R. v. Tarnovsky (B.), (1995) 80 O.A.C. 126 (CA)

• Judge: Doherty, Weiler and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 11, 1995
• Jurisdiction: Ontario
• Citations: (1995), 80 O.A.C. 126 (CA)

R. v. Tarnovsky (B.) (1995), 80 O.A.C. 126 (CA)

MLB headnote and full text

Her Majesty The Queen (respondent) v. Boris Tarnovsky (appellant)

(C16373)

Indexed As: R. v. Tarnovsky (B.)

Ontario Court of Appeal

Doherty, Weiler and Laskin, JJ.A.

April 11, 1995.

Summary:

An accused was convicted of one count of sexual assault and one count of touching for a sexual purpose. The accused appealed.

The Ontario Court of Appeal allowed the appeal, quashed the convictions and entered acquittals.

Criminal Law - Topic 50

General principles - Protection against self-incrimination - [See first Criminal Law - Topic 4372 ].

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - [See first Criminal Law - Topic 4372 ].

Criminal Law - Topic 4266

Procedure - Indictment - Proof of par­ticulars in indictment - Time - [See first Criminal Law - Topic 4372 ].

Criminal Law - Topic 4372

Procedure - Charge or directions to jury - Directions respecting alibi evidence or explanation by accused - An accused, charged with sexual offences, had an alibi for the time frame alleged in the indict­ment, but admitted to having contact with the complainant - The trial judge instructed the jury that the time frame was irrelevant - The Ontario Court of Appeal held that the accused was denied the op­portunity to make full answer and defence and his right not to be conscripted against himself was indirectly violated - The judge should have instructed the jury that it could only convict if the Crown estab­lished that the offences occurred within the time frame alleged in the indictment - The court acquitted the accused, where no reasonable, properly instructed jury could have convicted him - See paragraphs 1 to 21.

Criminal Law - Topic 4372

Procedure - Charge or directions to jury - Directions respecting alibi evidence or explanation by accused - An accused, charged with sexual offences, had an alibi for the time frame alleged in the indict­ment, but admitted to having contact with the complainant - The trial judge instructed the jury that the time frame was irrelevant - In summarizing the defence's position, the judge only referred to the discrepancy as a factor relevant to the reliability of the complainant's evidence - The Ontario Court of Appeal concluded that the judge should have qualified its instruction respecting the relevancy of the time frame, by instructing the jury that it was equally a matter of law that the com­plainant's apparent error was relevant to and should be considered in assessing the reliability of the rest of her evidence - See paragraphs 22 to 25.

Criminal Law - Topic 4731

Procedure - Information or indictment - Charge or count - Indictable offences - Form and content - Date and description of offence - [See both Criminal Law - Topic 4372 ].

Cases Noticed:

R. v. G.B. et al. (No. 2), [1990] 2 S.C.R. 30; 111 N.R. 31; 86 Sask.R. 111; 56 C.C.C.(3d) 200; 77 C.R.(3d) 347, consd. [para. 11].

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161; 89 C.C.C.(3d) 289, consd. [para. 11].

R. v. McCrae and Ramsay (1981), 25 Man.R.(2d) 32 (Co. Ct.), refd to. [para. 12].

R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63; 63 C.C.C.(3d) 385; 4 C.R.(4th) 1, refd to. [para. 23].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 601(4.1) [para. 10].

Counsel:

Marc Rosenberg, for the appellant;

W. Graeme Cameron, for the respondent.

This appeal was heard on March 28, 1995, before Doherty, Weiler and Laskin, JJ.A., of the Ontario Court of Appeal.

Doherty, J.A., delivered the following judgment for the Court of Appeal which was released on April 11, 1995.