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PROCEDURE - Trial judge's duties - Charge or directions - Evidence of witnesses - Trials - Mistrial

Monday, June 12, 2017 @ 10:31 AM  

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Appeal by the accused, French, from a conviction and sentence for second degree murder. The victim was the accused's common law spouse. She was found in an armoire with ligature marks around her neck and threads from a blue cloth bathrobe. The accused denied involvement in an interview with police. Weeks later, the accused voluntarily entered a detachment and confessed to the murder. He stated he strangled the victim with his hands and a blue bathrobe. At trial, the accused recanted his confession. He claimed he made a false confession in order to avoid denial of insurance proceeds in the event his partner's death was ruled a suicide. During jury deliberations, the victim's mother advised the Crown that a blue bathrobe was at the victim's home and was thrown away with other clothes belonging to the accused. Following consultation with counsel, the trial judge accepted the defence position that the evidence would go to the jury in an agreed statement of facts, the jury would be re-charged, and no mistrial would be declared. The accused was convicted and sentenced to life imprisonment without eligibility for parole for 17 years. The accused appealed.

HELD: Appeal dismissed. The trial judge did not err in failing to declare a mistrial given the clear position taken by the defence at trial. The trial judge and counsel was aware the jury could draw both inculpatory and exculpatory inferences from the new evidence. The introduction of the new evidence and the instruction to recommence deliberations did not cause irreparable prejudice to the accused. The jury was appropriately instructed to consider the new evidence as part of the evidence as a whole. Although the sentence imposed was at the upper end of the range, it was not manifestly unfit. Sentence: Life imprisonment; 17 years' parole ineligibility.

R. v. French, [2017] O.J. No. 2910, Ontario Court of Appeal, K.N. Feldman, J.C. MacPherson and M.L. Benotto JJ.A., June 6, 2017. Digest No. TLD-June122017001