Court File and Parties
Citation: R. v. Vanderheyden, 2008 ONCA 733 Date: 2008-10-24 Docket: C33804 and C41737
Court of Appeal for Ontario Before: Moldaver, Simmons and Lang JJ.A.
Between: Her Majesty the Queen (Respondent) and William Anthony Vanderheyden and Jack Cornelius Heyden (Appellants)
Counsel: Anil K. Kapoor, James Stribopoulos and Lindsay Daviau for the appellant William Anthony Vanderheyden James Lockyer, Philip Campbell and Michael Dineen for the appellant Jack Cornelius Heyden Christine Bartlett-Hughes, Riun Shandler, and Amy Alyea for the respondent
Heard and endorsed: October 21, 2008
On appeal from conviction by Justice John McIsaac of the Superior Court of Justice, sitting with a jury, dated October 28, 1999.
Appeal Book Endorsement
[1] With her usual candour, Ms. Bartlett-Hughes, on behalf of the Crown, concedes that the trial judge erred in foreclosing the appellants from challenging the factual underpinnings of the counselling to commit murder charges for which the appellant Vanderheyden stood convicted. In the circumstances of this case, we agree. In fairness, she notes, as do we, that the authorities from this court which inform her concession were decided after the trial judge’s rulings in this case.
[2] Given the importance of the counselling convictions to the Crown’s case – they provided a big boost to the credibility of two unsavoury witnesses whose evidence if believed, was sufficient of itself to convict both appellants, the Crown accepts that the curative proviso cannot be applied to save the convictions unless we are satisfied, among other things, that the appellant Vanderheyden would not have testified had the trial judge ruled differently and permitted him to challenge the factual underpinnings of the counselling convictions. To that, we respond that on this record, we cannot be so satisfied, even though we acknowledge that apart from the impugned ruling, other reasons existed which may have influenced his decision and led him not to testify.
[3] Accordingly, we must allow the appeal, set aside the convictions and order a new trial for both appellants.
[4] In light of this conclusion, all counsel agree that we need not address the many other issues raised on this appeal. We agree, with the proviso that we are not to be taken as commenting, one way or the other, on the impugned rulings or instructions in the charge with which the appellants take issue.