R. v. Reekers

R. v. Reekers Collection Decisions of the Court of Appeal Date 1999-09-22 Docket numbers C28669 Judges Brooke, John Watson; Finlayson, George Duncan; Rosenberg, Marc Subject Criminal Decision Content DATE: 19990922 DOCKET: C28669 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. ARNOLDUS JERGEN REEKERS BEFORE: BROOKE, FINLAYSON and ROSENBERG JJ.A. COUNSEL: Michelle Fuerst, for the appellant Tina Yuen, for the respondent HEARD: August 20, 1999 On appeal from his conviction by Mr. Justice K. Ouellette, sitting with a jury, on October 25, 1996 ENDORSEMENT [1] In our opinion, it would have been preferable if the trial judge had directed the jury more clearly in accordance with the decision of the Supreme Court of Canada in R. v. W. (R.) (1992), 74 C.C.C. (3d) 134 which explains some of the statements made by Wilson J. in R. v. B. (G.) (1990), 56 C.C.C. (3d) 200 and which were tracked by the trial judge in his charge. Nonetheless, after consideration of all the directions concerning the assessment of the complainant's credibility, we are satisfied that the appellant was not prejudiced. We note in this regard that there was no objection to the charge. [2] With respect to the impugned re-examination of the complainant and cross-examination of the accused by Crown counsel, we are satisfied that no prejudice was occasioned. Objection was taken to only two questions. Assuming the questions were improper, they did not occasion any miscarriage of justice. [3] We see no prejudice to the appellant in the directions concerning the appellant's prior testimony. The prior testimony related to a peripheral matter and there is no possibility that the jury would have used that evidence for any purpose other than for credibility. [4] The charge to the jury with respect to reasonable doubt was in accordance with the standard charge used in this province prior to the decision of the Supreme Court of Canada in R. v. Lifchus (1997), 118 C.C.C. (3d) 1. In our view the directions were sufficient to adequately convey the meaning of reasonable doubt to the jury. There was no reversible error. [5] Similarly, the slight deviation from the suggested charge in R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 did not constitute reversible error. As Cory J. said at p. 409: ... [T]he failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof to apply. [6] Accordingly, the appeal from conviction is dismissed. [7] With respect to sentence, the appellant has served the custodial portion of the sentence and the only issue on the appeal is whether the term of probation, including the community service order, was excessive. In our view, having regard to the appellant's record and that he was on probation at the time this offence was committed, we think the sentence was appropriate. [8] Accordingly, while leave to appeal sentence is granted, the appeal from sentence is dismissed.