W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:
486.(3) Subject to subsection (4), where an accused is charged with
(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and –
A.E.R. (Appellant)
BEFORE:
ROSENBERG, MOLDAVER AND SHARPE JJ.A.
COUNSEL:
A.E.R.
in person
Leslie Maunder
as Amicus
Kim Crosbie
for the respondent
HEARD & RELEASED ORALLY:
October 24, 2005
On appeal from conviction by Justice Barry H. Matheson of the Superior Court of Justice dated November 28, 2002 and from the sentence imposed on January 31, 2003.
E N D O R S E M E N T
1With her usual candour, Ms. Crosbie conceded that portions of the trial Crown’s cross-examination were either improper or inappropriate. We agree. In particular it was improper for the Crown to suggest in cross-examination that the appellant had failed to deny the alleged offences in his evidence in-chief. Likewise, it was improper for the Crown to cross-examine on several extraneous matters casting the appellant in a bad light including the insurance matter, the “secret torture place in Welland” and an incident in which a police officer allegedly spat on the appellant. It was also wrong for the Crown to ask the appellant if he thought that he [the trial Crown] was a member of the conspiracy. These and other matters give us cause for concern about the fairness of the trial. Unfortunately, the trial judge did not address them in his charge to the jury. In our view, he should have, particularly in view of the fact that the appellant was unrepresented by counsel.
2Our primary concern lies in the trial judge’s failure to instruct the jury on the limited use they could make of the conspiracy theory advanced by the appellant. The trial Crown cross-examined extensively on this and highlighted the many baseless allegations made by the appellant against various people including judges and Crown attorneys. Indeed the trial Crown devoted two thirds of his cross-examination to this line of attack.
3Unquestionably, the jury was entitled to consider the appellant’s baseless allegations in assessing his credibility. However, in view of the prominence given to the conspiracy theory and the baseless allegations, the trial judge should have made it clear to the jury that there was no obligation on the appellant to explain why his daughter and others may have fabricated their evidence. Further, he should have instructed the jury that even if they rejected his conspiracy theory that did not mean that his denial of the essential allegations should necessarily be rejected. Finally, the trial judge should have alerted the jury to the appellant’s explanation for his baseless allegations and told the jury that they could take his explanation into account in determining what impact, if any this aspect of his evidence should have on their assessment of his credibility.
4In our opinion, viewed in combination, the conduct of the Crown and the failure of trial judge to provide proper limiting instructions resulted in an unfair trial for this unrepresented accused.
5Accordingly we would allow the appeal, set aside the convictions and order a new trial. However, given that this would be the fourth trial and that the appellant has completed the custodial part of his sentence, we would enter a stay of the proceedings.
Signed: “M.J. Moldaver J.A.”
“Robert J. Sharpe J.A.”
“M. Rosenberg J.A.”