R. v. Ostrowski, [1990] 2 S.C.R. 82

Stanley Frank Ostrowski Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. ostrowski

File No.: 21407.

1990: June 20.

Present: La Forest, L'Heureux‑Dubé, Gonthier, Cory and McLachlin JJ.

on appeal from the court of appeal for manitoba

Criminal law ‑‑ Charge to the jury ‑‑ Warning adequate with respect to testimony of unsavoury witnesses ‑‑ Theory of defence adequately set forth ‑‑ Request of jury for transcripts of evidence properly dealt with in the circumstances.

Cases Cited

Referred to: Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811.

APPEAL from a judgment of the Manitoba Court of Appeal (1989), 1989 CanLII 7367 (MB CA), 57 Man. R. (2d) 255, dismissing an appeal from conviction by Darichuk J. sitting with jury (1987), 1987 CanLII 6979 (MB QB), 48 Man. R. (2d) 297. Appeal dismissed.

Jeff Gindin, for the appellant.

Richard A. Saull and Sid Lerner, for the respondent.

//La Forest J.//

The judgment of the Court was delivered orally by

La Forest J. -- The judgment of the Court will be delivered by Justice Cory.

//Cory J.//

Cory J. -- We are all of the view that this appeal as of right should be dismissed.

The case lasted for seven weeks, the charge for two days. The trial judge in his directions to the jury carefully and fairly reviewed the evidence of all the witnesses, including their cross-examinations and the contradictions that were made arising from the cross-examinations.

The trial judge did warn the jury of the unsavoury character of some of the witnesses. He said that their testimony was suspect and that they had reasons to lie. His instructions pertaining to the unsavoury witnesses were sufficient to comply with the requirements set forth in Vetrovec.

As well, we are satisfied that the trial judge adequately set forth the theory of the defence.

Nor did the trial judge err in his response to the jury's request for the transcripts of the evidence of the seven witnesses. The request and response must be looked at in context. It is significant that the charge was completed at 12:15 p.m. When the jury retired they were told by the trial judge not to commence their deliberations until advised by the sheriff officer; that is to say, when the trial judge had completed his discussions with counsel pertaining to the charge.

The question was posted shortly after 2 p.m. The jury asked for a transcript of all the witnesses and particulary of seven named witnesses, five of whom gave evidence relating to Ostrowski. It would be speculative to say that the jury had even commenced their deliberations by this time or had formed a precise reason for the request.

Further, the trial judge was careful not to close the door to this request. He suggested that they begin their deliberations based on their collective recollection of the evidence. However, he specifically invited the jury to come back if after they had commenced their deliberations they needed further assistance in this regard. He indicated that at that time he would read from his notes pertaining to the witnesses or if necessary obtain the transcripts. No objection to this response was taken by the experienced counsel appearing for the appellant. No further request was made by the jury for the transcripts. The jury deliberated until shortly in the afternoon the following day at which time they delivered their verdict. In those circumstances, it cannot be said that any error was made by the trial judge.

In the result, the appeal is dismissed.

Judgment accordingly.

Solicitors for the appellant: Smordin, Gindin, Soronow, Ludwig, Winnipeg.

Solicitor for the respondent: The Attorney General of Manitoba, Winnipeg.