




CITATION:
R. v. Blair, 2011
          ONCA 513



DATE:20110711



DOCKET: C50477



COURT OF APPEAL FOR ONTARIO



Rosenberg, Cronk and Watt JJ.A.



BETWEEN



Her Majesty The Queen



Respondent



and



Andre Blair



Appellant



Mark C. Halfyard, for the appellant



Jennifer Woollcombe, for the respondent



Heard and released orally: June 27, 2011



On appeal from the conviction entered by Justice Ian
          Nordheimer of the Superior Court of Justice, sitting with a jury, dated June
          23, 2008.



ENDORSEMENT



[1]

The first ground of appeal concerns the manner in which
    Mr. Clark gave evidence. It is apparent and was conceded by counsel that
    experienced defence counsel chose not to seek a mistrial but, rather, sought to
    make use of the manner in which Mr. Clark gave evidence to undermine his assertion
    that he lied to the police out of fear. This was a reasonable tactical decision
    and defence counsel made it clear in his jury address how the manner in which
    the witness gave evidence could be used.

[2]

However, it was important that the jury understand that
    Mr. Clarks gratuitous personal opinions could not be used as evidence. The
    trial judge did make this clear in his charge to the jury in virtually the identical
    terms suggested by defence counsel. The appellant now submits that this
    direction would have led the jury to disregard the manner in which Mr. Clark
    gave evidence in assessing his credibility.

[3]

We do not agree. The jury was told that they could use
    the manner in which witnesses gave evidence in evaluating credibility. As a
    matter of common sense, the jury would have understood that this instruction
    would especially apply to Mr. Clark. We are satisfied that the trial judges
    instructions on this issue were correct.

[4]

The second ground of appeal concerns a single question
    asked by Crown counsel in re-examination of the appellants uncle. We are
    satisfied that this was a proper question given defence counsels extensive
    cross-examination of the witness about the purpose of the Windsor trip. In any
    event, even if the question was improper, no substantial wrong or miscarriage of
    justice was occasioned. The question merely pointed out the notorious and
    obvious fact that Windsor is a border city. The defence was not caught by
    surprise by the question. As we have said, counsel had extensively cross-examined
    the uncle on the purpose of the trip in the obvious effort to blunt the
    possible prejudicial effect of the trip to Windsor shortly after the killing.

[5]

Finally, we note that there was no objection to the
    question and the trial judge refused Crown counsels request to give a post
    offence conduct instruction based on the evidence of the Windsor trip.

[6]

We would not give effect to this ground of appeal.

[7]

Accordingly, the appeal must be dismissed.

Signed:           M Rosenberg J.A.

E.
    A. Cronk J.A.

David
    Watt J.A."


