



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Smith, 2016 ONCA 469

DATE: 20160613

DOCKET: C61646

Feldman, Benotto and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dennis Smith

Appellant

Dennis Smith, in person

Erika Chozik, duty counsel

Tracy Kozlowski, for the respondent

Heard: June 7, 2016

On appeal from the conviction entered on July 14, 2015
    and the sentence imposed on July 17, 2015 by Justice Trotter of the Superior Court
    of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his conviction on the basis that the bad
    character evidence that was inadvertently given by two witnesses prejudiced
    the jury and was not sufficiently corrected by the mid-trial instruction or the
    charge to the jury given by the trial judge on the issue. We do not agree.

[2]

The mid-trial instruction was strong and unequivocal, as was the
    charge.  Most importantly, the trial judge considered the issue of a mistrial
    but rejected it as unnecessary.  He stated at p. 20 of the supplementary appeal
    book:

Ive considered the matter of these two incidents, which I
    suspect are related although not orchestrated.  It can be properly dealt with
    by a strong instruction now and again in my final instructions, and so I think
    I can preserve the fairness of the trial by doing that, and then a mistrial
    trial was not necessary to preserve the fairness of the hearing.

[3]

Although the trial judge offered to allow the accused to re-elect judge
    alone before him with the consent of the Crown, which was refused, we do not
    view that offer as in any way undermining his conclusion that the trial was
    fair with the strong instruction he gave to the jury.  We agree with his
    conclusion.

[4]

The appeal against conviction is dismissed.  The appellant abandons his
    sentence appeal as he is scheduled to be released tomorrow.  The appeal against
    sentence is dismissed as abandoned.


