DATE: 20040405

DOCKET: C36469

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – KENNETH KLEINSTEUBER (KLEINSTUEBER) (Appellant)

BEFORE: MacPHERSON and SHARPE JJ.A. and LANG J. (ad hoc)

COUNSEL: Keith E. Wright

for the appellant

Nadia Thomas for the respondent

HEARD: March 31, 2004

RELEASED ORALLY: March 31, 2004

On appeal from the conviction entered by Justice Helen King MacLeod of the Superior Court of Justice, sitting with a jury, dated June 4, 1999 and the sentence imposed by Justice MacLeod dated July 29, 1999.

E N D O R S E M E N T

[1] Unfortunately, the charge to the jury contained several errors in this case, some of which are serious.

[2] The most serious error was the absence of an instruction to the jury on the numerous prior consistent statements the complainant made to various people before she went to the police. A careful limiting instruction was required, (see R. v. R. (A.F.) (2001), 156 C.C.C. (3d) 335 (Ont. C.A.)), especially since the appellant testified in this case and, therefore, his credibility and that of the complainant were crucial to its resolution. This case plainly does not present the unique features of R. v. Demetrius (2003), 179 C.C.C. (3d) 26 (Ont. C.A.), where a limiting instruction was not required.

[3] Moreover, not only did the trial judge fail to give an appropriate instruction on this issue, in addition, the jury might well have taken from her charge that the earlier complaints could be improperly used to bolster the complainant’s credibility.

[4] In addition, the trial judge used the wrong version of the Lifchus charge a full sixteen months after it had been corrected by the Supreme Court of Canada.

[5] The trial judge also improperly limited the defence attempt to advance a theory based on a different potential perpetrator.

[6] The appeal is allowed and a new trial is ordered. However, we note that the appellant has served his sentence. This is an important factor which we trust the Crown will carefully consider in determining whether to proceed with a new trial.

“J. C. MacPherson J.A.”

“Robert J. Sharpe J.A.”

“S. E. Lang J.A.”