DATE: 20030730
DOCKET: C36141
COURT OF APPEAL FOR ONTARIO
LASKIN, MOLDAVER and CRONK JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Timothy E. Breen, for the appellant
Respondent
- and -
ROBERT MCGEE
Philip Perlmutter, for the respondent
Appellant
Heard: July 16, 2003
Released Orally: July 16, 2003
On appeal from the conviction imposed by Justice Paul G. M. Hermiston of the Superior Court of Justice, sitting with a jury, dated September 27, 2000.
BY THE COURT:
[1] The appellant advances two submissions:
The trial judge erred in failing to find that the appellant’s rights under section 10(b) of the Charter had been violated. Thus, he erred in admitting the appellant’s statement to the police; and
The trial judge erred in failing to give a limiting instruction to the jury on its use of the appellant’s statements.
We do not agree with either submission.
[2] The trial judge found that the appellant was given a reasonable opportunity to exercise his right to counsel and unequivocally waived that right. That finding was open to the trial judge and we therefore have no basis to interfere with it.
[3] In the light of the trial Crown’s closing address, it would have been preferable had the trial judge given the limiting instruction argued for by Mr. Breen, at least for the appellant’s statement to the police. The Crown on appeal concedes as much. But defence counsel told the jury that the falsity of the appellant’s statements could not give rise to an inference of guilt and the trial judge did not instruct the jury that it could use the statements as affirmative evidence of guilt. In these circumstances we are not persuaded that a limiting instruction was required as a matter of law.
[4] Moreover, even if such an instruction was required for the appellant’s statement to the police, we think the Crown would have been entitled to an instruction on concoction for the appellant’s statements to Logan and the complainant. Therefore, any harm caused by the failure to give a limiting instruction was minimal.
[5] Finally, even assuming that the failure to give a limiting instruction amounted to an error of law, we would apply the proviso. In our view, the case against the appellant was overwhelming.
[6] For these reasons the appeal is dismissed.
RELEASED: July 30, 2003
“JIL”
Signed: “John Laskin J.A.”
“M.J. Moldaver J.A.”
“E.A. Cronk J.A.”