R. v. Paradis

R. v. Paradis Collection Decisions of the Court of Appeal Date 1999-04-08 Docket numbers C26230 Judges Rosenberg, Marc; Moldaver, Michael James; Feldman, Kathryn N. Subject Criminal Decision Content DATE: 19990408 DOCKET: C26230 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. JOSEPH ALLEN PARADIS (Appellant) BEFORE: ROSENBERG, MOLDAVER and FELDMAN JJ.A. COUNSEL: Carl Mandrish, for the appellant Riun Shandler, for the respondent HEARD: April 1, 1999 On appeal from the judgment of Stong J. with a jury, dated July 12, 1996. ENDORSEMENT [1] In our view, the charge to the jury concerning consciousness of guilt is fatal to this conviction. At p. 410 of the transcript, the trial judge said the following in his charge to the jury: You must remember that because you reject the accused's explanation does not mean that he is guilty. When the explanation, however, turns out to be a deliberate fabrication this may be evidence of consciousness of guilt. Where the accused has lied and his explanation is found to be deliberately false you may take the accused's evidence as an item of evidence tending to prove the accused's guilt. [2] Mr. Shandler fairly concedes that this is an error. The instruction undermined the earlier, quite proper, directions as to the application of R. v. W. (D.), [1991] 1 S.C.R. 742. The fact that the appellant may have been found to have lied in his testimony was not capable of constituting evidence of consciousness of guilt: see R. v. Coutts and Middleton (1998), 40 O.R. (3d) 198 (C.A.). [3] Inasmuch as this instruction impinged on the burden and onus of proof, this is not a proper case to apply the proviso in s. 686(1)(b)(iii) of the Criminal Code. In these circumstances, we need not decide whether the cross-examination by Crown counsel about the non-reporting of employment income was proper. However, we agree with counsel for the appellant that before any cross- examination such as that is permitted on the new trial, the trial judge will have to consider whether the admission of such evidence meets the test for admissibility of disreputable acts as explained by the Supreme Court of Canada for example in R. v. F.F.B, [1998] 1 S.C.R. 697. [4] Finally, we would make this comment for the assistance of the trial judge. The charge concerning the elements of fraud was overly complex given the issues raised, and much of that instruction could have been left out of the charge to the jury. [5] Accordingly, the appeal is allowed, the conviction quashed, and a new trial ordered.