R. v. McIntosh
The Court allowed the appeal and ordered a new trial because three errors together rendered the trial unfair: exclusion of a videotape without a proper probative assessment, a Lifchus‑noncompliant reasonable doubt charge that omitted absence of evidence in a circumstantial case, and admission of prejudicial expert...
Source-derived case information.
- Citation
- C40151
- Parties
- Appellant: Marvin McIntosh; Respondent: Her Majesty the Queen
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 30 January 2004
- Procedural Posture
- Criminal / Appeal From Conviction and Sentence (court of Appeal)
- Outcome
- Appeal allowed; conviction set aside; new trial ordered.
- Legal Topics
- Admissibility of Evidence, Reasonable Doubt Direction, Expert Evidence, Circumstantial Evidence, Trial Fairness, New Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marvin McIntosh
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Criminal / Appeal From Conviction and Sentence (court of Appeal)
Legal Issues
- 1 Whether videotape evidence was wrongly excluded without a proper basis for probative value
- 2 Whether the trial judge's charge on reasonable doubt complied with R. v. Lifchus by referencing absence of evidence in a circumstantial case
- 3 Whether expert evidence that outlined adverse social consequences of crack cocaine use was improperly admitted without a limiting instruction and was prejudicial
Ratio Decidendi
The Court allowed the appeal and ordered a new trial because three errors together rendered the trial unfair: exclusion of a videotape without a proper probative assessment, a Lifchus‑noncompliant reasonable doubt charge that omitted absence of evidence in a circumstantial case, and admission of prejudicial expert evidence about social consequences without a limiting instruction.
Court Disposition
Appeal allowed; conviction set aside; new trial ordered.
Orders
- Appeal allowed
- Conviction set aside
Full Case Text
Judgment text and source record
1 paragraphs
R. v. McIntosh Collection Decisions of the Court of Appeal Date 2004-01-30 Docket numbers C40151 Judges Abella, Rosalie Silberman; Goudge, Stephen Thomas; Gillese, Eileen E. Subject Criminal Decision Content DATE: 20040130 DOCKET: C40151 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) - and - MARVIN McINTOSH (Appellant) BEFORE: ABELLA, GOUDGE and GILLESE JJ.A. COUNSEL: Joseph Wilkinson for the appellant Surinder Aujla for the respondent HEARD: January 26, 2004 RELEASED ORALLY: January 26, 2004 On appeal from the conviction of Justice N. Borkovich of the Superior court of Justice dated February 5, 2003 and the sentence imposed by Borkovich J. dated May 16, 2003. ENDORSEMENT [1] In our view, there were three errors which, together, rendered the trial unfair: 1) the videotape was excluded without the trial judge, who did not see it, having a proper basis for concluding it was not probative; 2) the charge on reasonable doubt does not comply with Lifchus in that the trial judge failed to mention the absence of evidence as a basis for reasonable doubt. In a circumstantial case such as this, that is an important omission; and 3) the admission of expert evidence that strayed into outlining the adverse social consequences of crack cocaine use for the City of Hamilton was prejudicial in the context of this case and required a limiting instruction. [2] Accordingly, the appeal is allowed, the conviction is set aside and a new trial ordered. Signed: "R.S. Abella J.A." "S.T. Goudge J.A." "E.E. Gillese J.A."