COURT OF APPEAL FOR ONTARIO

DATE: 20001004

DOCKET: C33043

RE: HER MAJESTY THE QUEEN (Respondent) –and– JAMES WILLIAM PRITCHARD (Appellant)

BEFORE: MORDEN, CATZMAN and AUSTIN JJ.A.

COUNSEL: David M. Tanovich, for the appellant

Christine Tier, for the respondent

HEARD: September 28, 2000

On appeal from the conviction imposed by Justice John G. Kerr, sitting with a jury, dated September 21, 1998.

E N D O R S E M E N T

[1] There is no challenge to the appellant’s convictions on the counts other than the count of attempted murder.

[2] With respect to the conviction for attempted murder, the appellant submits that the trial judge erred in admitting evidence relating to a complaint of assault made by Marie Keane against the appellant in 1990. Further, the appellant submits that the trial judge erred in failing to give a limiting instruction with respect to this evidence and the evidence relating to the other counts in the indictment.

[3] We are satisfied that a limiting instruction relating to the evidence on the other counts would have served only to confuse the jury in its approach to determining its verdict on those counts. It is impossible to confine the evidence on each of those counts, when considering each count separately, in so far as it relates to the appellant’s animus respecting Marie Keane and his general motivation in the period from December 23 to December 27, 1997. This evidence showed escalating jealousy, fear and anger on the part of the appellant relating to Marie Keane.

[4] The evidence relating to the alleged assault in 1990 was admissible to show the state of the marriage at that time and to rebut the appellant’s position that the marriage at that time was a good one. The trial judge should have instructed the jury that this was the only purpose of this evidence and that it should not be relied upon to infer that the appellant’s character was such that he was capable of committing attempted murder.

[5] The evidence supporting the conviction for attempted murder was overwhelming. The incident, which involved the use of a knife which the appellant had taken with him, was observed by several witnesses. It was part of an escalating situation of increased animus on the appellant’s part against Marie Keane and his evidence relating to the incident could fairly be regarded as incredible. In these circumstances, we are satisfied that the failure to give the limiting instruction occasioned no substantial wrong or miscarriage of justice.

[6] The appeal from convictions is therefore dismissed. The appellant has abandoned his sentence appeal. The appeal from sentence is dismissed as an abandoned appeal.

Signed: “J.W. Morden J.A.”

“M.A. Catzman J.A.”

“Austin J.A.”