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PROCEDURE - Opening and closing statements by counsel

Wednesday, December 23, 2020 @ 6:49 AM  

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Appeal by the accused from conviction for failing to comply with long-term supervision. The Crown properly acknowledged that the conviction appeal should be allowed, and a new trial ordered. Police officers observed the appellant drinking what appeared to be beer with a friend at a bar, contrary to the Long-Term Supervision Order condition that he not consume or possess alcohol. The appellant testified that he was drinking iced tea, not beer, when he was observed at the bar. While addressing the appellant’s credibility in her closing submissions, Crown counsel suggested to the jury the appellant reviewed the police report and decided to fabricate a story that he purchased iced tea.

HELD: Appeal allowed. New trial ordered. It was improper and unfair for the Crown to allege a theory of concoction for the first time in closing submissions. The appellant was self‑represented at trial, and the trial judge was not asked to, and did thus not provide a corrective instruction to the jury.

R. v. Jerace, [2020] B.C.J. No. 1878, British Columbia Court of Appeal, P.M. Willcock, L.A. Fenlon and S.A. Griffin JJ.A., November 16, 2020. Digest No. TLD-December212020006