DATE: 20020218
DOCKET: C30486
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and– FREDERICK ROUKEMA (Appellant)
BEFORE:
McMURTRY C.J.O., CATZMAN and ABELLA JJ.A.
COUNSEL:
Paul Burstein, for the appellant
Christine Bartlett-Hughes, for the respondent
HEARD:
February 13, 2002
RELEASED ORALLY:
February 13, 2002
On appeal from the conviction imposed by Justice Douglas J.A. Rutherford dated June 23, 1998.
E N D O R S E M E N T
[1] The appellant first submitted that, having regard to the differing circumstances between the experiment and the death of the victim, the videotaped experiment required the trial judge to give a limiting instruction to the jury. In our view, there was nothing inappropriate about the depiction in the videotape or in the use made of it by the Crown in his address to the jury that required such a limiting instruction.
[2] Counsel for the appellant relied on the submissions in his factum regarding the failure to instruct the jury on Taylor’s assault of the victim on an earlier occasion and refusal to instruct the jury on Taylor’s alleged confession to a Salvation Army worker. He did not address oral argument on these submissions. We accept the written submissions in the respondent’s factum as a complete answer to these points, and we need not address them further.
[3] The appellant submitted that the trial judge erred in failing to instruct the jury regarding the appellant’s after the fact conduct. In our view, Crown counsel was entitled to use the conduct in question in relation to the appellant’s ability to form the necessary intent notwithstanding his consumption of alcohol, and Crown counsel’s comments to the jury on this subject were not inappropriate.
[4] Finally, the appellant submitted that the Crown’s closing address to the jury improperly contained expressions of personal opinion that denigrated the position of the defence. The respondent concedes, and we agree, that Crown counsel at trial should not express personal opinions about the evidence, but we also agree with the respondent’s submission that the comments in question did not undermine the fairness of the trial.
[5] The appeal is dismissed.
Signed: “R.R. McMurtry C.J.O.”
“M.A. Catzman J.A.”
“R.S. Abella J.A.”