R. v. Lewis
The conviction was set aside because it was an error to leave the appellant's failure to call or report to police as evidence of consciousness of guilt in light of R. v. Turcotte; the error was not harmless and the proviso could not be applied, therefore a new trial was ordered.
Source-derived case information.
- Citation
- 2011 ONCA 402
- Parties
- Respondent: Her Majesty the Queen; Appellant: Derek Lewis
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 20 May 2011
- Procedural Posture
- Criminal / Appeal From Conviction to Court of Appeal; Judgment Ordering New Trial
- Outcome
- Appeal allowed; conviction set aside; new trial ordered.
- Legal Topics
- Consciousness of Guilt, Failure to Report, Jury Direction Error, Application of Proviso, Precedent (r. V. Turcotte)
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Her Majesty the Queen
Respondent
Derek Lewis
Appellant
Procedural Posture
Criminal / Appeal From Conviction to Court of Appeal; Judgment Ordering New Trial
Legal Issues
- 1 Whether it was error to instruct the jury that the appellant's failure to call or report to police was evidence of consciousness of guilt
- 2 Whether that instruction infringed the rule in R. v. Turcotte
- 3 Whether the appellate proviso could be applied to uphold the conviction despite the error
Ratio Decidendi
The conviction was set aside because it was an error to leave the appellant's failure to call or report to police as evidence of consciousness of guilt in light of R. v. Turcotte; the error was not harmless and the proviso could not be applied, therefore a new trial was ordered.
Court Disposition
Appeal allowed; conviction set aside; new trial ordered.
Orders
- Conviction set aside
- New trial ordered
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Lewis Collection Decisions of the Court of Appeal Date 2011-05-20 Neutral citation 2011 ONCA 402 Docket numbers C48384 Judges Rosenberg, Marc; Lang, Susan Elizabeth; Watt, David Subject Criminal Decision Content CITATION: R. v. Lewis, 2011 ONCA 402 DATE: 20110520 DOCKET: C48384 COURT OF APPEAL FOR ONTARIO Rosenberg, Lang and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Derek Lewis Appellant Michael Dineen, for the appellant Benita Wassenaar, for the respondent Heard: May 18, 2011 On appeal from the conviction entered by Justice Nancy Mossip of the Superior Court of Justice dated January 24, 2008. APPEAL BOOK ENDORSEMENT [1] In our view, this appeal must be allowed. It was an error to leave for the jury as consciousness of guilt that the appellant did not call the police or report to the police what had happened. Leaving aside whether on the facts of this case that evidence had any probative value, the direction infringed the holding in R. v. Turcotte, [2005] 2 S.C.R. 519 at paras. 51 and 56. This is not a proper case to apply the proviso. The Crown’s case was not overwhelming and the direction could have impacted on the fairness of the trial. [2] In fairness to the trial judge, we note that the evidence was led in chief from the appellant and no objection was taken to the charge to the jury. [3] Accordingly, the appeal is allowed and a new trial ordered.