Court of Appeal for Ontario
Juriansz, MacFarland and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Shameel Singh
Appellant
Counsel:
M. Gourlay duty counsel
Mabel Lai, for the respondent
Heard and released orally: April 16, 2013
On appeal from the conviction entered on March 11, 2011 and the sentence imposed on November 7, 2011 by Justice J.M. Fragomeni of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
1This appeal must be allowed because of Crown’s counsel’s improper cross-examination of the appellant which rendered the trial unfair. In a sustained fashion, repeated for each of the three co-accused, the Crown cross-examined the appellant about the co-accuseds’ motives to fabricate their testimony.
2The trial judge did not deliver an adequate correcting instruction and, in fact, in his summary of the evidence, he reinforced the improper line of questioning by saying that the co-accused had no reason to falsely accuse the appellant.
3Credibility and identification were at the heart of the case. The determination of these issues depended on the co-accuseds’ testimony. The testimony of the three co-accused was inconsistent.
4We are satisfied that there was an appearance of unfairness and we infer actual prejudice.
5The appeal is allowed and the matter is remitted for a new trial.
“R.G. Juriansz J.A.”
“J. MacFarland J.A.”
“S.E. Pepall J.A.”
