R. v. Yager Jr.

R. v. Yager Jr. Collection Decisions of the Court of Appeal Date 1998-10-02 Docket numbers C26740 Judges Doherty, David H.; Laskin, John Ivan; Goudge, Stephen Thomas Subject Criminal Decision Content DATE: 19981002 DOCKET: C26740 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. JOSEPH JOHN YAGER JR. (Appellant) BEFORE: DOHERTY, LASKIN and GOUDGE JJ.A. COUNSEL: Joseph John Yager Jr., in person Ken Campbell for the respondent HEARD: September 22, 1998 ENDORSEMENT [1] The appellant was convicted of second degree murder. He testified that he was not the killer. [2] The appellant led expert evidence suggesting that certain blood stains found on the appellant were inconsistent with the appellant having inflicted the fatal blows. The appellant also relied on that expert evidence to support his position that had he been the killer there would have been significantly more blood on his clothing than in fact was found. [3] The Crown had led "blood splatter" evidence as part of its case. That evidence was arguably inconsistent with the evidence of the defence expert. [4] The expert evidence was relevant to a crucial issue in the case, the identity of the killer. The defence expert evidence was potentially exculpatory and, apart from the appellant's own evidence, was perhaps the most significant evidence in his favour. The substance of that evidence was not such that its significance on the issue of identity would have been obvious to the jury. [5] There was no mention of expert evidence in the trial judge's charge. The jury was not told how to assess expert evidence, the relevance of the expert evidence to the issue of identity was not explained, and the substance of the expert evidence was not reviewed with the jury. [6] The failure to provide any instruction to the jury in respect of the expert evidence constituted reversible non- direction. The appeal must be allowed. [7] This case was heard as a prisoner appeal at one of the Kingston sittings of the court. The court was greatly assisted by written submissions prepared on the appellant's behalf by students from the Queen's Law School Correctional Law Program. The appellant also had the assistance during argument of Mr. Richard Litkowski. Mr. Litkowski and a number of other counsel have volunteered their services at sittings of this court in Kingston. They serve as duty counsel and provide whatever assistance they can to the prisoners in the presentation of their appeals. This program was recently established by the court under the direction of Justice Rosenberg. Mr. Litkowski's submissions, the written submissions provided by the Correctional Law Program and the Crown's submissions enabled the court to address the merits of this appeal on the limited record available to it. This case clearly proves the value of both the Correctional Law Program and the duty counsel system. [8] The appeal is allowed, the conviction quashed and a new trial ordered on the charge of second degree murder.