R. v. R.W.A., (2005) 203 O.A.C. 56 (CA)

JudgeDoherty, Weiler and Juriansz, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateOctober 13, 2005
JurisdictionOntario
Citations(2005), 203 O.A.C. 56 (CA)

R. v. R.W.A. (2005), 203 O.A.C. 56 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. OC.046

Her Majesty the Queen (respondent) v. R.W.A. (appellant)

(C35653; C35800)

Indexed As: R. v. R.W.A.

Ontario Court of Appeal

Doherty, Weiler and Juriansz, JJ.A.

October 13, 2005.

Summary:

The accused teacher was convicted of sexual assault, sexual exploitation, sexual assault with a weapon and uttering death threats. The complainant was a former student of the accused. The accused received concurrent sentences totalling four years' imprisonment. The accused appealed from his convictions, alleging numerous errors in the conduct of the trial. He also sought to introduce fresh evidence on the appeal, most of which was directed at his assertion that he was the victim of ineffective assistance by trial counsel. The Crown appealed the sentences imposed by the trial judge.

The Ontario Court of Appeal dismissed the appeals.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Barristers and Solicitors - Topic 1545

Relationship with client - Duty to client - General - Obligation of loyalty - [See fourth Criminal Law - Topic 4488 ].

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - [See first and second Criminal Law - Topic 4488 ].

Criminal Law - Topic 4293.2

Procedure - Trial judge - Duties and functions of - Comment respecting failure to testify -The accused was convicted of sexual offences and uttering death treats - He did not testify - During defence counsel's closing address he said "There is no requirement at law that [the accused] testify. It is a decision that was made by me and by me alone" - At the beginning of his charge, the trial judge told the jury that counsel should not have commented on why the accused did not testify and directed them to disregard the statement - On appeal, the accused argued that the jury instruction constituted an impermissible comment by the trial judge on the accused's failure to testify and that it demeaned defence counsel in the eyes of the jury - The Ontario Court of Appeal rejected the argument - The trial judge did no more than tell the jury to disregard what he considered to be an irrelevant submission - His instructions could not be understood as disparaging counsel for the accused, or commenting on the accused's failure to testify - See paragraphs 98 to 99.

Criminal Law - Topic 4302

Procedure - Trial judge - Duties and functions of - Respecting conduct of defence - The accused appealed from his convictions for sexual offences and uttering death threats - The accused argued that his failure to testify should have caused the trial judge to declare a mistrial or at least make inquiries of the accused to ensure that he understood that he had a constitutional right to testify and that it was he who had to decide whether he would testify - The accused contended that it should have been obvious to the trial judge that the accused could not obtain a fair trial unless he testified and that when he did not testify, the trial judge should have intervened - The Ontario Court of Appeal rejected the argument - The court stated that it could not imagine a situation in which a trial judge would be justified in unilaterally declaring a mistrial because an accused did not testify without at least first conducting some inquiry - Further, it would take the clearest indication that something had gone fundamentally wrong in the client/solicitor relationship, or in the accused's understanding of his or her right to testify, before a trial judge would be entitled to make the kind of inquiries urged by the accused - See paragraphs 83 to 85.

Criminal Law - Topic 4302

Procedure - Trial judge - Duties and functions of - Respecting conduct of defence - The accused appealed from his convictions for sexual offences and uttering death threats - The accused argued that his failure to testify should have caused the trial judge to declare a mistrial or at least make inquiries of the accused to ensure that he understood that he had a constitutional right to testify and that it was he who had to decide whether he would testify - The accused referred to, inter alia, a statement made by defence counsel in his closing address that he alone had made the decision that the accused would not testify - The Ontario Court of Appeal rejected the argument - The trial judge did not interpret defence counsel's comments as a statement that he had prevented the accused from testifying despite the accused's desire to testify - Rather, the trial judge treated counsel's comments as an attempt to avoid any adverse inference that the jury might draw from the accused's failure to testify by personally taking responsibility for that decision - There was no error in the trial judge's interpretation of counsel's remarks - See paragraphs 91 to 97.

Criminal Law - Topic 4349.3

Procedure - Jury - Evidence - Videotapes or audiotapes - The accused teacher was convicted of sexual offences and uttering death threats - The complainant, a former student of the accused, had made a videotaped statement to the police, which was admitted into evidence under s. 715.1 of the Criminal Code - On appeal, the accused argued that the trial judge erred in allowing the jury to take the accused's videotaped statement to the jury room during its deliberations - The Ontario Court of Appeal rejected the argument - The trial judge had a discretion to allow the jury to take the videotaped statement with them during their deliberations - An appellate court would interfere with that exercise of discretion only where the accused could demonstrate that his right to a fair trial was compromised by allowing the jury to take the videotape with them during their deliberations - Absent any suggestion at trial that the trial judge should not allow the jury to take the videotaped statement to the jury room, it was difficult to see how the trial judge could be said to have misused his discretion - See paragraphs 77 to 79.

Criminal Law - Topic 4349.3

Procedure - Jury - Evidence - Videotapes or audiotapes - The accused teacher was convicted of sexual offences and uttering death threats - The complainant, a former student of the accused, had made a videotaped statement to the police, which was admitted into evidence under s. 715.1 of the Criminal Code - On appeal, the accused argued that the trial judge improperly reviewed the statutory conditions for admissibility of the complainant's videotaped statement with the jury and told the jury that those conditions had been met - The Ontario Court of Appeal rejected the argument - It was not necessary for the trial judge to refer to the conditions for admissibility in s. 715.1 and the trial judge's reference to the statutory preconditions to admissibility gave the jury information that was irrelevant to their deliberations - However, those instructions did not prejudice the accused - Nothing in the instructions concerning the preconditions to admissibility suggested that the trial judge's decision to admit the statement gave it enhanced reliability or credibility - See paragraph 82.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused appealed from his convictions for sexual offences and uttering death threats - The accused alleged non-direction and misdirection in the jury instruction on reasonable doubt - The defence had asked the trial judge to instruct the jury in accordance with the language from R. v. Starr (S.C.C.) where the court stated that "an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities" - However, the trial judge did not use that language - The Ontario Court of Appeal rejected the ground of appeal - The court had some difficulty understanding the trial judge's reticence to place the reasonable doubt standard along the proof continuum described in Starr - However, the language in Starr was not mandatory - A reasonable jury hearing the trial judge's instruction would have no difficulty understanding that proof beyond a reasonable doubt, while short of absolute certainty, was well beyond probable or likely guilt - The trial judge's use of the word "sure" reinforced that instruction - See paragraphs 31 to 38.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused appealed from his convictions for sexual offences and uttering death threats - The accused argued that the trial judge erred in failing to tell the jury that a reasonable doubt could arise from the absence of evidence -The Ontario Court of Appeal rejected the argument - There was no danger that the failure to expressly tell the jury that a reasonable doubt could arise from the absence of evidence would have led the jury to misapprehend the proper burden of proof - The trial judge repeatedly told the jury that the reasonable doubt standard was to be applied to "all of the evidence considered as a whole" - Those words suggested that gaps and silences in the evidence had to be factored into the reasonable doubt assessment - This was also not a case where there was any real likelihood that the question of whether the Crown had met its burden would turn on the absence of evidence - See paragraphs 39 to 44.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - The accused teacher was convicted of sexual offences and uttering death threats - The complainant, a former student of the accused, had made a videotaped statement to the police, which was admitted into evidence under s. 715.1 of the Criminal Code - On appeal, the accused argued that since the trial judge left the videotaped statement with the jury for their review during their deliberations, he should have conducted a more detailed review of the complainant's cross-examination to ensure that the jury had a proper appreciation of the entirety of the complainant's evidence - The Ontario Court of Appeal rejected the argument - This was not a case where the main attack on the complainant's evidence rested on an assertion that his testimony was substantially different and more favourable to the accused than his videotaped statement - Rather, the defence position was that the complainant's allegations both in his videotaped statement and repeated in his testimony were too incredible to believe - The failure to review the complainant's cross-examination in more detail did not prejudice the accused or render the trial unfair - See paragraph 81.

Criminal Law - Topic 4353

Procedure - Charge or directions - Jury or judge alone - Directions regarding corroboration - [See second Criminal Law - Topic 4354 ].

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused was convicted of sexual offences and uttering death threats -The accused appealed, arguing that there were errors in the trial judge's Vetrovec warning on the dangers of accepting the complainant's evidence - The Ontario Court of Appeal held that there was no error in the Vetrovec instruction - First, the trial judge identified the complainant as a witness whose evidence should be approached with caution - Second, the trial judge identified the factors that brought the complainant's credibility into question, including his prior acts of dishonesty and criminality, his attempt to extract $10,000 from the accused and his potential monetary gain arising from a threatened lawsuit against the accused - Third, the trial judge told the jury that while it could convict on the complainant's evidence alone if convinced by it beyond a reasonable doubt, it would be dangerous for them to do so in the absence of confirmatory evidence - Fourth, the trial judge instructed the jury to examine the evidence and determine whether there was evidence independent of the complainant's that the jury accepted and that supported his evidence on important matters - See paragraphs 52 to 68.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused was convicted of sexual offences and uttering death threats - The accused appealed - He argued that there were errors in the trial judge's Vetrovec warning on the dangers of accepting the complainant's evidence and in his instructions as to the evidence that the jury could consider as potentially confirmatory of the complainant's evidence - The Ontario Court of Appeal dismissed the ground of appeal - There was no error in the Vetrovec instruction -The trial judge also properly defined confirmatory evidence when he said "What you should look for is evidence that agrees with the important parts of [the complainant's] evidence that makes you more confident that his testimony is true" - The trial judge also correctly told the jury that it was their responsibility to determine whether there was any evidence that was confirmatory of important parts of the complainant's evidence - While the trial judge erroneously referred to the evidence of one witness as potentially confirmatory, that reference could not have caused any prejudice to the accused - See paragraphs 52 to 68.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The accused was convicted of sexual offences and uttering death threats - The complainant, a former student of the accused, had made a videotaped statement to the police, which was admitted into evidence under s. 715.1 of the Criminal Code - On appeal, the accused argued that the trial judge should have specifically told the jury that the Vetrovec caution which he gave them also applied to the contents of the videotaped statement - The Ontario Court of Appeal rejected the argument - The court had no doubt that the jury understood that the Vetrovec caution applied to everything that the complainant said about the alleged abuse, whether in the videotaped statement or in his oral testimony - See paragraph 80.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - The accused appealed from his convictions for sexual offences and uttering death threats - The accused argued that the trial judge's instruction to the jury was slanted in favour of the Crown and that it inadequately put the position of the defence to the jury and all but ignored evidence vital to the defence - The Ontario Court of Appeal rejected the argument - The trial judge outlined the position of the Crown and the defence in brief terms, but in a balanced and accurate way - The trial judge also chose not to review the evidence in detail, but instead to provide capsulized descriptions of parts of the evidence when referring to issues to which that evidence had relevance - The trial judge's decision not to review all of the evidence did not render his instruction inadequate or unfair - Similarly, his decision not to repeat the Crown and defence arguments at length could not be equated with a failure to put the positions of the parties to the jury - See paragraphs 45 to 51.

Criminal Law - Topic 4388.1

Procedure - Charge or directions - Jury or judge alone - Directions respecting verdicts generally - The accused was convicted of sexual offences and uttering death threats - The trial judge told the jury on several occasions that if, on the facts as found by the jury, they were satisfied that the Crown had proved each of the essential elements of any of the charges beyond a reasonable doubt, they were required to convict - On appeal, the accused argued that the trial judge's direction was an instruction to convict and a usurpation of the jury's function - The Ontario Court of Appeal rejected the argument - The trial judge's instruction that the jury was duty bound to convict if it made certain findings beyond a reasonable doubt, and equally obligated to acquit if it did not, was mandated both by the rule of law and the oath taken by each juror to truly try the case - See paragraphs 26 to 30.

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - The Ontario Court of Appeal stated that "An appellant seeking to quash a conviction on the basis of ineffective assistance of counsel must demonstrate three things. First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel's acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard ... The reasonableness analysis must proceed upon a 'strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance' ... Third, the appellant must demonstrate that counsel's ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel's ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different" - See paragraphs 119 to 120.

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - The accused was convicted of sexual offences and uttering death threats - The accused appealed, alleging incompetence of trial counsel - The primary thrust of the accused's ineffective assistance of counsel claim was directed at the accused's failure to testify - The accused argued that trial counsel and not the accused decided that the accused would not testify and that he did not know that it was his decision to make - Alternatively, the accused argued that if he made the decision not to testify, he did so based on counsel's advice, which was so wrongheaded as to render counsel's representation incompetent - The Ontario Court of Appeal rejected the argument - The accused did not demonstrate that his counsel unilaterally made the decision that he would not testify - Further, counsel's advice to the accused that he should not testify was based on relevant considerations and was well within the margins of competence - See paragraphs 135 to 152.

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - The accused was convicted of sexual offences and uttering death threats - The accused appealed, alleging incompetence of trial counsel - The accused further submitted that Crown counsel's role in the preparation of the affidavits of trial counsel and trial counsel's assistant contravened the court's Procedural Protocol Regarding Allegations of Incompetence of Trial Counsel in Criminal Cases - The Ontario Court of Appeal rejected the argument - Crown counsel followed the process contemplated by the Protocol - He ensured that a full response to the accused's allegations was available to the court and to counsel for the accused for the purposes of cross-examination - Crown counsel's conduct was exactly what the court expected of Crown counsel on such appeals and it facilitated the search for the truth as it related to the allegations of ineffective assistance of counsel - See paragraphs 163 to 166.

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - The accused was convicted of sexual offences and uttering death threats - The accused appealed, alleging incompetence of trial counsel - The accused further submitted that Crown counsel's role in the preparation of the affidavits of trial counsel and trial counsel's assistant caused trial counsel to breach his duty of loyalty to the accused - The accused submitted that the process by which the affidavits of trial counsel and his assistant were produced resulted in the conscription of trial counsel against the accused, to whom trial counsel owed a continuing duty - The Ontario Court of Appeal rejected the argument - The cooperation of trial counsel and his assistant in preparing the Crown's response to the accused's allegations did not violate any continuing duty of loyalty that trial counsel owed to the accused - See paragraph 158.

Criminal Law - Topic 4488

Procedure - Trial - Representation of accused - The accused was convicted of sexual offences and uttering death threats - The accused appealed, alleging incompetence of trial counsel - The accused further submitted that Crown counsel's role in the preparation of the affidavits of trial counsel and trial counsel's assistant contaminated any potential recollection of trial counsel or his assistant so as to render their affidavits inadmissible - The Ontario Court of Appeal rejected the argument - The affidavits were the affidavits of trial counsel and his assistant and Crown counsel's preparation of the affidavits did not make them any less the affidavits of those who swore them - Crown counsel's role in the preparation of the affidavits in no way inhibited the accused's counsel from cross-examining trial counsel and his assistant so as to bring out any relevant events that may have been omitted from the affidavits - See paragraphs 160 to 162.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of court of appeal - Receiving fresh evidence - General - The accused was convicted of sexual offences and uttering death threats - The accused appealed and applied under s. 683(1) of the Criminal Code to adduce fresh evidence on the appeal relating to the credibility of Crown witnesses or to the facts in issue at trial - The Ontario Court of Appeal ruled that the evidence was not admissible - Some of the evidence constituted inadmissible hearsay - Other evidence was not admissible as fresh evidence where it could not reasonably be expected to have any effect on the result - See paragraphs 101 to 113.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of court of appeal - Receiving fresh evidence - General - The accused teacher was convicted of sexual offences and uttering death threats against a former student - The accused appealed and applied under s. 683(1) of the Criminal Code to adduce fresh evidence - The accused sought to adduce, inter alia, a copy of the statement of claim filed in a civil action brought against the accused by the complainant and his mother - The accused argued that some of the allegations in the statement of claim were inconsistent with the complainant's trial testimony - The Ontario Court of Appeal held that the statement of claim was not admissible - The statement of claim was not authored by the complainant and was not a statement made by him - The potential impeachment value of the document as against the complainant, if any, could not be determined because the accused's counsel did not seek to question the complainant on the contents of the statement of claim in support of his application under s. 683(1) - The statement of claim had no impeachment value and would not be admissible for that purpose when tendered through the accused - See paragraphs 105 to 106.

Criminal Law - Topic 5464

Evidence and witnesses - Evidence of children - Out of court testimony (incl. videotaped statements) - The accused teacher was convicted of sexual offences and uttering death threats - The Crown alleged that the accused had sexually abused the complainant beginning in 1993 when the complainant was in the accused's grade six class and extending through to February 1998 - The accused appealed - He argued that a videotaped statement made by the complainant to the police on February 20, 1998 was not "made within a reasonable time after the alleged offence" as required by s. 715.1 of the Criminal Code and it should not have been admitted - He submitted that a videotaped statement was admissible under s. 715.1 only if the statement was made within a reasonable time of all of the allegations of sexual abuse made in the statement and that in this case the events described by the complainant in the videotaped statement commenced almost five years before the making of the statement - The Ontario Court of Appeal rejected the argument - Where the alleged offence involved sexual abuse over a prolonged period of time, the operative date was the last incident of abuse - See paragraphs 69 to 76.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - [See first and third Criminal Law - Topic 4354 ].

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - What constitutes corroboration - [See second Criminal Law - Topic 4354 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The accused teacher was convicted of sexual assault, sexual exploitation, sexual assault with a weapon and uttering death threats - The Crown alleged that the accused had sexually abused the complainant for almost five years, beginning when the complainant was in the accused's grade six class - The trial judge imposed concurrent sentences totalling four years' imprisonment - The Crown appealed, arguing that the trial judge erred in principle in treating the absence of violence, apart from that inherent in the sexual abuse, as a mitigating factor on sentence - The Crown also submitted that the sentence was manifestly unfit - The Ontario Court of Appeal dismissed the appeal - Although the trial judge's reference to the absence of violence occurred immediately after his reference to mitigating factors, the court was reluctant to read the trial judge as having given the accused credit for not coupling long-term sexual abuse with gratuitous or non-sexual acts of violence - The sentence was in the appropriate range - See paragraphs 167 to 173.

Criminal Law - Topic 5933

Sentence - Sexual assault with weapon, threats to third party or causing bodily harm - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5949

Sentence - Sexual interference or exploitation by person in position of trust or authority - [See Criminal Law - Topic 5932 ].

Evidence - Topic 3353

Documentary evidence - Judicial proceedings - Pleadings - [See second Criminal Law - Topic 4970 ].

Cases Noticed:

R. v. Gunning (J.J.) (2005), 333 N.R. 286; 211 B.C.A.C. 51; 349 W.A.C. 51; 196 C.C.C.(3d) 123 (S.C.C.), refd to. [para. 28].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218; 118 C.C.C.(3d) 1, consd. [para. 31].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 147 C.C.C.(3d) 449, consd. [para. 31].

R. v. Pan (R.W.); R. v. Sawyer (B.)(1999), 120 O.A.C. 1; 134 C.C.C.(3d) 1 (C.A.), affd. (2001), 270 N.R. 317; 147 O.A.C. 1; 155 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 39].

R. v. Rochon (J.) (2003), 171 O.A.C. 64; 173 C.C.C.(3d) 321 (C.A.), leave to appeal refused (2004), 333 N.R. 399 (S.C.C.), refd to. [para. 39].

R. v. Rhee (D.G.), [2001] 3 S.C.R. 364; 275 N.R. 281; 157 B.C.A.C. 30; 256 W.A.C. 30; 158 C.C.C.(3d) 129, refd to. [para. 39].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 42].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209; 78 C.C.C.(3d) 289, refd to. [para. 48].

R. v. MacKinnon (T.N.) et al. (1999), 117 O.A.C. 258; 132 C.C.C.(3d) 545 (C.A.), refd to. [para. 48].

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), leave to appeal dismissed [2004] S.C.C.A. No. 246, refd to. [para. 53].

R. v. Krugel (N.R.) (2000), 129 O.A.C. 182; 143 C.C.C.(3d) 367 (C.A.), refd to. [para. 55].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165; 82 C.C.C.(3d) 310, refd to. [para. 58].

R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241; 85 C.C.C.(3d) 289, refd to. [para. 73].

R. v. R.W.N. (2004), 182 O.A.C. 150 ; 181 C.C.C.(3d) 470 (C.A.), refd to. [para. 75].

R. v. S.M. (1995), 165 A.R. 307; 89 W.A.C. 307; 98 C.C.C.(3d) 526 (C.A.), refd to. [para. 75].

R. v. C.C.F., [1997] 3 S.C.R. 1183; 220 N.R. 362; 104 O.A.C. 321; 120 C.C.C.(3d) 225, refd to. [para. 75].

R. v. Kilabuk (1990), 60 C.C.C.(3d) 413 (N.W.T.S.C.), refd to. [para. 78].

R. v. Toten (W.P.) (1993), 63 O.A.C. 321; 83 C.C.C.(3d) 5 (C.A.), refd to. [para. 78].

R. v. Foreman (R.E.) (2002), 166 O.A.C. 60; 169 C.C.C.(3d) 489 (C.A.), leave to appeal refused (2003), 321 N.R. 397; 191 O.A.C. 398 (S.C.C.), refd to. [para. 82].

R. v. Smith (I.) (1997), 105 O.A.C. 141; 120 C.C.C.(3d) 500 (C.A.), refd to. [para. 96].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181; 50 C.C.C.(2d) 193, refd to. [para. 102].

R. v. Lévesque (R.) (2000), 260 N.R. 165; 148 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 102].

R. v. O'Brien, [1978] 1 S.C.R. 591; 16 N.R. 271; 35 C.C.C.(2d) 209, refd to. [para. 102].

R. v. Babinski (R.R.) (1999), 122 O.A.C. 1; 135 C.C.C.(3d) 1 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 201, refd to. [para. 102].

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), leave to appeal denied [1997] 1 S.C.R. vii; 208 N.R. 79; 99 O.A.C. 79, refd to. [para. 118].

R. v. L.C.B. (1996), 88 O.A.C. 81; 104 C.C.C.(3d) 353 (C.A.), refd to. [para. 118].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 143 C.C.C.(3d) 289, refd to. [para. 119].

R. v. White (H.S.) and Sennets (s. ) (1997), 99 O.A.C. 1; 114 C.C.C.(3d) 225 (C.A.), refd to. [para. 119].

R. v. E.R.M. (2002), 217 Sask.R. 259; 265 W.A.C. 259; 163 C.C.C.(3d) 343 (C.A.), refd to. [para. 139].

R. v. Stuckless (G.) (1998), 111 O.A.C. 357; 127 C.C.C.(3d) 225 (C.A.), refd to. [para. 170].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327, refd to. [para. 171].

Authors and Works Noticed:

Proulx, Michel, and Layton, David, Ethics and Canadian Criminal Law (2001), pp. 114 to 130 [para. 139]; 224, 225 [para. 158].

Watt, David, Ontario Specimen Jury Instructions (Criminal) (2003), pp. 101 [para. 36, footnote 2]; 162 [para. 81, footnote 3].

Counsel:

Morris Manning, Q.C. and Jonathan T. Feasby, for the appellant;

Howard Leibovich and Kenneth Campbell, for the respondent.

These appeals were heard on June 6 and 17, 2005, before Doherty, Weiler and Juriansz, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Doherty, J.A., and was released on October 13, 2005.

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67 practice notes
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    • Court of Appeal (Alberta)
    • April 17, 2015
    ...BCCA 667, leave to appeal refused (2004), 332 N.R. 396; 211 B.C.A.C. 320; 349 W.A.C. 320 (S.C.C.), refd to. [para. 14]. R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 26]. R. v. Archer - see R. v. R.W.A. R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R......
  • R. v. Worm (J.) et al., 2014 SKCA 94
    • Canada
    • Saskatchewan Court of Appeal (Saskatchewan)
    • September 15, 2014
    ...103]. R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 109]. R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. R. v. Archer - see R. v. R.W.A. R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A......
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64 cases
  • R. v. Smith (T.G.), 2007 ABCA 237
    • Canada
    • Court of Appeal (Alberta)
    • October 11, 2006
    ...R. v. Malott (M.A.), [1998] 1 S.C.R. 123; 222 N.R. 4; 106 O.A.C. 132, folld. [para. 77]. R. v. Archer - see R. v. R.W.A. R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. R. v. C.E.N., [2003] A.R. Uned. 585; 2003 ABCA 283, refd to. [para. 84]. R. v. Thériault, [1......
  • R. v. Meer (J.D.), (2015) 600 A.R. 66
    • Canada
    • Court of Appeal (Alberta)
    • April 17, 2015
    ...BCCA 667, leave to appeal refused (2004), 332 N.R. 396; 211 B.C.A.C. 320; 349 W.A.C. 320 (S.C.C.), refd to. [para. 14]. R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 26]. R. v. Archer - see R. v. R.W.A. R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R......
  • R. v. Worm (J.) et al., 2014 SKCA 94
    • Canada
    • Saskatchewan Court of Appeal (Saskatchewan)
    • September 15, 2014
    ...103]. R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 109]. R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. R. v. Archer - see R. v. R.W.A. R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A......
  • R. v. Le (T.D.),
    • Canada
    • Court of Appeal (Manitoba)
    • October 3, 2011
    ...[para. 174]. R. v. S.G.T. (2011), 366 Sask.R. 90; 506 W.A.C. 90; 265 C.C.C.(3d) 550; 2011 SKCA 4, refd to. [para. 174]. R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. Antoine v. R. (1984), 40 C.R.(3d) 375 (Que. C.A.), affd. [1988] 1 S.C.R. 212; 84 N.R. 80; 12 ......
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1 firm's commentaries
  • Court Of Appeal Summaries (July 12-16)
    • Canada
    • Mondaq Canada
    • July 21, 2021
    ...v. M.S., 2010 ONCA 196, A.M. v. C.H., 2019 ONCA 764, Godard v. Godard, 2015 ONCA 568, M.P.M. v. A.L.M., 2021 ONCA 465, R. v. Archer (2005), 203 O.A.C. 56 (C.A.), McGregor v. Pitawanakwat, 2017 ONCA 77, Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, R......
2 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Ethics and Criminal Law. Second Edition
    • June 19, 2015
    ...R v Arcangioli, [1994] 1 SCR 129, 87 CCC (3d) 289, [1994] SCJ No 5 ............. 632 R v Archer (2005), 203 OAC 56, 202 CCC (3d) 60, [2005] OJ No 4348 (CA) .............................................................. 105, 106, 156, 217, 412 R v Arsenault (1956), 115 CCC 400, [1956] NBJ No......
  • Table of cases
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • June 23, 2020
    ...2 SCR 992, 149 CCC (3d) 449, 2000 SCC 65 ................................................... 150, 157, 178, 181, 182–84, 588 R v Archer (2005), 203 OAC 56, 34 CR (6th) 271, [2005] OJ No 4348 (CA) ......................................................................................... 592 R......

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