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APPEALS - Grounds - Miscarriage of justice

Tuesday, August 20, 2019 @ 8:27 AM  


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Appeal by the accused from conviction for sexual assault and threatening death. The complainant testified that while she was waiting at a bus stop, the appellant approached her, grabbed her to an alleyway and sexually assaulted her. The appellant denied sexually assaulting the complainant but admitted assaulting her. He stated that he was trying to frighten the complainant, because he mistakenly thought she was a friend of his former girlfriend. During closing submissions by defence counsel, the trial judge suggested to defence counsel that he had violated the rule in Browne v. Dunn. In his response, counsel, in breach of solicitor-client privilege, confirmed that the appellant testified to a different version of events than counsel expected to hear. In his reasons for judgment, the trial judge referred to the information disclosed to him in breach of solicitor-client privilege as one reason for rejecting the appellant’s testimony.

HELD:  Appeal allowed. New trial ordered. The breach of solicitor-client privilege that followed the trial judge’s questions about the rule in Browne v. Dunn, and the trial judge’s use of that information in finding the appellant guilty, constituted a miscarriage of justice. Regardless of whether it was determinative in finding the appellant guilty, the trial judge’s use of the information disclosed to him in breach of solicitor-client privilege created an appearance of unfairness that rose to the level of a miscarriage of justice.

R. v. Olusoga, [2019] O.J. No. 3532, Ontario Court of Appeal, K.N. Feldman, K.M. van Rensburg and G. Huscroft JJ.A., July 5, 2019. Digest No. TLD-August19019004