COURT FILE NO.: 5708/1998
DATE: 1999/07/27
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Donald Townsend
- - - Appellant
- and -
Her Majesty the Queen --- Respondent
Benjamin
Pritchard, for the Appellant,
Barrister
& Solicitor
642 Queen Street East
Sault Ste. Marie, ON
William S. Johnson, for the Respondent
Assistant Crown Attorney
Office of the Crown Attorney
445 Albert Street East
Sault Ste. Marie, ON
REASONS FOR JUDGMENT
Bolan.
J.
Page - 2-
[I] During the course of a lengthy trial in which the
Appellant was not represented by counsel, a voir dire was held to determine the
admissibility of similar fact evidence. Following a lengthy voir dire in which
six witnesses were called, {their evidence covers 187 pages of transcript} the
trial judge admitted the similar fact evidence which basically consisted of a
driving incident of a somewhat similar nature to the one at bar. The Crown
applied to have the evidence given on the voir dire apply to the trial without
the necessity of having to recall the witnesses to give the same evidence they
gave on the voir dire. The trial judge asked the appellant if he would consent
to this procedure. An exchange of questions and answers took place between the
Appellant and the trial judge {see transcript Vol. 2, pages 52-54}. It is clear
from their exchange that the Appellant did not consent to the Crown's
application; nevertheless the trial judge allowed the Crown's application to
apply the evidence given on the voir dire to the trial. .
[2] In my view this constitutes an error in law {See R vs. Gauthier, 27 C.C.C. (2nd)14} in which the Supreme Court of Canada held that the evidence heard at the voir dire cannot be used by the judge on the trial of the merits unless both the Crown and the Accused consent.
[3] In his assessment of the evidence, the trial judge
relied on the voir dire evidence to convict the Appellant. He specifically
alluded to the voir dire evidence when he said at page 241 of Volume two of the
transcript: “Mr. Broadbent's {a complainant who gave
evidence at trial} appraisal
of the situation and of Mr. Townsend {the Appellant} were not exaggerated given
prior conduct of photograph taking of Mr. Harrison and visitors to the property
as well as the driving incident involving Mrs. Brandt, another previous
neighbour, who was also involved in protracted
Page - 3 -
civil litigation with Mr. Townsend regarding the
right-of-way." This evidence of Harrison and Brandt was given on the voir
dire and it obviously impacted on the trial judge in arriving at his finding of
guilt.
[4] The Crown argues that
even if the
trial judge erred in law by admitting the voir dire evidence without the
Appellant's consent, there was no substantial wrong or miscarriage of justice
and the appeal be dismissed pursuant to Section 686 (I) (b) (iii) of the Code.
I cannot agree with this submission. The trial judge's reliance on the
inadmissible evidence satisfies me that there was a substantial wrong or
miscarriage of justice. In my view there was a reasonable possibility that the
verdict would have been different had the error at issue not been made. The
trial judge would have been required to charge himself in accordance with R vs.
D. W. (1991) 3 C.R. (4th) 302 and he may have come to a different conclusion. I
will accordingly quash the conviction.
[5] Defence counsel argues that rather than remit this case
for a new trial, I should enter an acquittal. An Appellate Court's power to
make such an order is found in Section 686 (8) of the code.
[6] This case has been a long and arduous one heard over
four days and involved 13 witnesses. The Complainants and the Appellant were
neighbours and had been embroiled for years over a right-of-way dispute. This
situation no loner exists. As noted by the trial judge in his reasons for
sentence, the complainants have since moved away and the parties no longer have
to deal with each other.
Page -4-
[7] In my view, it is in the best interests
for the administration to bring some finality to this dispute. I will
accordingly Order that a Stay of Proceedings be entered.
M. G. Bolan