R. v. Smith
The Court held that the trial judge’s strong and unequivocal mid‑trial instruction and final jury charge cured any prejudice from the inadvertent bad character evidence, that a mistrial was unnecessary, and therefore the conviction must be upheld.
Source-derived case information.
- Citation
- 2016 ONCA 469
- Parties
- Appellant: Dennis Smith; Respondent: Her Majesty the Queen
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 17 June 2016
- Procedural Posture
- Criminal / Appeal From Conviction and Sentence (court of Appeal)
- Outcome
- Appeal against conviction dismissed; appeal against sentence dismissed as abandoned.
- Legal Topics
- Bad Character Evidence, Mistrial, Mid‑trial Instructions, Jury Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dennis Smith
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Criminal / Appeal From Conviction and Sentence (court of Appeal)
Legal Issues
- 1 Whether inadvertent bad character evidence given by two witnesses prejudiced the jury and required a mistrial
- 2 Whether a mid‑trial instruction and the trial judge’s final charge cured any prejudice
Ratio Decidendi
The Court held that the trial judge’s strong and unequivocal mid‑trial instruction and final jury charge cured any prejudice from the inadvertent bad character evidence, that a mistrial was unnecessary, and therefore the conviction must be upheld.
Court Disposition
Appeal against conviction dismissed; appeal against sentence dismissed as abandoned.
Orders
- Conviction upheld; appeal dismissed
- Sentence appeal dismissed as abandoned
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Smith Collection Decisions of the Court of Appeal Date 2016-06-17 Neutral citation 2016 ONCA 469 Docket numbers C61646 Judges Feldman, Kathryn N.; Benotto, Mary Lou; Miller, Bradley Subject Criminal Decision Content 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.