Jury charge prompts new trial CHRISTOPHER GULY A recent Court of Appeal for Ontario decision ordering a new trial after the lower-court judge failed to properly instruct the jury on the use of bad-character evi- dence illustrates how “errors can be compounded either by inaction or oversight” during the fluid pro- ceedings in a courtroom, accord- ing to the appellant’s counsel. Ottawa criminal defence lawyer Michael Crystal, who represented the accused on appeal, said that R. v. Precup [2013] O.J. No. 2836 “shows how the introduc- tion of a line of questioning with- out proper legal context through mid-trial instruction” can lead to serious problems. In a hit-and-run five years ago, Vlad Nicolae Precup struck and killed a 38-year-old homeless man in Ottawa. He was con- victed in 2011 of dangerous driv- ing causing death and failing to remain at the scene of an acci- dent that resulted in death. Pre- cup was sentenced to two years less one day imprisonment, plus three years’ probation; he was also prohibited from driving for three years. At appeal, Crystal argued that the trial judge, Justice Roydon Kealey, erred in his treatment of evidence introduced by the Crown on cross-examination of a defence psychiatrist, who testi- fied that Precup had suffered from chronic, paranoid schizo- phrenia since 1996, but had no independent anger-manage- ment problems. The Crown challenged the latter assertion by referring to examples found in the appellant’s medical rec- ords that indicated Precup is “volatile” and has a “hair-trig- ger” temper involving prior inci- dents of physical altercations with several people. However, the three-judge appeal panel agreed with Crystal that Justice Kealey’s jury charge was “deficient” by failing to both caution jurors against using bad-character evidence for pro- pensity reasoning and to identify the prior incidents cited in Pre- cup’s medical records “as hear- say, which could not be relied upon for the truth of its con- tents,” wrote Justice Eleanore Cronk in the June 19 ruling. The trial judge also did not inform the jury that the Crown used the prior incidents to demonstrate the psychiatrist’s knowledge of the appellant and his review of the medical records were incom- plete, noted Ontario’s highest court. As a result, Justice Kea- ley’s “non-directions [were] fatal to the jury’s verdicts.” The appeal court recognized that “in the absence of a limiting instruction,” a jury might not understand the permissible use of information, and “might place evidential value” on the prior incidents that “called out for a clear warning to the jury” regarding any use of the bad- character evidence. Justice Cronk referred to the Supreme Court of Canada’s lead- ing decision on similar-fact evi- dence, R. v. Handy [2002] S.C.J. No. 57, in which the high court said there was a “poison- ous nature” to propensity evi- dence that required “a high awareness of its potentially prejudicial effect.” But former Crown prosecutor Michael Slater, who serves on the editorial board of British Colum- bia’s Continuing Legal Education Society book, Civil Jury Instructions , said that it’s “kind of a legal fiction” to assume that jurors will be able to sift through evidence and instructions from the bench, and not assume they will arrive at decisions that might not have even been presented as evidence during a trial. “Telling a jury to forget stuff is like saying ignore the elephant next to you in the room,” said Slater, who practises civil litigation at Slater Vecchio in Vancouver. “If a guy is on trial for shoplifting and he has five prior convictions, but the jury is told it can only use that evidence to determine whether or not he’s telling the truth about the incident — and not because he did it five times before and therefore must be a shoplifter now — is it possible for the jury to determine whether the defendant committed the crime ver- sus his propensity to do so given his past record?” In the lower court, Justice Kealey twice acknowledged to Precup’s defence coun- sel, Paolo Giancaterino that prior inci- dents raised were “not evidence,” yet in his jury charge did not mention the impropriety of using that information “as evidence or for the truth of the facts,” as Justice Cronk highlighted in the Court of Appeal ruling. “A mid-trial instruction would have alerted the jury to the proper use of the evidence,” which could have been repeated in the charge, she wrote, adding that midway guidance “might also have alerted the Crown to be more circumspect in its closing jury address” rather than invite the jury to con- sider the prior incidents as similar facts presented at trial. Since the matter is before the courts, with Precup set to appear in Superior Court in Ottawa on July 26, “it would be inappropri- ate to comment” on the case, said Ontario Ministry of the Attorney General spokes- man Brendan Crawley via e-mail.Continued from page 3 tions, said that it’s “kind of a legal fiction” to assume that jurors will be able to sift through evidence and instructions from the bench, and not assume they will arrive at decisions that might not have even been presented as evidence during a trial. “Telling a jury to forget stuff is like saying ignore the elephant next to you in the room,” said Slater, who practises civil litigation at Slater Vecchio in Vancouver. “If a guy is on trial for shoplifting and he has five prior convictions, but the jury is told it can only use that evidence to determine whether or not he’s telling the truth about the incident — and not because he did it five times before and therefore must be a shoplifter now — is it possible for the jury to determine whether the defendant committed the crime ver- sus his propensity to do so given his past record?” In the lower court, Justice Kealey twice acknowledged to Precup’s defence coun- sel, Paolo Giancaterino that prior inci- dents raised were “not evidence,” yet in his jury charge did not mention the impropriety of using that information “as evidence or for the truth of the facts,” as Justice Cronk highlighted in the Court of Appeal ruling. “A mid-trial instruction would have alerted the jury to the proper use of the evidence,” which could have been repeated in the charge, she wrote, adding that midway guidance “might also have alerted the Crown to be more circumspect in its closing jury address” rather than invite the jury to con- sider the prior incidents as similar facts presented at trial. Since the matter is before the courts, with Precup set to appear in Superior Court in Ottawa on July 26, “it would be inappropri- ate to comment” on the case, said Ontario Ministry of the Attorney General spokes- man Brendan Crawley via e-mail.
Posted on: Fri, 12 Jul 2013 15:43:33 +0000
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