Court of Appeal for Ontario

CITATION: R. v. Davy, 2015 ONCA 26

DATE: 20150120

DOCKET: C56230

Feldman, Simmons and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Cheimene Davy

Appellant

Michael Dineen, for the appellant

Andrew Wiese, for the respondent

Heard: January 15, 2015

On appeal from the conviction entered on April 5, 2012 and the sentence imposed on April 10, 2012 by Justice Deena F. Baltman of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant raises two grounds of appeal. The first is that the trial judge erred by rejecting the defence request, in addition to a Parkes challenge, for a challenge for cause based on the fact that the defence was asserting that the appellant was a prostitute. The defence position was that the appellant imported cocaine from Guyana under duress from two pimps.

[2] The trial judge gave very brief reasons for rejecting the challenge, stating:

With respect to the first application, namely for the defence to include a question in the challenge for cause relating to the defendant’s work in the sex trade, that application is declined. While I accept that there may be an element of society that is potentially biased against sex trade workers, I am not persuaded that such individuals are incapable of setting aside their bias on instructions from the trial judge. [see R. v. Barnes, Ont. C.A., September 1999]

[3] The decision to allow or decline a challenge for cause question is a discretionary one. On the record before her, in this case, we see no error in principle by the trial judge, and no basis to overturn that decision.

[4] Second, the appellant submits that the Crown’s cross-examination of the appellant on her notebook went too far and resulted in an unfair trial.

[5] We disagree.

[6] The notebook was admitted into evidence on consent of the defence and indeed was used as part of the defence examination-in-chief of the appellant. Apart from one objection on the Crown’s cross-examination to which the trial judge gave effect, the defence did not object to the remainder of the cross-examination or to the charge to the jury.

[7] To guard against a possible misuse of the evidence, the trial judge provided numerous cautions to the jury on the use of the notebook evidence.

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

[9] Accordingly, the appeal is dismissed.

“K. Feldman J.A.”

“J. Simmons J.A.”

“S.E. Pepall J.A.”