R. v. McMillan (G.), (2003) 176 O.A.C. 215 (CA)

• Judge: Feldman, MacPherson and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 12, 2003
• Jurisdiction: Ontario
• Citations: (2003), 176 O.A.C. 215 (CA)

R. v. McMillan (G.) (2003), 176 O.A.C. 215 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. SE.046

Her Majesty The Queen (respondent) v. Gregory McMillan (appellant)

(C33951)

Indexed As: R. v. McMillan (G.)

Ontario Court of Appeal

Feldman, MacPherson and Gillese, JJ.A.

September 12, 2003.

Summary:

The accused was convicted by a jury of fraud, conspiracy to commit fraud and public mischief. He received a global sentence of 15 months' imprisonment. He appealed his conviction and sentence.

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

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - An accused appealed a conviction for three offences, arguing that the trial judge erred in permitting the Crown to cross-examine a Crown witness, Deraiche, on his prior inconsistent written statements that he had given to police (Rowe) - Prior to making the statements, Rowe had shown Deraiche a fabricated statement in which the accused purportedly made a complaint against Deraiche for extortion - Rowe wrote the statement himself on an official police form - The accused's name was at the top and it was written in the first person - It was not disclosed to defence counsel and was "missing" - Rowe did not mention it in his notebook nor in his testimony at the preliminary inquiry - The Crown alleged that the fabricated statement was merely a ruse - The Ontario Court of Appeal allowed the appeal - Rowe's conduct amounted to the criminal offence of forgery - The Crown should not have been permitted to cross-examine Deraiche on his prior inconsistent statements - Rowe's conduct amounted to an abuse of process - However, a stay of proceedings was not appropriate where there was an alternate remedy - The court ordered a new trial in which Deraiche's statements and testimony would be excluded - See paragraphs 17 to 52.

Criminal Law - Topic 255

General principles - Abuse of process - Power of court re prevention and remedies - [See Criminal Law - Topic 253 ].

Criminal Law - Topic 1970

Offences against property - Forgery - Making a false document - A police officer, Rowe, showed a suspect, Deraiche, a fabricated statement in which McMillan purportedly made a complaint against Deraiche for extortion - Rowe hand wrote the statement himself on an official police form - McMillan's name was at the top and it was written in the first person - The trial judge found that the form was not signed - There was no place on the form for a signature - Once Deraiche saw the statement he confessed to several offences and implicated McMillan in a fraud - The Ontario Court of Appeal held that Rowe's conduct amounted to the criminal offence of forgery - Rowe fabricated the statement, knowing it to be false, with the intention of using the document to confront Deraiche in order to induce Deraiche to give him information - See paragraphs 27 to 39.

Criminal Law - Topic 5416

Evidence and witnesses - Witnesses - Cross-examination of Crown witnesses - [See Criminal Law - Topic 253 ].

Evidence - Topic 4760

Witnesses - Examination - Prior inconsistent statements - Cross-examination on prior written statements - [See Criminal Law - Topic 253 ].

Police - Topic 3106

Powers - Investigation - Stratagem and subterfuge - [See Criminal Law - Topic 253 ].

Police - Topic 3107

Powers - Investigation - Questioning of suspects and witnesses - [See Criminal Law - Topic 253 ].

Police - Topic 3116

Powers - Investigation - Illegal police activity - What constitutes - [See Criminal Law - Topic 253 ].

Cases Noticed:

R. v. McInroy and Rouse, [1979] 1 S.C.R. 588; 23 N.R. 589, refd to. [para. 25].

R. v. Carpenter (No. 2) (1982), 1 C.C.C.(3d) 149 (Ont. C.A.), refd to. [para. 26].

R. v. Milgaard (1971), 2 C.C.C.(2d) 206 (Sask. C.A.), leave to appeal dismissed (1971), 4 C.C.C.(2d) 566 (S.C.C.), refd to. [para. 26].

R. v. Gaysek (1971), 15 C.R.N.S. 345 (S.C.C.), refd to. [para. 28].

R. v. Nuosci (1991), 51 O.A.C. 41; 69 C.C.C.(3d) 64 (C.A.), refd to. [para. 29].

R. v. Ogilvie (F.) (1993), 54 Q.A.C. 52; 81 C.C.C.(3d) 125 (C.A.), refd to. [para. 32].

R. v. Stevenson and McLean (1980), 57 C.C.C.(2d) 526 (Ont. C.A.), refd to. [para. 33].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201; 133 C.C.C.(3d) 257, refd to. [para. 36].

R. v. Shirose (S.) - see R. v. Campbell (J.) and Shirose (S.).

R. v. Handy (1978), 45 C.C.C.(2d) 232 (B.C.C.A.), refd to. [para. 42].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159; 21 C.C.C.(3d) 7, refd to. [para. 45].

R. v. Mack, [1988] 2 S.C.R. 903; 90 N.R. 173; 44 C.C.C.(3d) 513, refd to. [para. 46].

R. v. Xenos (J.) (1991), 43 Q.A.C. 212; 70 C.C.C.(3d) 362 (C.A.), refd to. [para. 51].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, refd to. [para. 51].

Counsel:

Roger A. Pinnock, for the respondent;

Melvyn Green, for the appellant.

This appeal was heard on May 22 and 23, 2003, before Feldman, MacPherson and Gillese, JJ.A., of the Ontario Court of Appeal. MacPherson, J.A., delivered the following judgment for the Court of Appeal which was released on September 12, 2003.