R. v. Kuzler, 2008 ONCA 701

CITATION: R. v. Kuzler, 2008 ONCA 701

DATE: 20081010

DOCKET: C48020

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Sharpe and Juriansz JJ.A.

BETWEEN:

Her Majesty the Queen

Appellant

and

Jay Steven Kuzler

Respondent

Alex Alvaro for the appellant

Mark Halfyard for the respondent

Heard: October 9, 2008

On appeal from the judgment of Justice W. Jenkins of the Superior Court of Justice dated October 25, 2007..

APPEAL BOOK ENDORSEMENT

[1] This is a Crown appeal of a jury verdict acquitting the respondent of several sexual offences against the young complainant. The complainant’s testimony at trial departed in some respects from her testimony at the preliminary inquiry. The Crown submits the trial judge erred by, first, refusing to allow the Crown to re-examine the complainant on statements she made before the preliminary inquiry that were said to be consistent with her trial evidence, and second, failing to grant a mistrial when the defence counsel, in his closing address regarding the inconsistent testimony, asked rhetorically “Where on earth did that come from?”

[2] We are not persuaded that the defence cross examination of the complainant implicitly alleged recent fabrication. Therefore, the trial judge did not err in refusing to allow the Crown to re-examine her on her prior statements. The issue becomes whether the trial judge erred in refusing to declare a mistrial after the defence closing address.

[3] The trial judge having heard the evidence and the closing submission decided this was not one of those clearest of cases that warranted a mistrial. The trial judge allowed the Crown to respond to defence counsel’s remark in her closing address. The way he dealt with the matter was well within his discretion.

[4] Accordingly, the appeal is dismissed.