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PROCEDURE - Trial judge’s duties - Charge or directions

Thursday, February 20, 2020 @ 10:24 AM  

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Appeal by Wilson from his jury conviction for sexual assault, kidnapping and uttering death threats and his sentence of indeterminate imprisonment imposed following the declaration he was a dangerous offender. DNA consistent with the appellant’s DNA was located on vaginal swabs taken from the complainant within hours after she was attacked by a stranger while walking alone at night in 1994. The appellant testified at trial that he might have had consensual intercourse with the complainant a few days before the attack. In his jury address, the appellant’s counsel argued DNA testing not done on fingernail clippings taken from the complainant and her shirt left a reasonable doubt. The trial judge found counsel’s submissions were misleading, as the defence had not requested the testing, and issued a corrective instruction. In finding the appellant was a dangerous offender, the trial judge relied on three rape convictions imposed after the subject offences.

HELD: Appeal dismissed. The trial judge made no error in his corrective instruction. He was entitled to conclude counsel had launched an unfair attack on the integrity of the investigation during the closing submission that called for a corrective instruction. He did not err by going farther than required to correct the problem identified. The trial judge did not contravene Lord Coke’s principle, which did not apply in dangerous offender proceedings, by relying on subsequent convictions in declaring the appellant a dangerous offender. It was entirely appropriate and necessary to consider subsequently committed offences when considering dangerousness. Sentence: indeterminate imprisonment.

R. v. Wilson, [2020] O.J. No. 30, Ontario Court of Appeal, M.L. Benotto, D.M. Brown and D. Paciocco JJ.A., January 6, 2020. Digest No. TLD-February172020006