COURT OF APPEAL FOR ONTARIO

DATE: 20031017

DOCKET: C37759

RE: HER MAJESTY THE QUEEN (Respondent) – and – WALTER MURDEN (Appellant)

BEFORE: ABELLA, FELDMAN and ARMSTRONG JJ.A.

COUNSEL: Timothy E. Breen for the appellant

Kim Crosbie for the respondent

HEARD AND ENDORSED: October 15, 2003

On appeal from the conviction entered by Justice R. MacKinnon of the Superior Court of Justice, sitting with a jury, on January 11, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] While we are of the view that the appellant’s statement to the arresting officer had practically no probative value, we cannot see how its admission caused any substantial wrong or miscarriage of justice. It was, at its highest, an equivocal and ambiguous observation which could not have influenced the jury in any meaningful way.

[2] Nor do we agree with the remaining submissions. The trial judge did not err in excluding the evidence of the police officer’s opinion about the appellant’s statement to him. The officer’s opinion was a mixed one, and the trial judge did not err in exercising his discretion to exclude it, given its potentially prejudicial impact on the accused.

[3] Finally, despite his able submissions, we do not agree with Mr. Breen that the trial judge improperly restricted the defence’s cross-examination in connection with the complainant’s statement of claim. As for the Seaboyer argument, the proposed cross-examination was of such dubious probative value, that we see no basis for interfering with the trial judge’s discretion to restrict it.

[4] Accordingly, the appeal is dismissed.