Ontario Criminal


Evidence

IDENTITY OF ACCUSED


Jury could legitimately conclude on basis of all evidence that accused was killer

Accused was convicted of second-degree murder of elderly deceased who was severely beaten to death. Identity of killer was at issue with accused initially lying to police about being at deceased’s residence but was caught spending over $1,400 from her credit card. Accused argued trial judge erred in failing to caution against reasoning by propensity, in failing to give limiting instruction with respect to demeanour evidence and in inviting jury to rely upon accused’s callousness to find he was type of person to have committed this offence. Accused further argued trial judge further erred in refusing to give “no probative value” instruction on some of post offence conduct. Accused appealed. Appeal dismissed. In circumstances where identity of killer was in issue, trial judge was not required to tell jury that, because of repugnant nature of his conduct after killing, they could not infer that accused committed murder. Jury could legitimately conclude that accused’s use of deceased’s credit card after killing established that he had been in her apartment at time of killing in addition to fingerprint he left there in victim’s blood and in combination with all of evidence established that he was her killer. It was for jury to decide whether evidence of accused’s post-offence conduct was related to commission of offence charged rather than to something else and if any weight should be accorded to evidence in final determination of guilt or innocence.

R. v. Hamade (Nov. 20, 2015, Ont. C.A., MacPherson J.A., Tulloch J.A., and Pardu J.A., File No. CA C56253) 126 W.C.B. (2d) 569.

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