R. v. Arcangioli (G.) (1994), 69 O.A.C. 26 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Giuseppe Arcangioli (appellant) v. Her Majesty The Queen (respondent)
(23380)
Indexed As: R. v. Arcangioli (G.)
Supreme Court of Canada
Lamer, C.J.C., Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
January 27, 1994.
Summary:
The accused was convicted of aggravated assault following a jury trial and was sentenced to four years’ imprisonment. The accused appealed against conviction.
The Ontario Court of Appeal, Galligan, J.A., dissenting, dismissed the appeal. The accused appealed.
The Supreme Court of Canada allowed the appeal and ordered a new trial.
Criminal Law – Topic 4393
Procedure – Jury charge – Failure of counsel to object – Effect of – The Supreme Court of Canada stated that “trial counsel’s failure to object to a jury charge is not determinative of the applicability of the Criminal Code’s ‘curative provision’, s. 618(1)(b)(iii)” – See paragraph 38.
Criminal Law – Topic 5035
Appeals – Indictable offences – Dismissal of appeal if error resulted in no miscarriage of justice – General – [See
Criminal Law – Topic 4393
].
Criminal Law – Topic 5211
Evidence – Witnesses – Admissibility and relevancy – Flight of accused – An accused convicted of aggravated assault (stabbing) admitted common assault, but claimed a third party stabbed the victim – The accused fled the scene – The Supreme Court of Canada stated that it was not sufficient to instruct the jury that innocent men sometimes flee the crime scene – The trial judge should have directed the jury that the accused’s flight was equally consistent with common assault as with aggravated assault – Fleeing the scene was, accordingly, incapable of supporting an inference of consciousness of guilt respecting the aggravated assault charge – There was a danger that the jury could wrongly infer that the accused fled because he was guilty of stabbing the victim – See paragraph 49.
Criminal Law – Topic 5214.8
Evidence – Witnesses – Admissibility and relevancy – That crime committed by another – An accused charged with aggravated assault (stabbing) claimed that a third person did it – The accused adduced evidence (criminal record) that the third person had a propensity for violence and was connected with another stabbing one-half hour before the present stabbing – The Supreme Court of Canada stated that the trial judge should have instructed the jury that they could consider the evidence in support of the accused’s claim that the third person, not the accused, committed the stabbing – See paragraph 48.
Criminal Law – Topic 5316.1
Evidence – Witnesses – Inferences – Of guilt – From fleeing crime scene – [See
Criminal Law – Topic 5211
].
Criminal Law – Topic 5419
Evidence – Witnesses – Criminal record – [See
Criminal Law – Topic 5214.8
].
Criminal Law – Topic 5419.1
Evidence – Witnesses – Character evidence respecting – The Supreme Court of Canada stated that the Crown was precluded from adducing evidence of the accused’s character unless the accused has put character in issue or the evidence is otherwise relevant (e.g. similar acts) – The evidence “is excluded on the ground that its prejudicial effect is apt to outweigh its probative value; the danger exists that a jury may convict on the basis of the accused’s reputation rather than on the basis of the evidence” – The court stated that the rule did not apply to character evidence respecting a third party witness – As long as it was relevant and not otherwise excluded by a rule of evidence, it was admissible – “Courts are reluctant to exclude evidence offered by an accused in his defence” – See paragraphs 25 to 31.
Criminal Law – Topic 5449
Evidence – Witnesses – Testimony respecting the accused – Character of accused – [See
Criminal Law – Topic 5419.1
].
Cases Noticed:
R. v. Scopelliti (1981), 63 C.C.C.(2d) 481 (Ont. C.A.), refd to. [para. 27].
R. v. McMillan (1975), 23 C.C.C.(2d) 160 (C.A.), affd. [1977] 2 S.C.R. 824; 15 N.R. 20, refd to. [para. 27].
R. v. Williams (1985), 7 O.A.C. 201; 18 C.C.C.(3d) 356 (C.A.), refd to. [para. 28].
R. v. Yaeck (1991), 50 O.A.C. 29; 68 C.C.C.(3d) 545 (C.A.), leave to appeal refused, [1992] 1 S.C.R. xii; 139 N.R. 240; 56 O.A.C. 160, refd to. [para. 29].
R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321, refd to. [para. 30].
R. v. Kendall and McKay (1987), 20 O.A.C. 134; 35 C.C.C.(3d) 105 (C.A.), refd to. [para. 31].
R. v. Squire, [1977] 2 S.C.R. 13; 10 N.R. 25, refd to. [para. 37].
MacAskill v. R., [1931] S.C.R. 330, refd to. [para. 37].
R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321; 59 C.C.C.(3d) 321, refd to. [para. 38].
R. v. Gudmondson (1933), 60 C.C.C. 332 (S.C.C.), refd to. [para. 40].
United States v. Myers (1977), 550 F.2d 1036 (5th Cir.), refd to. [para. 42].
Colpitts v. R., [1965] S.C.R. 739, refd to. [para. 46].
R. v. Wildman, [1984] 2 S.C.R. 311; 5 O.A.C. 241; 55 N.R. 27, refd to. [para. 46].
R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234; 5 C.R.(4th) 351; 64 C.C.C.(3d) 193, refd to. [para. 46].
R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189; 8 C.R.R.(2d) 274; [1992] 1 W.W.R. 289; 9 C.R.(4th) 1; 84 Alta. L.R.(2d) 1; 68 C.C.C.(3d) 308, refd to. [para. 46].
R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 46].
R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 46].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 24].
Authors and Works Noticed:
McCormick on Evidence (Revsd. Ed. 1972), p. 655 [para. 42].
McCormick on Evidence (4th Ed. 1992), vol. 1, p. 811 [para. 26]; vol. 2, p. 182 [para. 39].
Sopinka, J., Lederman, S.N., and Bryant, A.W., The Law of Evidence in Canada (1992), p. 454 [para. 26].
Wigmore on Evidence (3rd Ed. 1940), vol. 1, p. 573 [para. 27].
Counsel:
Clayton C. Ruby, for the appellant;
Jamie C. Klukach, for the respondent.
Solicitors of Record:
Ruby & Edwardh, Toronto, Ontario, for the appellant;
Attorney General for Ontario, Toronto, Ontario, for the respondent.
This appeal was heard on November 12, 1993, before Lamer, C.J.C., Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.
On January 27, 1994, Major, J., delivered the following judgment for the Supreme Court of Canada in both official languages.
