DATE: 20050214

DOCKET: C37704

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. PIARA SINGH RAI (Appellant)

BEFORE: MCMURTRY C.J.O., DOHERTY & MACFARLAND JJ.A.

COUNSEL: Mangesh Duggal for the appellant Miriam Bloomenfeld for the respondent

HEARD: February 10, 2005

RELEASED ORALLY: February 10, 2005

On appeal from the conviction entered by Justice Dyson of the Superior Court of Justice, sitting with a jury, dated June 6, 2001 and the sentence imposed dated June 21, 2001.

E N D O R S E M E N T

[1] The appellant was convicted of the attempted murder of his daughter. The Crown’s case was an overwhelming one and the appellant did not testify.

[2] The appellant’s submissions on appeal all arise out of the Crown’s opening address. The appellant submits that the opening was improper because it did not faithfully describe the evidence as eventually adduced from the Crown witnesses.

[3] We were referred to only one minor variation between the Crown’s outline of the evidence in her opening and the evidence as it actually developed before the jury. In our view, that variation was a minor one and could not have prejudiced the appellant, particularly given the repeated admonition to the jury that they were to take the evidence from what the witnesses said and not from what counsel said.

[4] The appellant also argues that the reference to the Crown in the course of her opening to cultural considerations, “attacked” the appellant’s cultural background and encouraged the jury to decide the case in part, at least, based on negative stereotypes of the appellant’s background and culture. We have read the opening and can find nothing improper in the comments made by counsel. Quite simply, the Crown’s opening cannot possibly bear the interpretation urged by the appellant.

[5] The appeal is dismissed.

“R. McMurtry C.J.O.”

“Doherty J.A.”

“J. MacFarland J.A.”