Court of Appeal for Ontario

Date: 2001-09-20 Docket: C35714

Re: Her Majesty the Queen (Respondent) –and– Jeremy Hall (Appellant)

Before: Carthy, Weiler and Feldman JJ.A.

Counsel: Irwin Koziebrocki, for the appellant J. Sandy Tse, for the respondent

Heard: September 13 and 14, 2001

On appeal from the conviction imposed by Justice Paul G. Philp, sitting with a jury, dated November 28, 2000 and from the sentence imposed by Justice Philp dated November 30, 2000.

Endorsement

[1] The appellant was convicted of aggravated assault and sentenced to 4½ years’ imprisonment in addition to time served treated as two years for a total of 6½ years. He appeals both his conviction and sentence. The appellant raises two grounds on his appeal from conviction.

[2] The first issue is whether the trial judge properly instructed the jury on s. 41 of the Criminal Code. The trial judge’s simple instructions on s. 41 to the jury enured to the benefit of the appellant. We would dismiss this ground of appeal.

[3] The second ground of appeal is based on the submission that the trial judge erred in allowing the Crown to cross-examine Ms. LeBlanc on her prior statement pursuant to s. 9(2) of the Canada Evidence Act. In our opinion, even if the trial judge erred in allowing the crown to cross-examine Ms. LeBlanc, the jury were not misled into thinking they could use her statement to the police as proof of the truth of its contents. The jury’s question about that evidence before the charge indicates that they knew they could not use the statement for the truth of its contents. The note read: “If the evidence from Jeremy’s sister’s police interviews is to be disregarded, why was it introduced? After all, it was introduced after much deliberations (in camera).” This note indicates an enlightened jury, one that can be taken not only to have understood the trial judge’s instruction that the evidence had no use, but also, not to have allowed the fact that they heard the evidence to be used to the prejudice of the accused. The appeal against conviction is dismissed.

[4] With respect to sentence, the accused’s record is a long one, but the longest term he has served is two years. In our view, it was an error in principle to jump to 6½ years. Even given the ferocity of this attack, we think the sentence should have been five years with two years’ credit for time served for an effective sentence of three years. Accordingly, leave to appeal sentence is granted, the appeal as to sentence is allowed and the sentence varied to three years.

(signed) “J. J. Carthy J.A.” “K. M. Weiler J.A.” “K. Feldman J.A.”