Court of Appeal for Ontario

CITATION: R. v. Murphy, 2016 ONCA 705

DATE: 20160927

DOCKET: C58016

Doherty, Pepall and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Murphy

Appellant

Timothy E. Breen, for the appellant

Nadia Thomas, for the respondent

Heard: September 22, 2016

On appeal from the conviction entered on December 5, 2012 by Justice E. Eva Frank of the Superior Court of Justice.

ENDORSEMENT

[1] At the outset of his trial on charges of attempted murder, aggravated assault and assault, the appellant applied for a ruling allowing him to cross-examine the victim of a stabbing on his propensity for violence. The victim had a criminal record with in excess of 50 convictions.

[2] Defence counsel advised the trial judge that he planned to put self-defence before the jury and that he expected that a third-party witness would be available to support the claim that the victim had instigated the confrontation.

[3] In our view, the trial judge was correct in ruling that at that stage in the proceeding, there was no evidentiary basis on which to permit cross-examination on propensity for violence. While the victim could be cross-examined on his criminal record, the right to cross-examine is not unlimited. Applying the rule in R. v. Scopelliti (1981), 1981 CanLII 1787 (ON CA), 63 C.C.C. (2d) 481 (Ont. C.A.), there must be “some other appreciable evidence of the [victim’s] aggression on the occasion in question” to ground cross-examination on propensity. In the absence of such evidence, the trial judge was correct to rule that the request to cross-examine on propensity was premature.

[4] We also note that the trial judge invited the appellant to renew his application if a basis to cross-examine on propensity arose later in the trial. However, for his own strategic reasons, the appellant chose not to do so.

[5] In any event, no prejudice ensued to the appellant. Ultimately details of the victim’s convictions and his propensity for violence were put to the jury.

[6] For these reasons, the appeal is dismissed. The appellant abandoned his sentence appeal.

“Doherty J.A.”

“S.E. Pepall J.A.”

“C.W. Hourigan J.A.”