CITATION: R. v. Blair, 2011 ONCA 513

DATE:20110711

DOCKET: C50477

COURT OF APPEAL FOR ONTARIO

Rosenberg, Cronk and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Andre Blair

Appellant

Mark C. Halfyard, for the appellant

Jennifer Woollcombe, for the respondent

Heard and released orally: June 27, 2011

On appeal from the conviction entered by Justice Ian Nordheimer of the Superior Court of Justice, sitting with a jury, dated June 23, 2008.

ENDORSEMENT

[1] The first ground of appeal concerns the manner in which Mr. Clark gave evidence. It is apparent and was conceded by counsel that experienced defence counsel chose not to seek a mistrial but, rather, sought to make use of the manner in which Mr. Clark gave evidence to undermine his assertion that he lied to the police out of fear. This was a reasonable tactical decision and defence counsel made it clear in his jury address how the manner in which the witness gave evidence could be used.

[2] However, it was important that the jury understand that Mr. Clark’s gratuitous personal opinions could not be used as evidence. The trial judge did make this clear in his charge to the jury in virtually the identical terms suggested by defence counsel. The appellant now submits that this direction would have led the jury to disregard the manner in which Mr. Clark gave evidence in assessing his credibility.

[3] We do not agree. The jury was told that they could use the manner in which witnesses gave evidence in evaluating credibility. As a matter of common sense, the jury would have understood that this instruction would especially apply to Mr. Clark. We are satisfied that the trial judge’s instructions on this issue were correct.

[4] The second ground of appeal concerns a single question asked by Crown counsel in re-examination of the appellant’s uncle. We are satisfied that this was a proper question given defence counsel’s extensive cross-examination of the witness about the purpose of the Windsor trip. In any event, even if the question was improper, no substantial wrong or miscarriage of justice was occasioned. The question merely pointed out the notorious and obvious fact that Windsor is a border city. The defence was not caught by surprise by the question. As we have said, counsel had extensively cross-examined the uncle on the purpose of the trip in the obvious effort to blunt the possible prejudicial effect of the trip to Windsor shortly after the killing.

[5] Finally, we note that there was no objection to the question and the trial judge refused Crown counsel’s request to give a post offence conduct instruction based on the evidence of the Windsor trip.

[6] We would not give effect to this ground of appeal.

[7] Accordingly, the appeal must be dismissed.

Signed: “M Rosenberg J.A.”

“E. A. Cronk J.A.”

“David Watt J.A."