R. v. Henderson (R.R.), (1999) 120 O.A.C. 99 (CA)

• Judge: McMurtry, C.J.O., Finlayson, Osborne, Labrosse and Charron, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 13, 1999
• Jurisdiction: Ontario
• Citations: (1999), 120 O.A.C. 99 (CA);1999 CanLII 2358 (ON CA);44 OR (3d) 628;134 CCC (3d) 131;120 OAC 99;42 WCB (2d) 138

R. v. Henderson (R.R.) (1999), 120 O.A.C. 99 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. AP.042

Her Majesty The Queen (respondent) v. Raymond Roy Henderson (applicant/appellant)

(C22502)

Indexed As: R. v. Henderson (R.R.)

Ontario Court of Appeal

McMurtry, C.J.O., Finlayson, Osborne, Labrosse and Charron, JJ.A.

April 13, 1999.

Summary:

The accused was convicted of sexual assault and sentenced to three years' im­prisonment. The accused appealed his con­vic­tion and sentence.

The Ontario Court of Appeal allowed the appeal, set aside the conviction and ordered a stay of proceedings.

Barristers and Solicitors - Topic 1802

The prosecutor - Role of - [See Criminal Law - Topic 22 ].

Barristers and Solicitors - Topic 1901

Crown counsel - General - [See Criminal Law - Topic 22 ].

Criminal Law - Topic 22

General principles - Prosecution of crime -Function of Crown prosecutor and At­tor­ney General - The Ontario Court of Appeal discussed the role of Crown coun­sel - See paragraphs 22 to 28 - The court stated that "... the preservation of the crim­inal justice system requires that appel­late courts focus on the classic role of Crown counsel when reviewing allegedly improper Crown coun­sel conduct." - See paragraph 27.

Criminal Law - Topic 4301

Procedure - Trial judge - Duties and func­tions of - Respecting cross-examin­ation of witnesses - [See Criminal Law - Topic 5434 ].

Criminal Law - Topic 4345

Procedure - Jury - Evidence - Jury request to review evidence or argument - At a sexual assault trial, after deliberating for four and a quarter hours, the jury returned to report that it was at an impasse - The trial judge gave an exhortation and the jury retired again - After the jury had been deliberat­ing for approximately nine hours they returned and asked to hear the testi­mony and cross-examination of the com­plainant again - The trial judge told the jury that they could hear the evidence but it would be time consuming and they would be sequestered to hear the tapes overnight; therefore, they might want to reconsider their question - The jury retired and returned an hour and a half later with a verdict of guilty - The Ontario Court of Appeal held that the trial judge made a fatal error in the way he handled the jury's request - See paragraphs 43 to 48.

Criminal Law - Topic 4375.3

Procedure - Jury charge - Directions re­gard­ing prior consistent statements - The accused was charged with sexual assault - Three months after the incident the com­plainant and a friend decided to spray paint the phrase "You Rapest" [sic] on the ac­cused's trailer - At that time the com­plain­ant reported the assault - The accused appealed his conviction, arguing that the trial judge improperly admitted the spray painting evidence - The Ontario Court of Appeal held that the trial judge improperly dealt with this prior consistent statement - He erred in failing to give a limiting in­struction and in inviting the jury to find that the spray painted words could be used to support the complainant's version of events - See paragraphs 34 to 42.

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - An accused was convicted of sexual assault - He appealed his conviction - The Ontario Court of Appeal allowed the appeal, set aside the conviction and entered a stay of proceedings - The court stated that a stay was justified in this case where the accused was convicted as the result of a second trial, the first ending in a mistrial - The accused had already served two and one-half years of the sentence imposed before he was released on bail pending appeal - A third trial would be necessi­tated by the Crown's conduct - It would offend the standard of decency to require the accused to proceed to a third trial - See paragraphs 49 to 51.

Criminal Law - Topic 4961

Appeals - Indictable offences - New trials -Grounds - Abusive cross-examination by Crown - [See Criminal Law - Topic 5434 ].

Criminal Law - Topic 5434

Evidence and witnesses - Cross-examina­tion of accused - Improper questions - What constitute - The accused appealed his sexual assault conviction, arguing that there had been improper and unfair cross-examination of the accused at trial - The Ontario Court of Appeal held that the Crown's conduct seriously prejudiced the accused in his defence and the trial judge did nothing at the time to alleviate the potential prejudice - In particular the Crown asked questions that effectively forced the accused to comment on the complainant's credibility, asked questions and commented on the accused's reputation in the community, asked questions imply­ing that the accused had somehow acted improperly in his defence and asked improper questions regarding the accused's plea - See paragraphs 13 to 33.

Cases Noticed:

R. v. Vandenburge (1995), 96 C.C.C.(3d) 371 (Ont. C.A.), refd to. [para. 15].

R. v. Hill (1986), 17 O.A.C. 309; 32 C.C.C.(3d) 314 (C.A.), refd to. [para. 17].

Browne v. Dunn (1893), 6 R. 67 (H.L.), refd to. [para. 18].

R. v. Verney (M.) (1993), 67 O.A.C. 279; 87 C.C.C.(3d) 363 (C.A.), refd to. [para. 19].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1; 8 C.R.(4th) 277, refd to. [para. 22].

R. v. Boucher (1954), 110 C.C.C. 263 (S.C.C.), refd to. [para. 23].

Sweitlinski v. Ontario (Attorney General), [1994] 3 S.C.R. 481; 172 N.R. 32; 75 O.A.C. 16, refd to. [para. 23].

R. v. Bain, [1992] 1 S.C.R. 91; 133 N.R. 1; 51 O.A.C. 161; 69 C.C.C.(3d) 481, refd to. [para. 25].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 34 O.R.(3d) 620 (C.A.), refd to. [para. 26].

R. v. Munroe (D.A.) (1995), 79 O.A.C. 41; 96 C.C.C.(3d) 431 (C.A.), refd to. [para. 26].

R. v. Nugent (A.) (1995), 82 O.A.C. 388; 24 O.R.(3d) 295 (C.A.), refd to. [para. 26].

R. v. R. (1994), 74 O.A.C. 363; 94 C.C.C.(3d) 168 (C.A.), refd to. [para. 26].

R. v. Daly (1992), 57 O.A.C. 70 (C.A.), refd to. [para. 27].

R. v. Yakeleya (1985), 9 O.A.C. 284; 20 C.C.C.(3d) 193 (C.A.), refd to. [para. 27].

R. v. Logiacco (1984), 2 O.A.C. 177; 11 C.C.C.(3d) 374 (C.A.), refd to. [para. 28].

R. v. Brouillard, [1985] 1 S.C.R. 39; 57 N.R. 168; 17 C.C.C.(3d) 193, refd to. [para. 31].

Jones v. National Coal Board, [1957] 2 All E.R. 155, refd to. [para. 31].

R. v. Romeo, [1991] 1 S.C.R. 86; 119 N.R. 309; 110 N.B.R.(2d) 57; 276 A.P.R. 57; 62 C.C.C.(3d) 1, refd to. [para. 33].

R. v. Jones (T.J.) (1988), 29 O.A.C. 219; 44 C.C.C.(3d) 248 (C.A.), refd to. [para. 35].

R. v. Garofoli et al. (1988), 27 O.A.C. 1; 41 C.C.C.(3d) 9 (C.A.), revsd. [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161; 80 C.R.(3d) 317; 50 C.R.R. 206, refd to. [para. 37].

R. v. Fair (J.E.) (1993), 67 O.A.C. 251; 85 C.C.C.(3d) 457 (C.A.), refd to. [para. 40].

R. v. Codina (A.M.) (1995), 77 O.A.C. 180; 95 C.C.C.(3d) 311 (C.A.), refd to. [para. 41].

R. v. Kulak (1979), 46 C.C.C.(2d) 30 (Ont. C.A.), refd to. [para. 45].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321; 93 C.C.C.(3d) 1, refd to. [para. 46].

R. v. Young (1984), 3 O.A.C. 254; 13 C.C.C.(3d) 1 (C.A.), refd to. [para. 51].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161; 97 C.C.C.(3d) 385; 124 D.L.R.(4th) 7; 38 C.R.(4th) 265; 28 C.R.R.(2d) 244, refd to. [para. 51].

Counsel:

Melvyn Green and P. Andras Schreck, for the appellant;

David Finley, Renee M. Pomerance and Catherine A. Cooper, for the respondent.

This appeal was heard on October 5 to 8, 1998, before McMurtry, C.J.O., Finlayson, Osborne, Labrosse and Charron, JJ.A., of the Ontario Court of Appeal. The decision of the court was delivered by Labrosse, J.A., on April 13, 1999,