DATE: 20040521
DOCKET: C36671
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – SAVOUN KAN (Appellant)
BEFORE: LASKIN, FELDMAN and BLAIR JJ.A.
COUNSEL: Maureen Forestell
for the appellant
Gillian Roberts
for the respondent
HEARD: May 12, 2004
RELEASED ORALLY: May 12, 2004
On appeal from the convictions entered by Justice Tamarin Dunnet of the Superior Court of Justice, sitting with a jury, dated November 3, 2000.
E N D O R S E M E N T
[1] The appellant appeals his convictions for aggravated assault and discharging a firearm with intent to endanger life. He makes two submissions. First, the trial judge wrongly precluded him from eliciting the exculpatory parts of his statement; and second, the trial judge erred in permitting the Crown to cross-examine him on the previous shooting incident on February 1.
[2] We think that there are three answers to the first submission. First, the trial judge’s ruling did not prevent the appellant from seeking to lead the exculpatory parts of his statement in re-examination. He did not try to do so. Second, as the Crown points out, in one way or another, all of the evidence that might have been elicited came out at the trial. Third, as Ms. Forrester candidly acknowledged, this alleged error likely had very little impact on the verdict.
[1] We do not agree with the appellant’s second submission. In our view, the previous incident was relevant to the extent of the appellant’s knowledge of the other two men. Any prejudice from the cross‑examination on the incident was, at its highest, minimal. The cross-examination did not suggest that the appellant was anything other than a witness to the previous incident. Moreover, it was open to the appellant to clarify his role in re-examination. He chose not to do so. Thus, we find no error in the trial judge’s ruling. Even if she did err, the evidence played a minor role in the case. Therefore, its admission caused no substantial wrong.
[2] Accordingly the appeal is dismissed.
“John Laskin J.A.”
“K. Feldman J.A.”
“R. A. Blair J.A.”