Court of Appeal for Ontario

CITATION: R. v. Singh, 2013 ONCA 315

DATE: 20130510

DOCKET: C54622

Juriansz, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shameel Singh

Appellant

Counsel:

M. Gourlay duty counsel

Mabel Lai, for the respondent

Heard and released orally: April 16, 2013

On appeal from the conviction entered on March 11, 2011 and the sentence imposed on November 7, 2011 by Justice J.M. Fragomeni of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] This appeal must be allowed because of Crown’s counsel’s improper cross-examination of the appellant which rendered the trial unfair. In a sustained fashion, repeated for each of the three co-accused, the Crown cross-examined the appellant about the co-accuseds’ motives to fabricate their testimony.

[2] The trial judge did not deliver an adequate correcting instruction and, in fact, in his summary of the evidence, he reinforced the improper line of questioning by saying that the co-accused had no reason to falsely accuse the appellant.

[3] Credibility and identification were at the heart of the case. The determination of these issues depended on the co-accuseds’ testimony. The testimony of the three co-accused was inconsistent.

[4] We are satisfied that there was an appearance of unfairness and we infer actual prejudice.

[5] The appeal is allowed and the matter is remitted for a new trial.

“R.G. Juriansz J.A.”

“J. MacFarland J.A.”

“S.E. Pepall J.A.”