disagreement - An accused was tried by judge and jury on a charge of sexual assault - After deliberat­ing seven hours, the jury sent a note to the trial judge stating that it was deadlocked - The trial judge returned the jury to their deliberations, encouraging them to recon­sider and emphasizing that they should not surrender their honest convic­tions - He referred to the fact that the complainant might have to re-testify if they failed to reach a verdict - The Mani­toba Court of Appeal held that the charge did not unduly coerce the jury - See para­graphs 31 to 35.

Criminal Law - Topic 5038

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscar­riage of justice - Procedural error - After deliberating seven hours, the jury sent a note informing the trial judge that they were deadlocked - The trial judge did not disclose the contents of the note, but exhorted the jury to continue their deliber­ations - The accused alleged breach of his right to be present at trial and to make full answer and defence (Criminal Code, s. 650) - The Manitoba Court of Appeal held that the error was procedural and no prejudice resulted to the accused - Ac­cordingly, the court applied the curative provisions of s. 686(1)(b)(iv) of the Code and dismissed the appeal - See paragraphs 17 to 30.

Criminal Law - Topic 5437

Evidence and witnesses - Cross-examina­tion of accused - Prior convictions - An accused, charged with sexual assault had a prior conviction for attempted rape - The accused submitted that the Crown should not be permitted to cross-examine the accused on his prior conviction because it did not impact on the accused's honesty, it was dated and was unduly prejudicial - The trial judge permitted cross-examina­tion of the accused on his prior record under s. 12 of the Evidence Act and instructed the jury on the limited relevance and use of the evidence - The Manitoba Court of Appeal upheld the trial judge's decision - See paragraphs 8 to 16.

Cases Noticed:

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to. [para. 5].

R. v. Kulba (1986), 39 Man.R.(2d) 113; 27 C.C.C.(3d) 349 (C.A.), refd to. [para. 8].

R. v. Watkins (1992), 54 O.A.C. 200; 70 C.C.C.(3d) 341 (C.A.), refd to. [para. 13].

R. v. Barrette, [1977] 2 S.C.R. 121; 10 N.R. 321, refd to. [para. 16].

Vickery v. Prothonotary, Supreme Court (N.S.), [1991] 1 S.C.R. 671; 124 N.R. 95; 104 N.S.R.(2d) 181; 283 A.P.R. 181; 64 C.C.C.(3d) 65, refd to. [para. 16].

Metropolitan Stores MTS Ltd. et al. v. Manitoba Food and Commercial Workers Union, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 16].

Manitoba (Attorney General) v. Metropol­itan Stores Ltd. - see Metropolitan Stores MTS Ltd. et al. v. Manitoba Food and Commercial Workers Union, Local 832 and Labour Board (Man.).

R. v. Côté and Vézina, [1986] 1 S.C.R. 2; 64 N.R. 93, refd to. [para. 18].

R. v. Dunbar and Logan (1982), 68 C.C.C.(2d) 13 (Ont. C.A.), refd to. [para. 19].

R. v. Hay (1982), 17 Sask.R. 252; 70 C.C.C.(2d) 286 (C.A.), refd to. [para. 20].

R. v. Hamilton (1980), 58 C.C.C.(2d) 467 (Que. C.A.), refd to. [para. 21].

R. v. Meunier (1965), 48 C.R. 14 (Que. C.A.), affd. [1966] S.C.R. 399, refd to. [para. 23].

R. v. Hertrich, Stewart and Skinner (1982), 67 C.C.C.(2d) 510 (Ont. C.A.), refd to. [para. 24].

R. v. Joinson (1986), 32 C.C.C.(3d) 542 (B.C.C.A.), refd to. [para. 26].

R. v. Cloutier (1988), 27 O.A.C. 246; 43 C.C.C.(3d) 35 (C.A.), refd to. [para. 27].

R. v. Littlejohn and Tirabasso (1978), 41 C.C.C.(2d) 161 (Ont. C.A.), refd to. [paras. 31, 38].

Shoukatallie v. The Queen, [1962] A.C. 81 (P.C.), refd to. [para. 32].

R. v. Alkerton (1992), 55 O.A.C. 368; 8 O.R.(3d) 443 (C.A.), refd to. [paras. 33, 38].

R. v. Palmer, [1970] 3 C.C.C. 402 (B.C.C.A.), refd to. [para. 38].

R. v. Sims (1991), 64 C.C.C.(3d) 403 (B.C.C.A.), revd. 139 N.R. 305; 10 B.C.A.C. 94; 21 W.A.C. 94 (S.C.C.), refd to. [para. 38].

R. v. Watson (1988), 87 Cr. App. R. 1 (C.A.), refd to. [para. 38].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 650 [para. 17]; sect. 686(1)(b), sect. 686(1)(b)(iii) [para. 22]; sect. 686(1)(b)(iv) [para. 27].

Criminal Code, R.S.C. 1970, c. C-34, sect. 557, sect. 613(1)(b)(iii) [para. 24].

Counsel:

R.M. Heinrichs, for the appellant;

G.A. Lawlor, for the Crown.

This appeal was heard on November 5, 1992, before Scott, C.J.M., O'Sullivan and Lyon, JJ.A., of the Manitoba Court of Appeal. On December 2, 1992, the decision of the court was delivered and the following opinions were filed:

Scott, C.J.M. (Lyon, J.A., concurring) - see paragraphs 1 to 36;

O'Sullivan, J.A., dissenting - see para­graphs 37 to 39.