CITATION: R. v. Lewis, 2011 ONCA 402

DATE: 20110520

DOCKET: C48384

COURT OF APPEAL FOR ONTARIO

Rosenberg, Lang and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Derek Lewis

Appellant

Michael Dineen, for the appellant

Benita Wassenaar, for the respondent

Heard: May 18, 2011

On appeal from the conviction entered by Justice Nancy Mossip of the Superior Court of Justice dated January 24, 2008.

APPEAL BOOK ENDORSEMENT

[1] In our view, this appeal must be allowed. It was an error to leave for the jury as consciousness of guilt that the appellant did not call the police or report to the police what had happened. Leaving aside whether on the facts of this case that evidence had any probative value, the direction infringed the holding in R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519 at paras. 51 and 56. This is not a proper case to apply the proviso. The Crown’s case was not overwhelming and the direction could have impacted on the fairness of the trial.

[2] In fairness to the trial judge, we note that the evidence was led in chief from the appellant and no objection was taken to the charge to the jury.

[3] Accordingly, the appeal is allowed and a new trial ordered.