R. v. Perkins (T.), 2016 ONCA 588

• Judge: Cronk, Juriansz and Roberts, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 12, 2016
• Jurisdiction: Ontario
• Citations: 2016 ONCA 588;(2016), 352 O.A.C. 149 (CA)

R. v. Perkins (T.) (2016), 352 O.A.C. 149 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. JL.027

Her Majesty the Queen (respondent) v. Tyler Perkins (appellant)

(C57579; 2016 ONCA 588)

Indexed As: R. v. Perkins (T.)

Ontario Court of Appeal

Cronk, Juriansz and Roberts, JJ.A.

July 22, 2016.

Summary:

Police attended the appellant's home after the complainant, the appellant's former domestic partner, called 911. The first officer to arrive located and spoke with the appellant, who was found a short distance away from the apartment he shared with the complainant. In response to one of the officer's questions, the appellant indicated that no threats or assaults had occurred. The complainant told the officers that the appellant had assaulted her, and he was arrested. At trial, the Crown tendered the appellant's utterances through the testimony of the officer to whom he had spoken, and took the position that the whole of the statements were before the court for consideration. The trial judge held that the utterances were inadmissible and could not be considered. She convicted the appellant of assault and two counts of failure to comply with a probation order. The appellant appealed his convictions, arguing that the trial judge erred in excluding his exculpatory statements and by misapprehending the evidence in several material respects. The Crown conceded that the trial judge erred by failing to consider the statements, but submitted that the curative proviso under s. 686(1)(b)(iii) of the Criminal Code should apply.

The Ontario Court of Appeal, Cronk, J.A., dissenting, held that the curative proviso could not be applied and allowed the appeal from the convictions on that basis. The trial judge's error was not harmless or trivial, and it resulted in significant trial unfairness to the appellant. The Crown's case was not overwhelming. The court was not satisfied that the verdict on the assault would necessarily have been the same if the error had not occurred.

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - See paragraphs 19 to 44.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - See paragraphs 19 to 44.

Criminal Law - Topic 5203

Evidence and witnesses - General - Admissibility of exculpatory evidence - See paragraphs 19 to 44.

Criminal Law - Topic 5343

Evidence and witnesses - Confessions and voluntary statements - Exculpatory statements by accused - See paragraphs 19 to 44.

Counsel:

Jennifer Penman, for the appellant;

Brock Jones, for the respondent.

This appeal was heard on February 12, 2016, before Cronk, Juriansz and Roberts, JJ.A., of the Ontario Court of Appeal. The judgment of the Court of Appeal was delivered on July 22, 2016, including the following opinions:

Roberts, J.A. (Juriansz, J.A., concurring) - see paragraphs 1 to 45;

Cronk, J.A., dissenting - see paragraphs 46 to 109.