DATE: 20030117

DOCKET: C38876

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – TIM PLAYFORD (Appellant)

BEFORE: MORDEN, LASKIN, and FELDMAN JJ.A.

COUNSEL: Delmar Doucette for the appellant

Kim Crosbie for the respondent

HEARD: January 13, 2003

RELEASED ORALLY: January 13, 2003

On appeal from the conviction by Justice Robert M. Thompson sitting with a jury dated April 20, 2000.

E N D O R S E M E N T

[1] With respect to the conduct of Crown counsel, specifically, his sarcastic questions and observations, no doubt they reflected badly on Crown counsel but we are far from persuaded that the number of the incidents and nature of what was said resulted in a miscarriage of justice.

[2] Respecting the “McNeil” point, assuming that the comments of Crown counsel and the trial judge’s statement reflected an error, we are satisfied that they occasioned no prejudice to the appellant. It would have been obvious to the jury that Stevenson would have denied any assault on Fidler and there was no pre-charge or post-charge objection to the charge as given.

[1] With respect to self-defence and the issue raised respecting provocation, we are satisfied that it would have been obvious to the jury that there was no evidence of provocation. Accordingly, the trial judge’s failure to so instruct the jury would have resulted in no prejudice. There was no objection to the charge on this point.

[2] The remaining point with respect to self-defence is based on the trial judge’s misstatement of the evidence on page 742 in volume 3 of the transcript. This misstatement was corrected by what the trial judge said to the jury both before and after this passage and, again, there was no objection to the charge.

[3] In the result, the appeal is dismissed.

“J.W. Morden J.A.

“J. Laskin J.A.”

“K. Feldman J.A.”