R. v. Kleinsteuber
The trial contained fundamental errors in the jury charge — failure to give a limiting instruction on prior consistent statements, use of an incorrect Lifchus charge, and improper restriction of the defence's alternative perpetrator theory — and those errors collectively undermined the fairness of the trial and...
Source-derived case information.
- Citation
- C36469
- Parties
- Respondent: HER MAJESTY THE QUEEN; Appellant: KENNETH KLEINSTEUBER (KLEINSTUEBER)
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 5 April 2004
- Procedural Posture
- Criminal / Appeal From Conviction and Sentence; New Trial Ordered
- Outcome
- Appeal allowed; new trial ordered. Court notes appellant has served his sentence and Crown should consider that fact in deciding whether to proceed.
- Legal Topics
- Jury Instructions, Prior Consistent Statements, Lifchus Charge (reasonable Doubt), Third Party/perpetrator Defence, Credibility, New Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
HER MAJESTY THE QUEEN
Respondent
KENNETH KLEINSTEUBER (KLEINSTUEBER)
Appellant
Procedural Posture
Criminal / Appeal From Conviction and Sentence; New Trial Ordered
Legal Issues
- 1 Whether trial judge erred by failing to instruct jury on prior consistent statements and limiting their use
- 2 Whether the wrong version of the Lifchus reasonable doubt charge was given
- 3 Whether the trial judge improperly limited the defence theory regarding a different potential perpetrator
Ratio Decidendi
The trial contained fundamental errors in the jury charge — failure to give a limiting instruction on prior consistent statements, use of an incorrect Lifchus charge, and improper restriction of the defence's alternative perpetrator theory — and those errors collectively undermined the fairness of the trial and required ordering a new trial.
Court Disposition
Appeal allowed; new trial ordered. Court notes appellant has served his sentence and Crown should consider that fact in deciding whether to proceed.
Orders
- Appeal allowed and a new trial ordered.
- Crown to carefully consider that the appellant has served his sentence in deciding whether to proceed with a new trial.
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Kleinsteuber Collection Decisions of the Court of Appeal Date 2004-04-05 Docket numbers C36469 Judges MacPherson, James C.; Sharpe, Robert J.; Lang, Susan Elizabeth Subject Criminal Decision Content DATE: 20040405 DOCKET: C36469 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) - and - KENNETH KLEINSTEUBER (KLEINSTUEBER) (Appellant) BEFORE: MacPHERSON and SHARPE JJ.A. and LANG J. (ad hoc) COUNSEL: Keith E. Wright for the appellant Nadia Thomas for the respondent HEARD: March 31, 2004 RELEASED ORALLY: March 31, 2004 On appeal from the conviction entered by Justice Helen King MacLeod of the Superior Court of Justice, sitting with a jury, dated June 4, 1999 and the sentence imposed by Justice MacLeod dated July 29, 1999. ENDORSEMENT [1] Unfortunately, the charge to the jury contained several errors in this case, some of which are serious. [2] The most serious error was the absence of an instruction to the jury on the numerous prior consistent statements the complainant made to various people before she went to the police. A careful limiting instruction was required, (see R. v. R. (A.F.) (2001), 156 C.C.C. (3d) 336 (Ont. C.A.)), especially since the appellant testified in this case and, therefore, his credibility and that of the complainant were crucial to its resolution. This case plainly does not present the unique features of R. v. Demetrius (2003), 179 C.C.C. (3d) 26 (Ont. C.A.), where a limiting instruction was not required. [3] Moreover, not only did the trial judge fail to give an appropriate instruction on this issue, in addition, the jury might well have taken from her charge that the earlier complaints could be improperly used to bolster the complainant's credibility. [4] In addition, the trial judge used the wrong version of the Lifchus charge a full sixteen months after it had been corrected by the Supreme Court of Canada. [5] The trial judge also improperly limited the defence attempt to advance a theory based on a different potential perpetrator. [6] The appeal is allowed and a new trial is ordered. However, we note that the appellant has served his sentence. This is an important factor which we trust the Crown will carefully consider in determining whether to proceed with a new trial. "J. C. MacPherson J.A." "Robert J. Sharpe J.A." "S. E. Lang J.A."