Ontario Criminal


Evidence about guns had significant potential probative value

Appeal by accused from his conviction for first degree murder. Crown alleged that accused and partner executed deceased because he stole their drugs. It had strong circumstantial case against accused. Crown also had evidence of man. Informant claimed that accused confessed to him when they met in jail. Informant was jailhouse informant with established history of dishonesty and clear motive to lie. Trial judge provided lengthy and forceful caution about his evidence. Accused claimed that judge should have excluded evidence that police seized two loaded handguns from accused, neither of which was connected to this murder. If that evidence was admissible jury should have been told that it could not confirm informant’s evidence. Appeal dismissed. Evidence about guns was admissible. Accused’s statement about guns could not be viewed in isolation. It was one of several statements that accused allegedly made to informant about his knowledge of weapons used in murder. Those statements could support inference that accused knew which weapons were not used in murder because he was involved in it. Evidence about guns had significant potential probative value. Judge was alive to potential prejudice of this evidence and he chose to admit it and to give strong limiting instruction. He acted within his discretion when he determined that potential prejudice could be adequately addressed by appropriate limiting instruction. Judge, therefore, did not err in admitting evidence. Judge did not misdirect jury on potential confirmatory value of evidence about guns. This evidence, which was independent of informant’s testimony, did not implicate accused but it was capable of confirming credibility of informant’s testimony on relevant matter and it increased jury’s confidence in reliability of informant’s evidence. Judge did not err in including evidence within category of potentially confirmatory evidence.

R. v. McFarlane (May 11, 2012, Ont. C.A., Doherty, Simmons and LaForme JJ.A., File No. C49922) 102 W.C.B. (2d) 542 (8 pp.).

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