R. v. Sauvé (J.) et al, (2004) 182 O.A.C. 58 (CA)

• Judge: Catzman, Rosenberg and Borins, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 30, 2004
• Jurisdiction: Ontario
• Citations: (2004), 182 O.A.C. 58 (CA);2004 CanLII 9054 (NS CA);2004 CanLII 9054 (ON CA);182 CCC (3d) 321;[2004] OJ No 248 (QL);182 OAC 58

R. v. Sauvé (J.) (2004), 182 O.A.C. 58 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. FE.019

Her Majesty the Queen (respondent) v. James Sauvé and Richard Trudel (appellant)

(C25967)

Indexed As: R. v. Sauvé (J.) et al.

Ontario Court of Appeal

Catzman, Rosenberg and Borins, JJ.A.

January 30, 2004.

Summary:

Two accused were convicted by judge and jury on two counts of first degree murder. The accused appealed.

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

Criminal Law - Topic 1270

Offences against person and reputation - Murder - First degree murder - Meaning of "planned" and "deliberate" - Accused appealed their murder convictions, asserting that the trial judge failed to instruct the jury that, to be convicted, each accused had to have intended a planned and deliberate homicide - The accused asserted that the trial judge effectively suggested that each accused could be found guilty of first degree murder through participation in a murder in which the other accused had the necessary mental element of planning and deliberation - The Ontario Court of Appeal stated that while mere participation in a planned and deliberate murder would not, standing alone, render an accused guilty of first degree murder, it was incorrect to suggest that each accused had to have planned and deliberated - The relevant test was not whether the accused was the person who originally planned and deliberated but whether he knew about, adopted and executed a plan to commit such a murder - In any event, reading the jury charge as a whole, including a clarification, there was no danger that the jury would find both accused guilty of a planned and deliberate first degree murder without finding that each had the requisite intent - See paragraphs 156 to 163.

Criminal Law - Topic 2682

Attempts, conspiracies, accessories and parties - Conspiracies - Conspirator's exception to hearsay rule - Accused appealed their murder convictions, asserting that the trial judge erred in instructing the jury on the co-conspirator's exception to the hearsay rule - Since the accused were not charged with conspiracy, the trial judge had used the term "common enterprise" in explaining the rule - The accuseds asserted that the common design had to either be the offence charged or a conspiracy to commit it - Thus, if there was a common design, it was completed with the murder and any of the declarations after the killings were not capable of meeting the "in furtherance requirement" - The Ontario Court of Appeal rejected the assertion - The scope of the conspiracy, or common enterprise, did not depend on the definition of the particular crime charged but the nature of the agreement - A court had to be careful not to artificially graft on to a conspiracy to murder a conspiracy to avoid detection, or as in this case, a common design to use the murder as a means of intimidating others - However, if the evidence established such a conspiracy or common design, it could serve as a foundation for the hearsay exception - See paragraphs 111 to 121.

Criminal Law - Topic 2788

Attempts, conspiracies, accessories and parties - Evidence - Admissibility of acts done in furtherance of a common design - [See Criminal Law - Topic 2682 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - Accused appealed their murder convictions, asserting that the direction to the jury concerning the definition of reasonable doubt was inadequate - The Ontario Court of Appeal dismissed this ground of appeal - The court reviewed the reasonable doubt charge and concluded that the only significant defects were in failing to direct the jury that a reasonable doubt was a doubt based upon reason and common sense and was logically connected to the evidence or absence of evidence - As a result, the jury did not have a complete definition of reasonable doubt before they were told that proof beyond a reasonable doubt was when they "feel sure or when you are sure of the accused's guilt" - However, when the various instructions were considered, including the circumstantial evidence instruction, the R. v. D.W. instruction, and the conspiracy instruction, there was substantial compliance with R. v. Lifchus - See paragraphs 101 to 110.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - Accused appealed their murder convictions, asserting that the direction to the jury concerning reasonable doubt was inadequate - In rejecting this ground of appeal, the Ontario Court of Appeal noted that the charge's reference to a reasonable doubt not being one conjured up to "escape responsibility" resembled the "timid juror" instruction previously disapproved of by the court - However, it did not carry the negative connotation that made the timid juror instruction so troubling by implying that jurors who acquit were timid and might be avoiding their responsibilities, while courageous jurors convict - See paragraph 108.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The Ontario Court of Appeal stated that the purpose of a Vetrovec warning was to alert the jury that there was a special need for caution in approaching the evidence of certain witnesses whose evidence plays an important role in the proof of guilt - The caution was particularly important where there were defects in the evidence of a witness that might not be apparent to a lay trier of fact - Perhaps the most important of these was the jailhouse informer - The court discussed the dangers of relying on jailhouse informers - There was need for special care and for informing the jury of the reasons for the special care rested on the concern that the lay jurors lacked the necessary experience to adequately assess the credibility of these type of witnesses - That was not to say that such witnesses were incapable of telling the truth or that the evidence could never safely constitute an acceptable basis for a conviction - Rather, that kind of evidence had to be approached with caution - See paragraphs 76 to 81.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - Accused appealed their murder convictions, asserting that the trial judge inadequately warned the jury about the frailties in the evidence of three Crown witnesses and that having regard to the position occupied by the witnesses in the Crown's case, their unsavoury backgrounds and other factors, a Vetrovec warning was mandatory - The Ontario Court of Appeal agreed - To the extent that the trial judge's comments suggested that this was a matter of discretion, he was in error - The witnesses were central to the Crown's proof of guilt - Each witness had such significant frailties that a warning was mandatory - All three lied to the police, selectively disclosed their stories, sought various benefits for their testimony, were part of the Ottawa criminal underground, had lengthy criminal records and were heavy users of illicit drugs - It was open to the jury to find that they had lied under oath either at the preliminary inquiry or the trial - The evidence of one witness had the added defect that he was in jail with one of the accused when he claimed to have had incriminating conversations with him - See paragraph 70.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - The Ontario Court of Appeal stated that: "The cases establish four characteristics of a proper Vetrovec warning: (1) the evidence of certain witnesses is identified as requiring special scrutiny; (2) the characteristics of the witness that bring his or her evidence into serious question are identified; (3) the jury is cautioned that although it is entitled to act on the unconfirmed evidence of such a witness, it is dangerous to do so; and (4) the jury is cautioned to look for other independent evidence which tends to confirm material parts of the evidence of the witness with respect to whom the warning has been given." - See paragraph 82.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - Accused appealed their murder convictions, asserting that the trial judge gave an inadequate Vetrovec warning respecting three Crown witnesses - The Ontario Court of Appeal agreed - The trial judge advised the jury that the witnesses required special scrutiny, but did not adequately explain the reasons for the special scrutiny - Without understanding the reason for the special scrutiny, the jury would not have been able to accurately assess the risk of acting on the evidence - Further the trial judge did not give a sufficiently strong warning on the dangers of acting on the unconfirmed evidence of three suspect witnesses - It was not sufficient to simply instruct the jury that it might be prudent, where they considered it advisable, to look for supporting evidence - The jury had the option to act on the evidence of the suspect witnesses, but treating their evidence with utmost care was not optional - Also, although there was not a lot of independent confirmatory evidence, it would have been preferable for the judge to have referred to some examples along with an appropriate caution about the attached frailties - See paragraphs 70 to 100.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - Accused appealed their murder convictions, asserting that the trial judge, in giving a Vetrovec warning, erroneously suggested to the jurors that they could make a determination of the veracity of the witnesses' stories by their demeanour - The Ontario Court of Appeal stated that while the demeanour direction should generally be avoided, it was not an error to give the direction in the unusual circumstances of this case - The jury saw the witnesses for extended periods during which they were subjected to rigorous and exhaustive cross-examinations - Moreover, the demeanour direction was accompanied by a much more helpful direction that the jury measure the story against common sense - See paragraphs 92 and 93.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - Accused appealed their murder convictions, asserting that the trial judge undermined his Vetrovec warning, by telling the jury that it was "not unusual for witnesses of unsavoury character to be called as witnesses when the facts of the case require an examination of an illegal business" - The Ontario Court of Appeal held that the trial judge was entitled to provide the jury with the benefit of his experience that the prosecution was often required to call witnesses who were involved in illegal activities - That said, a more balanced instruction could have provided the jury with the information that the witnesses were unusual in the sense that there were many frailties attached to their evidence - See paragraph 94.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - Accused appealed their murder convictions, asserting that the trial judge erred in instructing the jury that no one could be convicted on the basis that they were bad persons "and therefore, for that reason alone, are likely to have committed the offence" - The accused asserted that this may have left the jury with the impression that in some circumstances they could reason their way to guilt from the fact that the accused person was of bad character - The accused also asserted that the trial judge did not adequately explain the permissible use of evidence respecting the accused Sauvé's prior manslaughter conviction - The Ontario Court of Appeal rejected the assertions - The trial judge sufficiently conveyed the message that the jury could not use the evidence of the manslaughter conviction to reason that since Sauvé was a bad man, he was more likely to have committed the offence - The jury would have understood that there was a permissible and impermissible use of the evidence and they were not to reason from bad character to guilt - The inadequacy of the trial judge's instruction on permissible use would not have constituted reversible error if the manslaughter conviction evidence had otherwise been properly admitted - See paragraphs 191 to 197.

Criminal Law - Topic 4482

Procedure - Trial - Joint or separate trials of two or more persons - Trudel and three others were charged with murder - The trial of two of the accused was severed - Trudel applied for severance of his trial on four occasions - The primary basis for the applications was that many witnesses would give evidence only admissible against one or more of the other accused - The applications were denied - On appeal from Trudel's conviction, the Ontario Court of Appeal stated that the question of whether or not to grant separate trials was a matter for the trial judge's discretion and the Court of Appeal would interfere only where the trial judge had erred in principle or the joinder operated a manifest injustice towards one of the accused - The trial judge here did not commit any reversible error in denying severance - Most of the evidence led by the Crown was admissible against both Trudel and the other accused - See paragraph 198.

Criminal Law - Topic 4947

Appeals - Indictable offences - New trials - Grounds - Joint trials - Error respecting co-accused - At Trudel's and Sauvé's murder trial, the trial judge erred by (1) not giving the jury an adequate Vetrovec warning; (2) admitting evidence of other "true" confessions by inmates to Emmerson, a Crown witness who had also been an inmate; and (3) in admitting evidence of Sauvé's prior manslaughter conviction - The Ontario Court of Appeal refused to apply s. 686(1)(b)(iii) of the Criminal Code and ordered a new trial - The court considered that the second and third error bore on Emmerson's credibility, a suspect Crown witness for whom a proper Vetrovec warning should have been given - The second error might have had the effect of diminishing the impact of what warning was given - The third error might have improperly bolstered Emmerson's credibility, in addition to being extremely prejudicial to Sauvé receiving a fair trial - Secondly, this was not a case where the evidence, other than that from suspect witnesses, was so compelling that the verdict would inevitably have been the same - Nor was there other compelling confirmatory evidence - The most substantial submission in favour of applying s. 686(1)(b)(iii) was the unusual nature of the trial coupled with what the trial judge said about the witnesses - The jury would have had a complete picture of the three principal Crown witnesses with all of their frailties exposed - However, an adequate Vetrovec warning was not given - Having regard to the witnesses' central role and the seriousness of the other errors, it could not be said that the verdict would necessarily have been the same - While two of the errors principally applied to Sauvé, given Trudel's close association with him, they would also have impacted on Trudel to the point that it would not be safe to apply the proviso in his case - See paragraphs 199 to 211.

Criminal Law - Topic 4950

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - General - [See Criminal Law - Topic 4947 ].

Criminal Law - Topic 4953

Appeals - Indictable offences - New trials - Grounds - Admission of prejudicial evidence - [See Criminal Law - Topic 4947 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - Sauvé and Trudel appealed their murder convictions and applied to admit fresh evidence respecting Emmerson, a Crown witness - The evidence related to a brief hearsay recantation during a telephone call in 1998 to Trudel's lawyer (Barnes) - Emmerson had since retracted the recantation and claimed amnesia - The Ontario Court of Appeal refused to admit the evidence - The court accepted Barnes' version of the telephone calls and that Emmerson was not telling the truth when he denied calling Barnes and in his claim of amnesia - The evidence was hearsay and would not have been admissible for its truths - The test of due diligence and relevancy was met - However, there was already evidence before the jury of another recantation by Emmerson - Given everything that the jury knew about Emmerson's character, it was not reasonable to think that the evidence, admissible only for the limited purpose of further impeaching Emmerson's credibility, if believed, could reasonably have been expected to have affected the result - See paragraphs 30 to 44.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - Sauvé and Trudel appealed their murder convictions and applied to admit fresh evidence respecting the relationship of a Crown witness (Emmerson) with Last who had surrendered a videotape of the crime scene to the police - The accused asserted that the evidence established that there were sources for Emmerson's knowledge of the killings other than his alleged conversation with Sauvé - The Ontario Court of Appeal refused to admit the evidence - While the evidence was relevant, it was fair to consider the lack of due diligence in pursuing the matter - In the lengthy cross-examination of Emmerson he was asked only one question about Last - In any event, the evidence was not such as to reasonably have affected the verdict - The fact that Emmerson had other sources was already before the jury - The proposed fresh evidence, while modestly strengthening the inference that a source for the information might have been the videotape, did not show that Emmerson actually saw the videotape - See paragraphs 46 and 47.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - Accused appealed their murder convictions and applied to admit fresh evidence respecting a Crown witness (Trudel) that now recanted his trial testimony - Trudel recanted after his attempts at reinstatement in the protection program were rebuffed - The Ontario Court of Appeal admitted the evidence and allowed the appeal - The tests for relevancy and due diligence were met - Trudel's trial testimony was highly suspect - It had been given in response to express promises from the authorities - Trudel was unstable and violent - He had falsely implicated the accused in another murder - There were credible explanations for why he might have lied - His trial testimony provided almost no details and what details were provided were inconsistent with the principal Crown witness's testimony - The recantation would, at least, have substantial value for impeachment purposes - It should not be rejected at the credibility stage - If believed, the new evidence could reasonably be expected to affect the result - See paragraphs 49 to 67.

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See Criminal Law - Topic 4947 ].

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - Accused appealed their murder convictions, asserting that the trial judge erred in admitting Charbonneau's double hearsay evidence - On an issue respecting the time of death, Charbonneau testified that, prior to the news becoming public, Charron told him that McFadden had told Charron that he had seen the body of one of the victims two days earlier - The Ontario Court of Appeal held that the evidence should not have been admitted - However, no substantial wrong or miscarriage of justice was occasioned - Although Charron was not called to testify as to his conversation with Charbonneau, McFadden testified as to his conversation with Charron - The evidence was tendered primarily to confirm McFadden's testimony as to when he had seen the body and the principal hearsay danger, that the declarant was unavailable to be cross-examined, was greatly attenuated - Further, there was a substantial body of circumstantial evidence that confirmed McFadden's evidence - See paragraphs 123 to 132.

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - Gaudreault was a principal Crown witness in the accused's murder trial - At the Ontario Provincial Police's request, Richardson, a police officer, had acted as Gaudreault's "handler" while Gaudreault was in Victoria - With the permission of the Ontario Provincial Police, Richardson also used Gaudreault as an informer for criminal activities on Vancouver Island - Richardson testified that Gaudreault was the best informant he had worked with, that he was "uncanny" in his knowledge and powers of recollection and many times he thought that Gaudreault was lying but it turned out he was telling the truth - The accused appealed their murder convictions, asserting that the trial judge erred in admitting the evidence - The Ontario Court of Appeal stated that once Gaudreault's credibility was attacked, it was open to the Crown to attempt to rehabilitate him by calling evidence of his reputation for veracity - However, the kind of oath-helping evidence or personal opinion given by Richardson was not admissible - Nevertheless, its admission was harmless - The evidence came out almost in passing without objection and played such a minimal role that no prejudice was occasioned - See paragraphs 177 to 180.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where jury charge incomplete or in error - [See Criminal Law - Topic 4947 ].

Criminal Law - Topic 5202

Evidence and witnesses - Admissibility - Whether relevant and material - Trudel and Sauvé appealed their murder convictions, asserting that the trial judge erred in admitting Beland's testimony that she had overheard Trudel tell Stewart (who was tried separately for the murder) "no matter what, we stick together" - Beland heard no other part of the conversation and was unaware of what was referred to in the fragmented statement she overheard - The Ontario Court of Appeal held that the trial judge had not erred in admitting the evidence - It was possible to ascertain some meaning from the utterance - Given that the relationship among the accused was in issue, evidence tending to show that a bond existed before the murders took place was relevant and probative, although the evidentiary force of the utterance was not strong - See paragraphs 143 to 147.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - At the accused's murder trial, Emmerson testified that the accused Sauvé had confessed to him while they were both inmates - While being cross-examined on the improbability that Sauvé would have confessed to a stranger in jail, Emmerson testified that two other witnesses had confessed to him - In re-examination, over the defence's objection, Crown counsel elicited the details of those confessions and the fact that two persons had pleaded guilty - The accused appealed their subsequent murder convictions, asserting that the evidence of the other confessions should not have been admitted - The Ontario Court of Appeal agreed - Whatever minimal probative value the evidence had was outweighed by its prejudicial effect - Whether or not two other persons confessed to Emmerson did not establish whether Sauvé would have confessed to him - Most importantly, the effect of the evidence was to improperly minimize the danger of evidence from jailhouse informers - See paragraphs 169 to 171.

Criminal Law - Topic 5209

Evidence and witnesses - Admissibility and relevancy - Prejudicial evidence - At the accused's murder trial, Emmerson testified respecting what the accused Sauvé had said respecting a prior murder and the murders in question - The statements were allegedly made while Emmerson and Sauvé were both inmates - The Crown also led extrinsic evidence about Sauvé's prior manslaughter conviction - The Ontario Court of Appeal held that the probative value of the evidence was dependent on a Crown theory that Emmerson could only have obtained the details about the conviction from Sauvé - There were substantial difficulties with that theory and the evidence had limited probative value - The probative value was far outweighed by the prejudicial effect - The evidence should not have been admitted - See paragraphs 181 to 190.

Criminal Law - Topic 5360

Evidence and witnesses - Photographs, movies, videotapes, etc. - General principles - Admissibility - A jury convicted two accused of murder - The accused appealed, asserting that the trial judge erred in allowing the Crown to play a videotape that showed the police driving a witness around as he successfully attempted to find the crime scene and remember where he had let off the accused - The Ontario Court of Appeal affirmed the admission of the evidence - A substantial attack had been made upon the witness's reliability based in part on his admissions that he had been using cocaine and had asked his spouse whether he had hallucinated about the events - The videotape was admissible to bolster his story - It showed that he had an independent memory of the events - The assertion that the witness could have learned the information from press reports went to weight - The evidence had some probative value and little prejudicial effect - See paragraph 173.

Criminal Law - Topic 5364

Evidence and witnesses - Photographs, movies, videotapes, etc. - Weight - [See Criminal Law - Topic 5360 ].

Criminal Law - Topic 5449

Evidence and witnesses - Testimony respecting the accused - Character of accused - Discreditable conduct - General - [See Criminal Law - Topic 4379 ].

Criminal Law - Topic 5506

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Admissibility - [See first Criminal Law - Topic 5209 ].

Criminal Law - Topic 5510

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

Evidence - Topic 1031

Relevant facts - Relevance and materiality - Admissibility - Prior consistent statements - Accused appealed their murder convictions, asserting that the trial judge erred in permitting the Crown to call evidence of Reverend Main who testified that another Crown witness (Emmerson) came to see him and he advised him to tell the truth and cooperate with the police - The Ontario Court of Appeal agreed that the evidence was not admissible to rebut an allegation of recent fabrication - The evidence did not show that Emmerson made the statements to Main before he had a motive to falsely testify - However, Main had not been permitted to testify as to what Emmerson had told him and therefore the recent fabrication rule was not engaged - The only purpose of the evidence was to confirm Emmerson's testimony that he had a discussion with Main and this was part of his motivation for coming forward - Since Emmerson's true motives were in dispute, it was open to the Crown to lead the evidence to confirm that there was such a conversation - The rule against oath helping was not offended - Main did not purport to vouch for the truth of Emmerson's testimony or his credit generally - See paragraphs 164 to 168.

Evidence - Topic 1130

Relevant facts - Relevance and materiality - Relevance of evidence offered - Prior consistent statements - [See Evidence - Topic 1031 ].

Evidence - Topic 1291

Relevant facts - Relevance and materiality - Doing of human act - Criminal cases - Accused's prior convictions - [See second Criminal Law - Topic 5209 ].

Evidence - Topic 4023

Witnesses - General - Credibility - Oath-helping or oath-attacking - [See third Criminal Law - Topic 5037 and Evidence - Topic 1031 ].

Cases Noticed:

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 41].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 42].

R. v. Babinski (R.R.) (1999), 122 O.A.C. 1; 135 C.C.C.(3d) 1 (C.A.), refd to. [para. 42].

R. v. Kelly (P.) (1999), 122 O.A.C. 201; 135 C.C.C.(3d) 449 (C.A.), refd to. [para. 60].

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606; 67 C.C.C.(2d) 1, refd to. [para. 70].

R. v. Bevan and Griffith, (1991), 44 O.A.C. 53; 63 C.C.C.(3d) 333 (C.A.), revd. [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165; 82 C.C.C.(3d) 310, refd to. [paras. 70, 84].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 141 C.C.C.(3d) 321, refd to. [para. 70].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140; 141 C.C.C.(3d) 449 (C.A.), refd to. [para. 83].

R. v. Harriott (A.) (2002), 168 O.A.C. 342; 161 C.C.C.(3d) 481 (C.A.), affd. (2003), 301 N.R. 1; 170 O.A.C. 84; 171 C.C.C.(3d) 351 (S.C.C.), refd to. [para. 86].

R. v. Jones (W.B.) (2001), 146 O.A.C. 118 (C.A.), refd to. [para. 86].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81; 41 C.C.C.(3d) 385, refd to. [para. 88].

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, refd to. [para. 102].

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. 107].

R. v. Karthiresu (K.) (2000), 129 O.A.C. 291 (C.A.), refd to. [para. 108].

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. 110].

R. v. Baron and Wertman (1976), 31 C.C.C.(2d) 525 (Ont. C.A.), folld. [para. 116].

R. v. Vrany (1979), 46 C.C.C.(2d) 14 (Ont. C.A.), refd to. [para. 117].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257, refd to. [para. 127].

Subramanian v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.), refd to. [para. 127].

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113; 32 C.C.C.(3d) 481, refd to. [para. 136].

R. v. Wood et al. (1989), 33 O.A.C. 260; 51 C.C.C.(3d) 201 (C.A.), refd to. [para. 136].

R. v. Ferris (J.M.) (1994), 149 A.R. 1; 63 W.A.C. 1; 27 C.R.(4th) 141 (C.A.), affd., [1994] 3 S.C.R. 756; 174 N.R. 158; 162 A.R. 108; 83 W.A.C. 108, refd to. [para. 146].

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; 113 C.C.C.(3d) 1, refd to. [para. 148].

R. v. Brown (D.M.) (1995), 145 N.S.R.(2d) 387; 418 A.P.R. 387; 102 C.C.C.(3d) 422 (C.A.), refd to. [para. 159].

R. v. McNeill (S.) (2000), 131 O.A.C. 346; 144 C.C.C.(3d) 551 (C.A.), refd to. [para. 170].

R. v. Clarke (H.E.) (1998), 112 O.A.C. 233; 129 C.C.C.(3d) 1 (C.A.), refd to. [para. 179].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293; 36 C.C.C.(3d) 481, refd to. [para. 179].

R. v. L.E.D., [1989] 2 S.C.R. 111; 97 N.R. 321; 50 C.C.C.(3d) 142, refd to. [para. 185].

R. v. Sternig (1975), 31 C.R.N.S. 272 (Ont. C.A.), refd to. [para. 198].

R. v. Baltrusaitis (V.C.) (2002), 155 O.A.C. 249; 162 C.C.C.(3d) 539 (C.A.), refd to. [para. 200].

R. v. Armstrong (R.) (2003), 176 O.A.C. 319 (C.A.), refd to. [para. 200].

R. v. Arradi (Z.) (2003), 302 N.R. 367; 173 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 207].

Authors and Works Noticed:

Cory, Peter, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001), generally [para. 76].

Kaufman Report - see Ontario, Attorney General, Report of the Commission on Proceedings Involving Guy Paul Morin.

Ontario, Attorney General, Report of the Commission on Proceedings Involving Guy Paul Morin (Kaufman Report) (1998), generally [para. 76].

Counsel:

Frank Addario and P. Andras Schreck, for the appellant, James Sauvé;

Philip Campbell and Catherine Glaister, for the appellant, Richard Trudel;

Scott Hutchison, John McInnes, Alexander Alvaro, Gillian Roberts and Susan Magotiaux, for the respondent.

This appeal was heard on February 3-7, 2003, by Catzman, Rosenberg and Borins, JJ.A., of the Ontario Court of Appeal. The court released the following judgment on January 30, 2004.