Court of Appeal for Ontario

Citation: R. v. MacLellan, 2008 ONCA 204 Date: 2008-03-26 Docket: C41418

Between:

Her Majesty the Queen Respondent

and

Glen Robertson MacLellan Appellant

Before: Sharpe, Armstrong and Watt JJ.A.

Counsel: Robert Sheppard for the appellant Joanne K. Stuart for the respondent

Heard and released orally: March 14, 2008

On appeal from the conviction entered on September 12, 2003 by Justice Thomas A. Heeney of the Superior Court of Justice, sitting with a jury.

Endorsement

[1] The appellant advances two grounds of appeal against conviction. Each asserts error in the charge to the jury. We would give effect to neither.

[2] The first ground of appeal has to do with the judge’s instructions about the use the jurors could make of evidence of the results of forensic DNA analysis of bodily substances found on a black scarf found near the premises robbed. To be more specific, the appellant contends that the jurors should have been told that before they could consider the expert opinion that the appellant was the source of the bodily substances found on the scarf, they had to be satisfied beyond a reasonable doubt that the scarf found was that worn by the robber.

[3] The appellant acknowledges that, as a general rule, the criminal standard of proof applies to the evidence as a whole, not to individual items of evidence relied upon by the prosecutor. See R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 at 211 per Sopinka J. We see no reason to depart from that basic principle in this case. To insist upon proof beyond a reasonable doubt of the identity of the scarf found with that worn by the robber, as a condition precedent to jury use of the results of forensic DNA analysis of the bodily substances, or indeed of the scarf itself as a piece of real evidence, is to impose a threshold that is inconsistent with Morin and incompatible with the function of the trier of fact in cases involving circumstantial evidence.

[4] The appellant advances a second ground of appeal. He contends that the trial judge’s instructions on the use that jurors could make of the appellant’s criminal record were flawed. In his instructions to the jury about the limitations the law imposes on the jurors’ use of the prior criminal convictions acknowledged by the appellant in his testimony, the trial judge pointed out that convictions for crimes involving dishonesty may have a greater impact on the appellant’s credibility than convictions for certain other offences, like assault and impaired driving. The appellant says that the trial judge should have gone further and told the jury, in addition to the usual prohibited use instruction (inferring guilt from evidence of bad character) that the dishonesty references had to do with testimonial reliability only, not dishonest behaviour such as that alleged. The prohibited use instructions, he says, should have been linked specifically to crimes of dishonesty so that the jurors would not infer commission of the crime of dishonesty charged from the appellant’s prior convictions for crimes of dishonesty.

[5] We would not give effect to this complaint. The jury was plainly told:

One thing you must not do is use the criminal record of the accused to conclude that he is a bad person and therefore more than likely to have committed the crimes he is accused of at this trial. A criminal record can be used as a factor in assessing his credibility only and not for any other purpose.

[6] The appellant’s criminal record included several crimes of dishonesty, none of which were identical to the offences charged. The prohibited chain of reasoning was made plain. It related to all the appellant’s convictions, including those of dishonesty. No further instruction was requested and none was required.

[7] In the result, the appeal from conviction is dismissed.

“Robert J. Sharpe J.A.” “Robert P. Armstrong J.A.” “David Watt J.A.”