Court of Appeal for Ontario

CITATION: R. v. Barnes, 2009 ONCA 432

DATE: 20090526

DOCKET: C48034

BEFORE: Rosenberg, Armstrong and Epstein JJ.A.

BETWEEN:

Her Majesty The Queen

Respondent

And

Erdley Richard Barnes

Appellant

COUNSEL:

Mark Halfyard for the appellant

Rick Visca for the respondent

Heard and released orally: May 13, 2009

On appeal from conviction by Justice C. J. Horkins of the Superior Court of Justice, sitting with a jury, dated October 26, 2007.

ENDORSEMENT

[1] As the law now stands, a failure to adequately investigate a case does not give rise to an independent Charter violation. Where, as here, the Crown has met its disclosure obligations, to make out a s. 7 breach on the basis of evidence that is no longer available the accused must establish actual prejudice to the right to make full answer and defence: see R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680 at para. 25.

[2] The appellant has not shown actual prejudice. We agree with the trial judge that there was no violation of s. 7. It follows that the appellant was not entitled to an instruction in accordance with R. v. Bero (2000), 2000 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.).

[3] We are also not satisfied that the charge to the jury was inadequate. It is apparent that whether the video tapes would have shown anything favourable to the appellant’s trial is speculative. The trial judge gave the jury the standard Lifchus charge to alert the jury to the fact that a reasonable doubt can arise from a lack of evidence.

[4] We note that defence counsel, not Mr. Halfyard, took no objection to the charge. While that is not fatal to this ground of appeal, it is some indication that the defence did not perceive that they were prejudiced by the trial judge’s reference to the video tapes in distinction to the treatment of the lost notes. While it would have been preferable if the trial judge had referred to the lack of the video tapes along with some of the other evidence casting doubt on the identification, given the speculative nature of the evidence, the failure to object and the Lifchus charge, we are satisfied that no prejudice was occasioned.

[5] Accordingly, the appeal from conviction is dismissed.

Signed: "M. Rosenberg J.A."

"Robert P. Armstrong J.A."

"G. J. Epstein J.A."