Present: L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Trial -- Evidence -- Use to which evidence to be put -- Propriety of certain questions on cross‑examination and related comments in address to jury ‑‑ Adequacy of charge to jury.
The Crown appealed from a Court of Appeal judgment which overturned respondent's conviction for second degree murder and ordered a new trial. One issue touched upon the use of evidence of the respondent's attack on a third party and of the theft of a bicycle. Another issue arose as to the propriety of certain questions put by the Crown in cross-examination and related comments in the address to the jury.
Held: The appeal should be allowed.
For the reasons of Labrosse J.A., dissenting at the Court of Appeal, this appeal should be allowed. In respect of both matters in issue in this appeal, the trial judge's charge was thorough and adequately explained the limited use to which the evidence in question could be put.
APPEAL from a judgment of the Ontario Court of Appeal (1994), 19 O.R. (3d) 259, 92 C.C.C. (3d) 68, 74 O.A.C. 46, allowing an appeal from conviction by Van Camp J. sitting with jury. Appeal allowed.
Gary T. Trotter, for the appellant.
Anil K. Kapoor, for the respondent.
The following is the judgment delivered by
1 The Court -- The respondent, Steven Joseph Tanner, was convicted at trial of the second degree murder of Dan Watters. This verdict was subsequently overturned by a majority of the Ontario Court of Appeal (Labrosse J.A. dissenting) and a new trial was ordered: (1994), 19 O.R. (3d) 259. It is from this decision that the Crown appeals to this Court as of right.
2 In our view, the Crown's appeal should be allowed for the dissenting reasons of Labrosse J.A. at the Court of Appeal but we would add the following. With respect to evidence of the attack on McCurdy and the theft of a bicycle, this evidence was admitted for the limited purpose of tending to show the respondent's state of mind at the time that he killed Watters. It was not admitted nor used as evidence of flight tending to show consciousness of guilt. The question put in cross-examination and followed up in the address to the jury by Crown counsel, while improper, must be assessed in light of the trial judge's charge to the jury. In respect of both matters in issue in this appeal, the trial judge's charge was thorough, and adequately explained the limited use to which the evidence could be put. There was no objection to the charge in either respect. In view of the foregoing, no error of law occurred and we agree with Labrosse J.A. that the respondent's appeal to the Court of Appeal ought to have been dismissed.
3 Accordingly, this appeal is allowed, the judgment of the Court of Appeal is set aside and the conviction of the respondent is restored.
Appeal allowed.
Solicitor for the appellant: The Ministry of the Attorney General, Toronto.
Solicitor for the respondent: Anil K. Kapoor, Toronto.
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