R. v. McCarthy (M.), (1995) 91 O.A.C. 348 (CA)

• Judge: Finlayson, Carthy and Labrosse, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 26, 1995
• Jurisdiction: Ontario
• Citations: (1995), 91 O.A.C. 348 (CA)

R. v. McCarthy (M.) (1995), 91 O.A.C. 348 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Michael McCarthy (applicant/appellant)

(C18707)

Indexed As: R. v. McCarthy (M.)

Ontario Court of Appeal

Finlayson, Carthy and Labrosse, JJ.A.

July 5, 1995.

Summary:

The accused was convicted of numerous weapons charges. He appealed the convic­tions.

The Ontario Court of Appeal, Carthy, J.A., dissenting, dismissed the appeal.

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses - The accused was convicted of weapons offences - At the voir dire he alleged that police abuse rendered a search of his apartment unreasonable - An officer testified that he did not see the accused struck in the head - The accused was not cross-examined regarding abuse - Defence counsel did not cross-examine the officer but argued that all allegations except re­specting the blows to the head stood un­contradicted - The trial judge commented that he was not prepared at that time to make a finding of credibility and that the matter could be dealt with more specifi­cally during trial - The issue did not come up again - The Ontario Court of Appeal affirmed the convictions, holding that the trial judge was in the best position to assess the evidence and he was entitled to reject the accused's evidence.

Cases Noticed:

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193; 73 C.R.(3d) 129; 45 C.R.R. 49, refd to. [para. 2].

R. v. Verney (M.) (1993), 67 O.A.C. 279; 87 C.C.C.(3d) 363 (C.A.), refd to. [para. 5].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193; 29 C.R.(4th) 113, refd to. [para. 6].

R. v. Barrett (D.), [1995] 1 S.C.R. 752; 179 N.R. 68; 80 O.A.C. 1; 96 C.C.C.(3d) 319, refd to. [para. 6].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273; 46 C.C.C.(3d) 479; 67 C.R.(3d) 87; 56 D.L.R.(4th) 673, refd to. [para. 7].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 2].

Counsel:

Frank R. Addario, for the appellant;

Gary T. Trotter, for the respondent.

This appeal was heard on June 26, 1995, before Finlayson, Carthy and Labrosse, JJ.A., of the Ontario Court of Appeal. An endorsement was released by the court on July 5, 1995, including the following opin­ions:

Finlayson and Labrosse, JJ.A. - see paragraphs 1 to 8;

Carthy, J.A., dissenting - see paragraphs 9 to 18.