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Criminal Law - PROCEDURE - Opening and closing statements by counsel - Trial judge’s duties - Charge or directions - Evidence of witnesses

Thursday, December 22, 2016 @ 7:00 PM  


Appeal by the accused, Clause, from a conviction for aggravated assault. The accused invited the complainant to her birthday party. Within 30 minutes, the complainant was sucker-punched and attacked by others. The complainant left the party to walk home. The accused and another woman picked him up and drove him home. The complainant was angry and arranged for a ride back to the party, where he attacked the accused’s brother with a baseball bat. In turn, the complainant was attacked by several individuals and hit with a variety of objects, including a pipe and beer bottles. The complainant’s roommates extracted him from the fracas and placed him in the backseat of a vehicle. While the complainant sat in the vehicle, somebody reached in with a beer bottle and stabbed him in the eye. The sole issue at trial was whether the accused was the perpetrator. The complainant and two of his roommates testified that the accused inflicted the injuries. The accused was convicted by a judge sitting with a jury. The accused appealed.

HELD: Appeal allowed. The trial judge failed to provide the jury with a timely corrective instruction regarding the Crown’s improper opening address referencing three statements by the accused to police, and characterizing her conduct as lying, belligerent, and intended to impede the investigation. The admissibility of those statements had yet to be ruled or agreed upon. The prejudice arising from the statements was not sufficiently mitigated. In addition, the trial judge failed to instruct the jury properly on use of the accused’s initial exculpatory statement to the police by failing to instruct on the differences between disbelief and fabrication. Also, the trial judge failed to instruct the jury on the possibility of collusion amongst the three key Crown eye-witnesses. Cumulatively, the errors resulted in an unfair trial. The conviction was set aside and a new trial was ordered.R. v. Clause<br/>[2016] O.J. No. 5894,<br/>Ontario Court of Appeal,<br/>R.J. Sharpe, D. Watt and D.M. Brown JJ.A.,<br/>November 17, 2016.<br/>Digest No. 3632-005