This Week At The Ontario Court of Appeal: 10-12-03

Each week at Wise Law Blog, we review recent decisions from the Ontario Court of Appeal.

Bedford v. Canada (Attorney General). Not, sadly, this not the Court of Appeal's final decision on the landmark trial case that struck down Criminal Code provisions on prostitution.

Rather, it is the the Court of Appeal's preliminary ruling, allowing the Attorney General's request for a stay to prevent those provisions from being struck down until the appeal has been determined.

The Court followed the test set forth in RJR-Macdonald Inc. v. Canada (Attorney General, where the Supreme Court stated that the requirements for granting a stay pending appeal are that a serious issue is to be tried, that the party seeking the stay would suffer irreparable harm should the stay not be granted, and that the balance of convenience and public interest considerations favour a stay. The first requirement (seriousness) was rapidly resolved as not in contention, leaving the court to decide whether to grant the stay on the second and third requirements.

The Court granted the stay, accepting that street prostitutes are at increased risk of harm as a result of the laws being allowed to stay on the books, but pointing out that the use of the laws allows police methods to investigate more important investigations into sex-worker crimes - including particularly exploitative conduct, such as child prostitution or sex slavery. At the same time, however, the judge also notes that the laws put street prostitutes at increased risk. The arguments the judge uses are in many ways a sneak preview of what the Court of Appeal must consider when it hears the case, so the Read-the-whole-case rating for this stay grant is 5.

R. v. Luu. An appeal on a manslaughter charge where a man was convicted for unlawfully shooting and killing his friend while the two of them were playing with a handgun. The Court of Appeal accepted the appellant's argument that the conviction was unreasonable. At the original trial, the theory of manslaughter - which the jury accepted - was that since the firearms examiner had concluded that the gun had been fired 1.4 meters away from the deceased, the possibility that the deceased had accidentally shot himself was nonexistent.

However, the Court of Appeal noted that the firearms examiner's evidence was based on an examination of the deceased's shirt, which had not been carefully maintained as evidence prior to the examiner's inspection of it, and which could have allowed for error in her analysis. Furthermore, the doctor performing the autopsy originally concluded that the gunshot wound was a "contact wound" (IE, the muzzle of the gun was in contact with the body when the gun fired), but changed her opinion to coincide with the firearms examiner's opinion despite conflicting evidence. On these grounds, the Court of Appeal decided the jury's verdict was unreasonable since the evidence did not satisfy the burden of proof beyond a reasonable doubt. Read-the-whole-case rating: 3 for a very readable analysis of the available evidence.

R. v. Singh. A murder conviction was appealed by the defendant. Mr. Singh was accused of murdering his ex-girlfriend in a fit of jealousy. The defense appealed on three grounds: that a phone conversation admitted as evidence was inadmissible, that the Crown's cross-examination of two witnesses providing the bulk of Mr. Singh's defense was improper, and that the trial judge erred when he failed to give a limiting instruction to the jury regarding the lead police investigator's testimony.

The phone conversation - at a time just before the death, between the deceased and her friend, in which the deceased informed the friend that she was with the accused - was deemed admissible by the Court of Appeal. The defense had argued that the evidence was inadmissible because there was no proof that the deceased was telling her friend the truth. Interestingly, the Court of Appeal makes its decision here by comparing the situation to R. v. Khelawon, a leading case on principled exemptions to the hearsay rule: they suggest that the evidence is admissible because there was no plausible motive for the deceased to lie.

The witnesses were a simpler matter. Although the Crown's cross-examination of each of the two witnesses - the defendant's brother, who claimed he was with the defendant at the time of the murder, and a girl who claimed that she had overheard the deceased's boss threatening to kill the deceased - was vigorous, the Court of Appeal found that the Crown's occasional improper behaviour (sarcasm directed at the witnesses and editorial comment during cross-examination) was at least somewhat understandable due to the witnesses' combative behaviour on the stand. The Court also noted that the witnesses' testimony was far from exculpatory and that both witnesses had a track record of inconsistency in their statements.

In regard to the trial judge's failure to give a limiting instruction, the Court first noted that even the defense admitted that this ground alone was not enough to accept an appeal. However, the Court addressed it nonetheless, pointing out that the impugned evidence that defense argued should have merited a limiting instruction was actually elicited by the defense on cross-examination. Further, the Court noted that the defense, in their closing argument, made wide use of the hearsay evidence that they were now challenging due to the lack of limitation, and dismissed the argument. Read-the-whole-case rating: 2.5, but the portion devoted to analysis of the phone conversation hearsay evidence merits a 4.

- Christopher Bird, Toronto

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