DATE: 20030724
DOCKET: C38746
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – TIMOTHY GLENN ALLEN DEMONT (Appellant)
BEFORE: LASKIN, MOLDAVER and CRONK JJ.A.
COUNSEL: David E. Harris For the appellant
Christine Bartlett-Hughes For the respondent
HEARD: July 17, 2003
RELEASED ORALLY: July 17, 2003
On appeal from the convictions entered by Justice R. Scott of the Superior Court of Justice, sitting with a jury, on December 12, 2001 and sentence imposed on February 8, 2002.
E N D O R S E M E N T
[1] In our view, there must be a new trial in this matter.
[2] The evidence led to explain the absence of Chris Demont was highly prejudicial to the appellant. It left the jury with the erroneous impression that Mr. Demont had helpful evidence to give on behalf of the Crown, that the Crown had unsuccessfully sought his attendance, and that the appellant was somehow responsible for his absence.
[1] The truth of the matter is that Mr. Demont, to the knowledge of the Crown, was more likely to give evidence favourable to the defence than to the prosecution. In the circumstances, we think that the evidence concerning Mr. Demont’s absence should not have been permitted. Instead, the trial judge should simply have told the jury that it was not to speculate one way or the other on the absence of Mr. Demont and that it was to decide the case based solely on the evidence before it.
[2] In our view, the error was serious. Having regard to the weaknesses in the Crown’s case, including the credibility problems associated with the complainant, we are of the view that this is not an appropriate case in which to apply the curative proviso.
[3] In light of our disposition on this ground of appeal, we find it unnecessary to address the other two grounds raised by the appellant. Also, it is unnecessary to deal with the sentence appeal, which has been abandoned.
[4] In the result, the appeal is allowed, the convictions are quashed and a new trial is ordered.
“John Laskin J.A.”
“M. J. Moldaver J.A.”
“E. A. Cronk J.A.”