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CRIMINAL CODE OFFENCES - Offences against person and reputation - Second degree murder

Thursday, February 14, 2019 @ 8:39 AM  


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Appeal by the accused, Jiang, from a conviction for second degree murder. The theory of the defence was that the accused's mother, rather than the accused, killed the victim. The accused's mother died because of cardiac arrhythmia several weeks after the death of the victim. As a result, the mother's health was relevant to the issue of whether she was sufficiently robust to inflict the injuries that resulted in the victim's death. Partway through the cross-examination of the accused, the Crown disclosed medical records related to the mother's health for the first time. The accused applied for a mistrial. The trial judge accepted that the late disclosure constituted a serious breach of the accused's s. 7 Charter rights, causing actual prejudice. The trial judge found that any prejudice in the eyes of the jury would be mitigated by anticipated expert evidence that the mother was capable of inflicting the injuries sustained by the victim. However, that expert testified that it was beyond his competence to opine on the mother's physical abilities. The accused appealed the resultant conviction.

HELD: Appeal allowed. There was a reasonable possibility that the non-disclosure affected the overall fairness of the trial process. The non-disclosure required the accused to respond to factual assertions partially contradicted by the medical records. The Crown's accompanying questions regarding the records went to the credibility of the accused's testimony in support of his defence. Had defence counsel been aware of the issues raised by the medical reports, they likely would have adjusted tactics accordingly. The mother's antipathy toward the victim and her presence at the time of the killing meant that her role in the murder, if any, was a live issue before the jury. Given the reasonable possibility that the non-disclosure had an impact on the outcome, it was appropriate to direct a new trial.

R. v. Jiang, [2018] O.J. No. 6822, Ontario Court of Appeal, C.W. Hourigan, G.I. Pardu and A.L. Harvison Young JJ.A., December 27, 2018. Digest No. TLD-February112019008