R. v. Stewart, (1991) 43 O.A.C. 109 (CA)

• Judge: Brooke, Galligan and Doherty, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 22, 1991
• Jurisdiction: Ontario
• Citations: (1991), 43 O.A.C. 109 (CA)

R. v. Stewart (1991), 43 O.A.C. 109 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. James Raymond Stewart (appellant)

(No. 659/89)

Indexed As: R. v. Stewart

Ontario Court of Appeal

Brooke, Galligan and Doherty, JJ.A.

January 22, 1991.

Summary:

The accused was convicted of one count of living off the avails of prostitution, one count of exercising control over a prostitute for gain and one count of assault. He appealed his conviction.

The Ontario Court of Appeal, Galligan, J.A., dissenting, allowed the appeal, quashed the conviction and ordered a new trial.

Criminal Law - Topic 80

General principles - Res judicata - Multiple convictions for same subject matter precluded - Circumstances where defence may be raised - The accused was convicted of one count of living off the avails of prostitution and one count of exercising control over a prostitute for gain - The Ontario Court of Appeal opined that convictions on both counts offended the principles set out in R. v. Kienapple, 1 N.R. 322 (S.C.C.) - See paragraphs 49, 50.

Criminal Law - Topic 4574

Procedure - Conduct of trial - Interventions by trial judge - The Ontario Court of Appeal referred to several comments and questions by a trial judge during the course of a criminal trial which suggested an abandonment of judicial neutrality and therefore affected the fairness of the trial - See paragraphs 22 to 42.

Criminal Law - Topic 4955

Procedure - New trials - Grounds - Cumulative effect of errors - The accused was convicted of three criminal offences - The Ontario Court of Appeal set aside the convictions and ordered a new trial because at trial there was (1) improper cross-examination, (2) improper interventions by the trial judge and (3) unsubstantiated findings of fact (Criminal Code, s. 686(1)(a)(iii)).

Criminal Law - Topic 4961

Procedure - New trials - Grounds - Abusive cross-examination by Crown - [See Criminal Law - Topic 4955].

Criminal Law - Topic 4989

Procedure - Powers of court of appeal - Power to allow an appeal where miscarriage of justice - [See Criminal Law - Topic 4955].

Criminal Law - Topic 5434

Evidence and witnesses - Cross-examination of accused - Improper questions - What constitutes - The Ontario Court of Appeal stated that "an accused may not be cross-examined with respect to misconduct or discreditable associations unrelated to the charges before the court, except in exceptional circumstances (e.g. where the accused has put his character in issue)" - See paragraph 9 - The court thereafter cited three occasions in this case where Crown counsel went beyond permissible limits - See paragraphs 10 to 21.

Cases Noticed:

R. v. Bickford (1989), 34 O.A.C. 34; 51 C.C.C.(3d) 181 (C.A.), refd to. [para. 7].

R. v. Davison, DeRosie and MacArthur (1974), 6 O.R.(2d) 103; 20 C.C.C.(2d) 424 (Ont. C.A.), refd to. [para. 9].

R. v. R.S.W. (1990), 55 C.C.C.(3d) 149 (Man. C.A.), refd to. [para. 16].

R. v. C.(W.) (1990), 54 C.C.C.(3d) 37 (Ont. C.A.), refd to. [para. 21].

R. v. Valley (1986), 13 O.A.C. 89; 26 C.C.C.(3d) 207, leave to appeal refused, [1986] 1 S.C.R. xiii; 67 N.R. 159; 15 O.A.C. 240; 26 C.C.C.(3d) 207, refd to. [paras. 22, 64, 90].

R. v. Corbett, [1988] 1 S.C.R. 70; 85 N.R. 1; 41 C.C.C.(3d) 385, refd to. [para. 33].

R. v. Fanjoy, [1985] 2 S.C.R. 233; 62 N.R. 253; 21 C.C.C.(3d) 312, refd to. [para. 47].

R. v. Brouillard, [1985] 1 S.C.R. 39; 57 N.R. 168; 17 C.C.C.(3d) 193, refd to. [para. 47].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322; 15 C.C.C.(2d) 524, refd to. [para. 49].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a)(iii) [paras. 8, 47, 48]; sect. 686(1)(b)(iii) [para. 48].

Authors and Works Noticed:

Bett, J., Character of the Accused (1990), 4 Crown Newsletter 45, generally [para. 9].

Counsel:

Michelle K. Fuerst, for the appellant;

David Finley, for the respondent.

This appeal was heard on December 6 and 7, 1990, before Brooke, Galligan and Doherty, JJ.A., of the Ontario Court of Appeal. The decision of the court was released on January 22, 1991, including the following opinions:

Doherty, J.A. (Brooke, J.A., concurring) - see paragraphs 1 to 49;

Galligan, J.A. (dissenting) - see paragraphs 50 to 97.