R. v. Mahalingan (R.), (2006) 209 O.A.C. 198 (CA)

• Judge: Sharpe, Blair and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 20, 2006
• Jurisdiction: Ontario
• Citations: (2006), 209 O.A.C. 198 (CA)

R. v. Mahalingan (R.) (2006), 209 O.A.C. 198 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. AP.114

Her Majesty The Queen (respondent) v. Rathiskumar Mahalingan (appellant)

(C41280)

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

Ontario Court of Appeal

Sharpe, Blair and Rouleau, JJ.A.

April 20, 2006.

Summary:

An accused charged with attempted murder was convicted by a jury of aggravated assault following a gang attack on two men (P and B). P testified that it was not the accused who first attacked him. B testified that it was the accused who first attacked P, but had told police that it was a "brand new" gang member. B acknowledged that the accused was a former gang member. The Crown's case rested almost entirely on B's evidence, as there was no forensic evidence. There was evidence of post-offence conduct (telephone calls to both P and B to dissuade them from implicating the accused). The accused was acquitted of obstruction of justice respecting those calls. The accused appealed against conviction, submitting that (1) the jury charge failed to outline the defence theory; (2) the judge erred in admitting a statement attributed to the accused admitting prior misconduct and excluding evidence capable of dispelling the prejudice; (3) the judge erred in ordering that potential jurors be identified only by number (not name); and (4) the accused's subsequent acquittal for obstructing justice should be admitted as fresh evidence and rendered inadmissible the evidence of the telephone call to B.

The Ontario Court of Appeal, Blair, J.A., dissenting in part, but concurring in the result, admitted the fresh evidence, allowed the appeal and ordered a new trial.

Criminal Law - Topic 88

General principles - Estoppel - When applicable - The accused was convicted of aggravated assault primarily on the evidence of B, who identified the accused and also testified as to a post-offence phone call from the accused attempting to dissuade him from testifying against the accused - After the aggravated assault trial, the accused was acquitted of an obstruction of justice charge respecting the alleged phone call - The judge, in that case, had a reasonable doubt whether the alleged call was ever made - On appeal from his aggravated assault conviction, the accused submitted that his subsequent acquittal on the obstruction charge was admissible as fresh evidence and that the acquittal rendered B's evidence of the phone call inadmissible - The Ontario Court of Appeal held that the evidence was admissible as fresh evidence and that the state of authorities required a new trial on the ground that B's evidence of the phone call was retrospectively rendered inadmissible on the ground of issue estoppel - See paragraphs 52 to 67.

Criminal Law - Topic 4310.2

Procedure - Jury - General - Protection of identities of jurors - An accused charged with attempted murder was convicted of aggravated assault - The accused submitted that the trial judge erred in ordering that potential jurors be identified by number, rather than by name - The accused submitted that such procedure was unnecessary and prejudicial, as the jury might conclude that there was a need to protect their identity from the accused - The judge provided no reason for invoking s. 631(3.1) of the Criminal Code - The Ontario Court of Appeal rejected the submission - Although reasons were not given, there was a sufficient factual foundation (gang affiliations and witness tampering) to warrant the judge exercising his discretion to grant juror anonymity - The court stated that "while there was some risk of prejudice, it was open to the trial judge to conclude that the risk of harm to the integrity of the trial process and jury safety was more substantial and that the risk of prejudice to the appellant was one that could be managed through the usual safeguards of appropriate instructions to the jury regarding their duty to render a verdict according to the evidence and according to law." - See paragraphs 46 to 51.

Criminal Law - Topic 4350

Procedure - Charge or directions - Jury or judge alone - General - The Ontario Court of Appeal stated that "there is much to be said for a concise jury instruction that sets out the issues in plain and simple terms, focusing on the key points and avoiding the obscurity that can be the product of excessive detail and a pointless witness-by-witness recitation of all the evidence ... the role of a trial judge in charging the jury is to decant and simplify. ... The jurisprudence mandates a functional approach whereby the jury instruction is assessed pragmatically with a view to determining whether ... the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues" - See paragraphs 14, 16.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of defence - An accused charged with attempted murder was convicted by a jury of aggravated assault following a gang attack on two men (P and B) - P testified that it was not the accused who first attacked him - B testified that it was the accused, but had told police that it was a "brand new" gang member - B acknowledged that the accused was a former gang member - The Crown's case rested almost entirely on B's evidence, as there was no forensic evidence - The trial judge instructed the jury on the defence that B was not credible, but refused to instruct the jury on the defence that B's testimony was inconsistent with the exculpatory testimony of the other victim (P) - The Ontario Court of Appeal ordered a new trial - P's evidence was central to the accused's defence and the theory of the defence could not be fairly stated without some mention of it in the jury instructions - The trial judge's instruction to the jury had the effect of ignoring or undercutting a significant element of the accused's defence - The error was compounded by the trial judge's failure to instruct the jury on the available competing inferences they could draw from the evidence of gang rivalry - See paragraphs 18 to 37.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - [See Criminal Law - Topic 88 ].

Criminal Law - Topic 5211

Evidence and witnesses - Admissibility and relevancy - Flight and other post-offence behaviour of accused - [See Criminal Law - Topic 88 ].

Cases Noticed:

R. v. Jacquard (C.O.) (1997), 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161; 113 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 14].

R. v. Cooper (1993), 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209; 78 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 15].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 16].

R. v. Azoulay, [1952] S.C.R. 495, refd to. [para. 22].

R. v. Lewis (1979), 27 N.R. 451; 47 C.C.C.(2d) 24 (S.C.C.), refd to. [para. 32].

R. v. Grdic (1985), 59 N.R. 61; 19 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 53].

R. v. Grant (1991), 130 N.R. 250; 93 Nfld. & P.E.I.R. 181; 292 A.P.R. 181; 67 C.C.C.(3d) 268 (S.C.C.), refd to. [para. 53].

R. v. Cullen (1989), 36 O.A.C. 195; 52 C.C.C.(3d) 459 (C.A.), refd to. [para. 54].

R. v. R.A.M. (1994), 97 Man.R.(2d) 70; 79 W.A.C. 70; 94 C.C.C.(3d) 459 (C.A.), leave to appeal dismissed (1995), 190 N.R. 399; 107 Man.R.(2d) 320; 109 W.A.C. 320 (S.C.C.), refd to. [para. 54].

R. v. P.S. (2000), 131 O.A.C. 282; 144 C.C.C.(3d) 120 (C.A.), leave to appeal dismissed (2001), 266 N.R. 400; 146 O.A.C. 199 (S.C.C.), refd to. [para. 54].

R. v. Akins (J.A.) (2002), 159 O.A.C. 166; 164 C.C.C.(3d) 289 (C.A.), refd to. [para. 54].

R. v. K.R.G. (1991), 51 O.A.C. 294; 68 C.C.C.(3d) 268 (C.A.), refd to. [para. 54].

R. v. Verney (M.) (1993), 67 O.A.C. 279; 87 C.C.C.(3d) 363 (C.A.), refd to. [para. 54].

R. v. Rulli (M.) (1999), 120 O.A.C. 357; 134 C.C.C.(3d) 465 (C.A.), leave to appeal dismissed (2000), 253 N.R. 193; 134 O.A.C. 196 (S.C.C.), refd to. [para. 54].

R. v. Arp (B.) (1998), 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1; 129 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 56].

R. v. Ollis, [1900] 2 Q.B. 758, refd to. [para. 57].

R. v. White (R.G.) and Côté (Y.) (1996), 91 O.A.C. 321; 29 O.R.(3d) 577 (C.A.), refd to. [para. 60].

Bates v. Bates (2000), 133 O.A.C. 319; 49 O.R.(3d) 1 (C.A.), refd to. [para. 60].

R. v. Z., [2000] 3 All E.R. 385 (H.L.), refd to. [para. 61].

R. v. Degnan, [2001] 1 N.Z.L.R. 280 (C.A.), refd to. [para. 61].

R. v. Duguay (2001), 155 C.C.C.(3d) 407 (Que. C.A.), refd to. [para. 62].

R. v. Hewson (1978), 24 N.R. 224; 42 C.C.C.(2d) 507 (S.C.C.), refd to. [para. 64].

R. v. Duong (T.D.) (1998), 108 O.A.C. 378; 124 C.C.C.(3d) 392 (C.A.), refd to. [para. 64].

R. v. Duong (T.D.) (2001), 152 O.A.C. 293; 160 C.C.C.(3d) 467 (C.A.), refd to. [para. 64].

R. v. Palmer (1979), 30 N.R. 181; 50 C.C.C.(2d) 193 (S.C.C.), refd to. [para. 65].

R. v. Ghorvei (M.) (1999), 124 O.A.C. 301; 138 C.C.C.(3d) 340 (C.A.), refd to. [para. 89, footnote 2].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 631(3), sect. 631(3.1) [para. 46].

Authors and Works Noticed:

Boilard, Jean-Guy, Guide to Criminal Evidence (2005 Update), generally [para. 62].

Friedland, Martin L., Double Jeopardy (1969), p. 129 [para. 79, footnote 1].

Gorman, Wayne, Multiple Count Indictments and the Impact of the Accused Being Acquitted on a Count Subsequently Used as Similar Fact Evidence (1994), 30 C.R.(4th) 222, generally [para. 62].

Mahoney, Richard, Acquittals as Similar Fact Evidence: Another View (2003), 47 Crim. L.Q. 265, generally [para. 62].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (4th Ed. 2005), generally [para. 62].

Stuesser, Lee, Admitting Acquittals as Similar Fact Evidence (2002), 45 Crim. L.Q. 488, pp. 490 [para. 81]; 497 [para. 59].

Wright, Keith, Similar Fact Multiple Count Indictments - A Reply (1994), 32 C.R.(4th) 301, generally [para. 62].

Counsel:

Philip Campbell, for the appellant;

Lucy Cecchetto and Lance Beechener, for the respondent.

This appeal was heard on January 31, 2006, before Sharpe, Blair and Rouleau, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court was released on April 20, 2006, and the following opinions were filed:

Sharpe, J.A. (Rouleau, J.A., concurring) - see paragraphs 1 to 68;

Blair, J.A., dissenting in part - see paragraphs 69 to 96.