R. v. Tanner

The Court -- The respondent, Steven Joseph Tanner, was convicted at trial of the second degree murder of Dan Watters. This verdict was subsequently overturned by a majority of the Ontario Court of Appeal (Labrosse J.A. dissenting) and a new trial was ordered: (1994), 19 O.R. (3d) 259. It is from this decision that the Crown appeals to this Court as of right.

In our view, the Crown's appeal should be allowed for the dissenting reasons of Labrosse J.A. at the Court of Appeal but we would add the following. With respect to evidence of the attack on McCurdy and the theft of a bicycle, this evidence was admitted for the limited purpose of tending to show the respondent's state of mind at the time that he killed Watters. It was not admitted nor used as evidence of flight tending to show consciousness of guilt. The question put in cross-examination and followed up in the address to the jury by Crown counsel, while improper, must be assessed in light of the trial judge's charge to the jury. In respect of both matters in issue in this appeal, the trial judge's charge was thorough, and adequately explained the limited use to which the evidence could be put. There was no objection to the charge in either respect. In view of the foregoing, no error of law occurred and we agree with Labrosse J.A. that the respondent's appeal to the Court of Appeal ought to have been dismissed.

Accordingly, this appeal is allowed, the judgment of the Court of Appeal is set aside and the conviction of the respondent is restored.