07/26/2013
PRECUP WINS 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 evidence
illustrates how “errors can
be compounded either by inaction
or oversight” during the fluid proceedings
in a courtroom, according
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 introduction
of a line of questioning without
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 convicted
in 2011 of dangerous driving
causing death and failing to
remain at the scene of an accident
that resulted in death. Precup
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 testified
that Precup had suffered
from chronic, paranoid schizophrenia
since 1996, but had no
independent anger-management
problems. The Crown
challenged the latter assertion
by referring to examples found
in the appellant’s medical records
that indicated Precup is
“volatile” and has a “hair-trigger”
temper involving prior incidents
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 propensity
reasoning and to identify
the prior incidents cited in Precup’s
medical records “as hearsay,
which could not be relied
upon for the truth of its contents,”
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 incomplete,
noted Ontario’s highest
court. As a result, Justice Kealey’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 badcharacter
evidence.
Justice Cronk referred to the
Supreme Court of Canada’s leading
decision on similar-fact evidence,
R. v. Handy [2002]
S.C.J. No. 57, in which the high
court said there was a “poisonous
nature” to propensity evidence
that required “a high
awareness of its potentially
prejudicial effect.”
But former Crown prosecutor
Michael Slater, who serves on the
editorial board of British Columbia’s
Continuing Legal Education
Society book, Civil Jury Instruc-
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 versus
his propensity to do so given his past
record?”
In the lower court, Justice Kealey twice
acknowledged to Precup’s defence counsel,
Paolo Giancaterino that prior incidents
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 consider
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 inappropriate
to comment” on the case, said Ontario
Ministry of the Attorney General spokesman
Brendan Crawley via e-mail.
More: Mid-trial guidance expected
Continued from page 3
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