COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Major, 2012 ONCA 577

DATE: 20120906

DOCKET: C54709

MacPherson, Armstrong and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Major

Appellant

Gavin S. MacKenzie, for the appellant

Grace Choi, for the respondent

Heard and released orally: September 4, 2012

On appeal from the conviction entered on June 22, 2011 by Justice Steven Rogin of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant, Jason Major, appeals from his conviction by Rogin J., sitting with a jury, on June 22, 2011, for uttering a threat to cause death, criminal harassment, and two counts of breach of probation.

[2] The appellant alleges that the trial judge erred by failing to properly review the theory of the defence in his charge to the jury, especially with respect to the complainant’s motive to lie about the appellant’s alleged offences.

[3] We disagree. The jury charge and re-charge, taken together, made it abundantly clear that the principal defence position was that the complainant had lied in her testimony. The potential motive to lie – to improve her position in Children’s Aid Society proceedings involving her and the appellant – was obvious to the jury from the closing addresses of both counsel. Moreover, after the trial judge specifically addressed the defence theory in his re-charge, defence counsel formally agreed with its contents on this issue.

[4] The appellant contends that the trial judge failed to tell the jury that confirmatory evidence relating to the complainant’s testimony had to be independent of that evidence.

[5] We do not accept this submission. It is obvious from the trial judge’s instruction on this issue, and especially from the items he listed as possible sources of confirmatory evidence (e.g. the contents of the recordings and transcripts of the voice message of the appellant to a CAS worker) that the jury would have understood this point.

[6] The appellant takes issue with some of the examples of possible confirmatory evidence, including the fact that the appellant had pleaded guilty to a previous assault on the complainant and that the appellant and complainant had slept together on April 15, 2010.

[7] We see no problem with these examples. The former was raised by the defence in its cross-examination of the complainant (on a recantation issue) and the trial judge provided a proper caution about propensity reasoning. The latter was directly relevant to one of the breach of probation charges.

[8] Finally, the appellant submits that the trial judge should not have left the appellant’s post-offence conduct with the jury. We disagree. In our view, the trial judge’s decision to leave this issue with the jury and the contents of his charge on this issue were appropriate.

[9] The appeal is dismissed.

“J.C. MacPherson J.A.”

“Robert P. Armstrong J.A.”

“David Watt J.A.”