R. v. Valley, (1986) 13 O.A.C. 89 (CA)

• Judge: Martin, Goodman and Finlayson, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: November 12, 1985
• Jurisdiction: Ontario
• Citations: (1986), 13 O.A.C. 89 (CA)

R. v. Valley (1986), 13 O.A.C. 89 (CA)

MLB headnote and full text

R. v. Valley

Indexed As: R. v. Valley

Ontario Court of Appeal

Martin, Goodman and Finlayson, JJ.A.

February 10, 1986.

Summary:

The accused was charged with second degree murder and convicted by a jury. The accused was sentenced to life imprisonment without eligibility for parole until ten years. The accused appealed his conviction.

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

Courts - Topic 555

Judges - Powers - To intervene in examination of witnesses - The Ontario Court of Appeal set out the principal types of interventions by trial judges which have resulted in the quashing of convictions - The court held that the ultimate question to be answered was not whether the accused was in fact prejudiced by the interventions, but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial - See paragraph 51.

Courts - Topic 555

Judges - Powers - To intervene in examination of witnesses - A trial judge intervened several times during defence cross-examination of Crown witnesses - Despite the interventions, defence counsel was, after argument, permitted to fully cross-examine the witnesses - See paragraphs 57 to 58 - Several times the judge directed defence counsel during cross-examination to move on to another point - The judge made an erroneous ruling precluding cross-examination on a particular topic - The Ontario Court of Appeal held that despite the error, generally the trial judge acted properly and did not improperly curtail cross-examination - See paragraph 59 - The court held that although some of the judge's comments and admonitions to defence counsel may have conveyed to the jury that she was acting improperly, they did not reflect upon her integrity or that of the defence - The comments did not create the appearance of an unfair trial - See paragraphs 60 to 61.

Criminal Law - Topic 1285

Murder - Provocation - Jury charge - A 26 year old homosexual killed another homosexual whom he alleged had sexually attacked him - The accused objected to the jury charge on the issue of provocation - The Ontario Court of Appeal reviewed the charge and upheld it, because the accused suffered no prejudice by the failure to give the instruction allegedly denied - See paragraphs 19 to 20.

Criminal Law - Topic 4291

Procedure - Trial judge - Duties and functions of - General - The Ontario Court of Appeal generally discussed the judge's role in a criminal trial - See paragraph 49.

Criminal Law - Topic 4365

Procedure - Jury charge - Directions regarding expert evidence - A 26 year old homosexual killed another homosexual whom he alleged sexually attacked him - As a 12 year old, the accused had been sexually assaulted by a foster father - A psychiatrist testified concerning the accused's personality structure and the effect on him of forced sex because of his childhood experience - The Ontario Court of Appeal held that the trial judge adequately placed the expert's evidence before the jury on the issue of whether the accused was deprived of his power of self-control - See paragraphs 74 to 76.

Criminal Law - Topic 5208

Evidence - Witnesses - Relevancy - Facts relevant to theory of the defence - A 26 year old homosexual killed another homosexual whom he alleged had sexually attacked him - Found at the scene of the crime (the deceased's room) were pornographic magazines depicting sadomasochistic homosexual activity, and handcuffs - The trial judge permitted only photographs of these to be filed as an exhibit - The Ontario Court of Appeal held that the magazines were linked to the deceased, were relevant on the issue of provocation and ought to have been admitted - The handcuffs should also have been admitted, but their omission was less serious - See paragraphs 66 to 71.

Criminal Law - Topic 5416

Evidence - Witnesses - Cross-examination of Crown witnesses - Range of - The Ontario Court of Appeal held that defence counsel was entitled to ask the police officer who arrived at the scene of the crime if he observed any indications that the accused was insincere, however, the witness could not be asked to express an opinion as to the accused's sincerity - See paragraph 24.

Evidence - Topic 4760

Witnesses - Examination - Prior inconsistent statements - Cross-examination on prior written statements - Production of statements under s. 10 of Canada Evidence Act - The Ontario Court of Appeal stated that under s. 10(1), defence counsel was entitled to cross-examine a witness as to his previous statements in writing or reduced to writing relative to the subject matter of the case without such writing being shown to him, subject to the requirement that if it is intended to contradict the witness by the writing, his attention must first be called to those parts of the writing that are to be used to contradict him - See paragraph 32.

Evidence - Topic 7002

Opinion evidence - Expert evidence - Rejection of expert opinion - A 26 year old homosexual killed another homosexual whom he alleged had sexually attacked him - The trial judge refused to allow a psychiatrist to testify on the deceased's disposition or sadomasochistic tendencies, on the grounds that the psychiatrist's opinion was based on conjecture (since he had never met the deceased), was of no probative value and would not legitimately or reasonably assist the jury on the defences of provocation and self-defence - The Ontario Court of Appeal held that the judge did not err in excluding the evidence - See paragraphs 62 to 65.

Evidence - Topic 7002

Opinion evidence - Expert evidence - Rejection of expert opinion - A 26 year old homosexual killed another homosexual whom he alleged sexually attacked him - Found at the scene of the crime (the accused's room) were nitrites - The Ontario Court of Appeal held that the trial judge did not err in excluding the evidence of a toxicologist as to the use of nitrites by homosexual men - See paragraphs 72 to 73.

Evidence - Topic 7012

Opinion evidence - Expert evidence - Basis for opinion - The Ontario Court of Appeal stated that an expert in forming an opinion may, of course, draw on works of a general nature which form part of the body of knowledge with which an expert in a particular field would be expected to be acquainted - See paragraph 72.

Cases Noticed:

D.P.P. v. Camplin (1978), 67 Cr. App. R. 14, refd to. [para. 20].

R. v. Bradbury (1973), 14 C.C.C.(2d) 139 (Ont. C.A.), refd to. [para. 49].

R. v. Kalia (1974), 60 Cr. App. R. 200, refd to. [para. 49].

R. v. Torbiak and Campbell (1974), 18 C.C.C.(2d) 229 (Ont. C.A.), refd to. [para. 50].

R. v. Brouillard, [1985] 1 S.C.R. 39; 57 N.R. 168, refd to. [para. 51].

R. v. Denis, [1967] 1 C.C.C. 196 (Que. C.A.), refd to. [para. 51].

R. v. Matthews (1983), 78 Cr. App. R. 23, refd to. [para. 51].

Jones v. National Coal Board, [1957] 2 Q.B. 55, refd to. [para. 51].

R. v. Perks, [1973] Crim. L.R. 388, refd to. [para. 51].

R. v. Cain (1936), 25 Cr. App. R. 204, refd to. [para. 51].

R. v. Hulusi (1973), 58 Cr. App. R. 378, refd to. [para. 51].

R. v. Hircock, [1970] 1 Q.B. 67 (C.A.), refd to. [para. 51].

R. v. Ptohopoulos (1967), 52 Cr. App. R. 47, refd to. [para. 51].

R. v. Turkiewicz (1979), 50 C.C.C.(2d) 406 (Ont. C.A.), refd to. [para. 51].

R. v. Racz, [1961] N.Z.L.R. 227 (C.A.), refd to. [para. 52].

R. v. Scopelliti (1981), 63 C.C.C.(2d) 481, refd to. [para. 65].

R. v. French (1978), 37 C.C.C.(2d) 201 (Ont. C.A.), aff'd (1979), 28 N.R. 100; 47 C.C.C.(2d) 411 (S.C.C.), refd to. [para. 65].

R. v. Hawke (1975), 22 C.C.C.(2d) 19, refd to. [para. 71].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 215 [para. 20].

Canada Evidence Act, R.S.C. 1970, c. E-10, sect. 10 [paras. 27, 29, 31-32].

Authors and Works Noticed:

Bryant, Alan W., The Adversary's Witness: Cross-Examination and Proof of Prior Inconsistent Statements (1984), 62 Can. Bar Rev. 43 [para. 32].

Pattenden, Rosemary, Expert Opinion Based on Hearsay, [1982] Crim. L.R. 85 [para. 72].

Counsel:

Clayton C. Ruby, for the appellant/accused;

John C. Pearson, for the respondent/Crown.

This appeal was heard before Martin, Goodman and Finlayson, JJ.A., of the Ontario Court of Appeal on November 12, 1985. The decision of the Court of Appeal was delivered by Martin, J.A., and released on February 10, 1986