COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2016 ONCA 469

DATE: 20160613

DOCKET: C61646

Feldman, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dennis Smith

Appellant

Dennis Smith, in person

Erika Chozik, duty counsel

Tracy Kozlowski, for the respondent

Heard: June 7, 2016

On appeal from the conviction entered on July 14, 2015 and the sentence imposed on July 17, 2015 by Justice Trotter of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals his conviction on the basis that the “bad character” evidence that was inadvertently given by two witnesses prejudiced the jury and was not sufficiently corrected by the mid-trial instruction or the charge to the jury given by the trial judge on the issue. We do not agree.

[2] The mid-trial instruction was strong and unequivocal, as was the charge. Most importantly, the trial judge considered the issue of a mistrial but rejected it as unnecessary. He stated at p. 20 of the supplementary appeal book:

I’ve considered the matter of these two incidents, which I suspect are related although not orchestrated. It can be properly dealt with by a strong instruction now and again in my final instructions, and so I think I can preserve the fairness of the trial by doing that, and then a mistrial trial was not necessary to preserve the fairness of the hearing.

[3] Although the trial judge offered to allow the accused to re-elect judge alone before him with the consent of the Crown, which was refused, we do not view that offer as in any way undermining his conclusion that the trial was fair with the strong instruction he gave to the jury. We agree with his conclusion.

[4] The appeal against conviction is dismissed. The appellant abandons his sentence appeal as he is scheduled to be released tomorrow. The appeal against sentence is dismissed as abandoned.