R. v. Maugey (C.) et al., (2000) 133 O.A.C. 255 (CA)

• Judge: Abella, Laskin and Feldman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 30, 2000
• Jurisdiction: Ontario
• Citations: (2000), 133 O.A.C. 255 (CA)

R. v. Maugey (C.) (2000), 133 O.A.C. 255 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. JL.002

Her Majesty The Queen (respondent) v. Calvin Maugey (appellant)

(C28702)

Her Majesty The Queen (respondent) v. Desmond Prashad (appellant)

(C29319)

Indexed As: R. v. Maugey (C.) et al.

Ontario Court of Appeal

Abella, Laskin and Feldman, JJ.A.

June 30, 2000.

Summary:

Four accused were involved in an at­tempted robbery. At their joint trial, Ally and Ecker were convicted of attempted murder, conspiracy to rob and robbery. Ally was convicted of aggravated assault. The other two accused, Maugey and Prashad, were convicted of conspiracy to rob, robbery and being accessories after the fact. Only Maugey and Prashad appealed their convic­tions. They asserted that the jury charge was inadequate.

The Ontario Court of Appeal allowed the appeals and ordered a new trial.

Civil Rights - Topic 3126

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - [See Criminal Law - Topic 2677 ].

Civil Rights - Topic 4909

Presumption of innocence - General prin­ciples - Circumstances not infringing pre­sumption - [See Criminal Law - Topic 2677 ].

Criminal Law - Topic 2673

Attempts, conspiracies, accessories and parties - Conspiracies - Jury charge - Four accused involved in an attempted robbery were tried together on, inter alia, con­spiracy to commit robbery charges - They all testified that Maugey and Prashad were not part of the conspiracy - Prashad and Maugey had given police statements after the alleged conspiracy was concluded - The other accused had also made state­ments - This resulted in both exculpatory and inculpatory evidence respecting Maugey and Prashad's involvement - In his jury charge, the trial judge outlined the three-step process to establish conspiracy, but did not indicate which pieces of evi­dence were directly admissible against each of the alleged conspirators - Maugey and Prashad were convicted - They appealed - The Ontario Court of Appeal held that the trial judge had erred in failing to set out the evidence which was directly admissible against each alleged conspirator - See paragraphs 26 to 39.

Criminal Law - Topic 2677

Attempts, conspiracies, accessories and parties - Conspiracies - Separate trials for co-conspirators - Four accused were in­volved in an attempted robbery - They were tried together on, inter alia, con­spiracy to commit robbery charges - One accused, Prashad, made a voluntary incrim­inating statement respecting his par­ticipation and that of another co-accused, Maugey - Maugey moved for a severance of his trial based on Prashad's statement which refuted Maugey's defence that he had no prior knowledge of the robbery - He asserted that the statement was so prejudicial that the only way to cure it was by separate trial - The trial judge dismissed the motion, but gave the jury a clear in­struction that this statement was only evidence against Prashad - Maugey ap­pealed, asserting that the rule of joinder violated his s. 7 and s. 11(d) Charter right to a fair hearing - The Ontario Court of Appeal rejected the assertion - The rule of joinder was valid - There was no reason to interfere with the trial judge's approach - See paragraphs 57 to 66.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence gener­ally - Four accused involved in an at­tempted robbery were tried together - They faced five charges, including a conspiracy charge, involving various combinations of the accused - The trial judge outlined the law of each offence and its applicability to the alleged roles of each accused in the respective offences - He also instructed the jury to consider all of the circumstances and referred to some of the evidence - The jury convicted the accused - Two of the accused appealed, asserting that the trial judge failed to present the theory of the defence and to outline the evidence sup­porting that theory - The Ontario Court of Appeal agreed - This was a complex charge with many legal principles - The trial judge was therefore required to set out the respective position of each accused on each charge and to relate the evidence to each position - A lack of objection to the charge did not relieve the judge from this obligation - See paragraphs 16 to 25.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - [See Criminal Law - Topic 4352 and Criminal Law - Topic 4391.2 ].

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 4362

Procedure - Charge or directions - Jury or judge alone - Directions regarding separa­tion of evidence against several accused in a joint trial - [See Criminal Law - Topic 4352 and Criminal Law - Topic 4391.2 ].

Criminal Law - Topic 4375

Procedure - Charge or directions - Jury or judge alone - Directions regarding incrim­inating statements by accused or co-ac­cused - [See Criminal Law - Topic 4391.2 ].

Criminal Law - Topic 4391.2

Procedure - Charge or directions - Jury or judge alone - Directions following ques­tions by jury - Ally and Ecker robbed a store - Prashad and Maugey were allegedly involved - They were tried together - Charges included conspiracy to rob and robbery - Ally and Ecker stated that they were the only parties to the conspiracy - The jury asked a question respecting the statements' impact on Maugey and Prashad - Maugey's counsel was concerned that the jury would use the statements to find intent to rob by Maugey and Prashad - The trial judge refused to recharge the jury - The Ontario Court of Appeal held that the jury's question showed their possible con­fusion regarding what use they could make of the statements against Maugey and Prashad - The trial judge erred in failing to clarify that the jury could not use Ally and Ecker's guilty pleas or their admissions as proof of the intent of Maugey and Prashad - See paragraphs 46 to 52.

Criminal Law - Topic 4392

Procedure - Charge or directions - Jury or judge alone - Directions re inferences of guilt (incl. consciousness of guilt) - Four accused were involved in an attempted robbery - They were charged with, inter alia, conspiracy to rob and robbery - In her closing address, Crown counsel referred to the lies that one accused told police and with his actions in taking an injured co-accused to a distant hospital rather than the closest one as evidencing consciousness of guilt - The trial judge did not address that issue in his jury charge - The Ontario Court of Appeal held that such an instruc­tion should have been given, using ex­amples from the evidence of specific after-the-fact conduct together with the ac­cused's explanation for that conduct in each instance - See paragraphs 54 to 56.

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object -Effect of - [See Criminal Law - Topic 4352 ].

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - [See Criminal Law - Topic 4392 ].

Criminal Law - Topic 4482

Procedure - Trial - Joint or separate trials of two or more persons - [See Criminal Law - Topic 2677 ].

Criminal Law - Topic 5471

Evidence and witnesses - Joint trials - General - [See Criminal Law - Topic 2677 ].

Cases Noticed:

Azoulay v. R. (1952), 104 C.C.C. 97 (S.C.C.), refd to. [para. 16].

Colpitts v. R., [1966] 1 C.C.C. 146 (S.C.C.), refd to. [para. 16].

R. v. C.D. (2000), 132 O.A.C. 331 (C.A.), refd to. [para. 16].

R. v. Malott (M.A.), [1998] 1 S.C.R. 123; 222 N.R. 4; 106 O.A.C. 132, refd to. [para. 16].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 43 O.R.(3d) 378 (C.A.), refd to. [para. 17].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 17].

R. v. Dwyer (1977), 35 C.C.C.(2d) 400 (Ont. C.A.), refd to. [para. 23].

R. v. Pintar (J.) (1996), 93 O.A.C. 172; 110 C.C.C.(3d) 402 (C.A.), refd to. [para. 25].

R. v. Baron and Wertman (1976), 31 C.C.C.(2d) 525 (Ont. C.A.), refd to. [para. 28].

R. v. Carter, [1982] 1 S.C.R. 938; 47 N.R. 288; 46 N.B.R.(2d) 142; 121 A.P.R. 142; 67 C.C.C.(2d) 568, refd to. [para. 28].

R. v. Diu (A.B.) et al. (2000), 133 O.A.C. 201 (C.A.), refd to. [para. 37].

R. v. Lam and Diu - see R. v. Diu (A.B.) et al.

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267; 38 C.C.C.(3d) 481, refd to. [para. 50].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321; 86 C.C.C.(3d) 97, refd to. [para. 61].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140 (C.A.), refd to. [para. 62].

R. v. Creighton (D.J.) and Crawford (C.), [1995] 1 S.C.R. 858; 179 N.R. 161; 81 O.A.C. 359; 96 C.C.C.(3d) 481, refd to. [para. 63].

R. v. Crawford (C.) - see R. v. Creighton (D.J.) and Crawford (C.).

Counsel:

Riun Shandler, and J.A. Ramsay, for the respondent;

Peter Hambly and Baran Gerez, for the appellant, Calvin Maugey;

Richard Litkowski, for the appellant, Des­mond Prashad.

These appeals were heard on May 12, 1999, by Abella, Laskin and Feldman, JJ.A., of the Ontario Court of Appeal.

Feldman, J.A., delivered the following judgment for the Court of Appeal on June 30, 2000.