Case information

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Criminal law - Evidence - Hearsay evidence - Trial judge’s instructions to jury - Whether the majority of the Court of Appeal for Ontario erred in holding that this was not an appropriate case in which to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code in that the error did not result in a substantial wrong or miscarriage of justice - Whether the majority of the Court of Appeal for Ontario consequently erred in allowing the appeal and staying the proceedings.

The Respondent, Duc Van, and the victim, Jack Kong, were acquainted through their attendance at casinos and mah-jong gaming houses. On December 20, 2000, the Respondent and Kong went to Casino Niagara together in the Respondent’s van. They returned early on the morning of December 21. Sometime later that day, Kong was stabbed in his apartment and robbed of a substantial quantity of cash. Kong was initially unable to communicate effectively with the police, who initially suspected that the crime might have involved the collection of a loanshark debt associated with Kong’s illegal gambling activities. However, Kong subsequently identified the Respondent as his assailant. The Respondent testified and admitted that he had gone to the casino with Kong and that on the day of the attack, he had gone to the Respondent’s apartment to deliver some food, but he denied any involvement in the crime. In his defence, the Respondent relied on the loanshark theory that the police had rejected following Kong’s identification of the Respondent. The Respondent also introduced evidence as to his whereabouts on December 21 that contradicted certain aspects of Kong’s evidence as to the events that transpired on the day of the crime.

The Respondent was convicted of attempted murder, robbery and forcible confinement. Two earlier trials had resulted in mistrials due to hung juries. On appeal, the majority of the Court of Appeal allowed the appeal, set aside the conviction and entered a stay of proceedings. Winkler C.J.O., dissenting, agreed that the trial judge committed an error of law in failing to caution the jury with respect to the limited use to be made of the narrative, hearsay evidence of the investigating officer, but was of the view that this would be an appropriate case for the application of s. 686(1)(b)(iii) of the Criminal Code and would have dismissed the appeal.