R. v. Heyden (J.C.) and Vanderheyden (W.A.), [1999] O.T.C. 123 (GD)

• Judge: McIsaac, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: February 24, 1999
• Jurisdiction: Ontario
• Citations: [1999] O.T.C. 123 (GD)

R. v. Heyden (J.C.), [1999] O.T.C. 123 (GD)

MLB headnote and full text

Temp. Cite: [1999] O.T.C. TBEd. DE.150

Her Majesty The Queen v. Jack Cornelius Heyden and William Anthony Vanderheyden

Indexed As: R. v. Heyden (J.C.) and Vanderheyden (W.A.)

Ontario Court of Justice

General Division

Barrie

McIsaac, J.

February 24, 1999.

Summary:

Heyden and Vanderheyden were charged with first degree murder. Heyden's estranged wife testified as a Crown witness and was extensively cross-examined. Heyden and his wife were involved in litigation as a result of their separation. The accused claimed that the wife had a significant motive to falsely implicate Heyden because of the matrimonial litigation. The wife's solicitor in the matrimonial litigation testified. The solicitor had to refer to his file for the purpose of testifying. The accused applied for production of the wife's solicitor's files related to the matrimonial breakdown. The wife opposed the production, claiming solicitor-client privilege.

The Ontario Court (General Division), in a decision reported 94 O.T.C. 31, allowed the application subject to judicial vetting. After reviewing the file, defence counsel applied to have the wife recalled for further cross-examination.

The Ontario Court (General Division), dismissed the application. Defence counsel did not exercise due diligence in seeking production of the solicitor's file. Further, the re-attendance of the wife for further cross-examination would create profound frustration in the mind of the jury. The accused had the right to call the wife as part of their own case.

Criminal Law - Topic 5416.1

Evidence - Witnesses - Re-cross-examination - See paragraphs 1 to 8.

Cases Noticed:

R. v. Cook (1960), 127 C.C.C. 287 (Alta. C.A.), refd to. [para. 4].

The Queen's Case (1820), 129 E.R. 976, refd to. [para. 4].

R. v. Crosby (W.S.) (1994), 130 N.S.R.(2d) 61; 367 A.P.R. 61; 88 C.C.C.(3d) 353 (C.A.), revd. on other grounds [1995] 2 S.C.R. 912; 183 N.R. 22; 143 N.S.R.(2d) 57; 411 A.P.R. 57; 98 C.C.C.(3d) 225, refd to. [para. 4].

R. v. M.D.H., [1993] B.C.J. No. 3043 (C.A.), refd to. [para. 4].

R. v. McAnespie (R.B.), [1993] 4 S.C.R. 501; 162 N.R. 155; 68 O.A.C. 185; 86 C.C.C.(3d) 191, refd to. [para. 5].

R. v. Dixon (S.) (1998), 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241; 122 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 5].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1, refd to. [para. 7].

Counsel:

M. Martin and L. McConnery, for the Crown;

P. Connelly, for the accused, Heyden;

T. Breen and J. Bliss, for the accused, Vanderheyden.

This matter was heard by McIsaac, J., of the Ontario Court (General Division), who delivered the following decision on February 24, 1999.

Please note: The following judgment has not been edited.