DATE: 20020208 DOCKET: C36051
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) v. MANUEL CAMELLO (Appellant)
BEFORE:
CARTHY, DOHERTY and LASKIN JJ.A.
COUNSEL:
David Rose
for the appellant
Beverly A. Brown
for the respondent
HEARD:
February 4, 2002
On appeal from the conviction entered by Justice Hawkins, sitting with a jury, on October 2, 2000 and the sentence imposed on January 26, 2001.
E N D O R S E M E N T
[1] The appellant was convicted of the sexual assault on a young girl. The complainant stayed with the appellant’s sister while the complainant’s mother was at work. The appellant lived in the basement. The complainant testified to various sexual assaults, including rape which occurred over a considerable time period. The appellant denied any sexual contact with the complainant.
[2] The trial judge instructed the jury on the meaning of reasonable doubt in accordance with R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.). Unfortunately, he gave no instruction on the presumption of innocence. Particularly, he did not refer to the passage from R. v. Lifchus immediately preceding the passage that he quoted. In that passage, which the trial judge omitted from his charge, Cory J. said at p. 14:
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty.
[3] Without any instruction on the presumption of innocence, the jury could not properly apply the burden of proof. The burden of proof is applied from the starting point defined by the presumption of innocence.
[4] In his charge, the trial judge made referred to defence counsel’s comments concerning the presumption of innocence. We are not satisfied, however, that this reference constituted a clear incorporation by reference into the trial judge’s instructions of counsel’s comments.
[5] Counsel made no objection to the trial judge’s failure to instruct on the presumption of innocence. While the failure to object is always important, in our view, it cannot cure an error as fundamental as this one.
[6] The appeal is allowed, the convictions are quashed and a new trial is ordered.
“J.J. Carthy J.A.”
“Doherty J.A.”
“John Laskin J.A.”