DATE: 20030627

DOCKET: C38119

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. JOSEF MANSOUR (Appellant)

BEFORE: DOHERTY, MACPHERSON and SHARPE JJ.A.

COUNSEL: P. Burstein for the appellant

Thomas Galligan for the respondent

HEARD: June 23, 2003

ORALLY

RELEASED: June 23, 2003

On appeal from the conviction entered by Justice J.R. McIsaac, sitting with a jury, dated December 11, 2001 and the sentence imposed dated March 15, 2002.

E N D O R S E M E N T

[1] Mr. Burstein, who appears as duty counsel, has very ably advanced two grounds of appeal on behalf of the appellant. We cannot give effect to either argument.

[2] The trial judge did not endorse Crown counsel’s opinion as to the reliability of the witness, Borello, but instead put the Crown’s position with respect to her reliability, just as he had put the defence position with respect to her reliability in the immediately preceding paragraph.

[3] The trial judge’s instructions on the use which the jury could make of the appellant’s statement, and in particular the exculpatory parts of that statement, were correct in law and, in our view, would not have confused the jury.

[4] Mr. Mansour vigorously advanced several grounds of appeal on his own behalf. We also cannot give effect to those arguments.

[5] The Crown did not call Ms. Borello on this trial. It had called her on the first trial and at the preliminary inquiry. Crown counsel is entitled to determine what witnesses will be called in any particular trial on behalf of the Crown. That decision may be reviewed by a court only on very narrow grounds. None of those grounds exists in this case. Ms. Borello was called by the defence, the Crown was free to cross-examine Ms. Borello and the limits set out in s. 9 of the Canada Evidence Act had no application.

[6] The admissibility of the appellant’s out-of-court statement to the police officer shortly after the accident was not challenged at trial. It was in part exculpatory and to that extent became a central feature of the defence at trial. The appellant did not testify. As there was no objection taken to the admissibility of the statement, indeed it was tendered on consent, we are satisfied that we should not reconsider its admissibility at this time. Nor is there any basis upon which we can “second guess” counsel’s decision to agree to the admissibility of the statement.

[7] There is no merit to the issue estoppel argument or the related Charter arguments. The appellant was acquitted of criminal negligence at his first trial but no verdict was reached on the dangerous driving causing death charge. The Crown was entitled to retry that charge absent any basis upon which it could be held that such a retrial would constitute an abuse. There is no basis for that finding in this case.

[8] The verdict was not unreasonable. The Crown’s position was supported by some expert evidence and by the evidence of a witness (Ms. Rest). We cannot say that no jury, properly instructed, could have come to this conclusion.

[9] The instruction by the trial judge on the issue of causation both initially and in the recharge complied with recent pronouncements of the Supreme Court of Canada: R. v. Nette (2001), 2001 SCC 78, 158 C.C.C. (3d) 486 (S.C.C.). A trial judge has a discretion as to how to instruct the jury so as to conform with the dictates of the recent jurisprudence. We see no basis upon which to say that the words chosen by the trial judge did not properly convey the meaning of legal causation.

[10] With respect to sentence, we see no error in principle in the sentence imposed and would not interfere with that sentence.

[11] The appeal from conviction is dismissed and the appeal from sentence is dismissed. A warrant may issue for the arrest of the appellant, if necessary.

“Doherty J.A.”

“J.C. MacPherson J.A.”

“Robert J. Sharpe J.A.”