Lawrence Melnichuk Appellant
Her Majesty The Queen Respondent
Indexed as: R. v. Melnichuk
File No.: 25071.
1997: March 17; 1997: March 20.
Present: Lamer C.J. and L’Heureux‑Dubé, Sopinka, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Trial ‑‑ Procedure ‑‑ Reply evidence ‑‑ Whether Crown erroneously permitted to call reply evidence in breach of collateral fact rule ‑‑ If so, whether no substantial wrong or miscarriage of justice occasioned by reply evidence ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(b)(iii).
Criminal law ‑‑ Trial ‑‑ Fraud ‑‑ Presentation of Crown case ‑‑ Reply evidence admitted to rebut accused’s allegation that mortgage was to be second mortgage ‑‑ Whether Crown improperly splitting its case.
The accused was tried for fraud with respect to a mortgage on property he owned. He had allegedly drafted a mortgage document which appeared to have been altered. This document, which was to have been registered as a first mortgage, was never registered. The mortgagee under this document obtained judgment against the accused but was unable to collect on the judgment. A complaint was filed with the police who conducted an investigation and laid charges of fraud. At trial, the Crown was permitted to call reply evidence concerning the conduct of the accused in seeking a later mortgage on the same property. The accused testified that he assumed the mortgagee under the initial mortgage had registered the mortgage, but the reply evidence suggested that the later mortgage was treated by all concerned to be a first mortgage. The Crown was also permitted to call reply evidence concerning the question of whether the accused had ever held himself out as a “chartered accountant”. The accused was convicted by a judge alone and a majority of the Court of Appeal dismissed the appeal. At issue here was whether the Crown had improperly split its case and whether the Crown was permitted to call evidence in breach of the collateral fact rule.
Held (L’Heureux‑Dubé J. dissenting): The appeal should be allowed.
Per Lamer C.J. and Sopinka and Major JJ.: The Crown was erroneously permitted to call reply evidence and a new trial was accordingly necessary. It was not necessary to deal with whether the Crown had improperly split its case.
Per Iacobucci J.: Not only did the Crown breach the collateral fact rule by calling reply evidence going to credibility, as found by Sopinka J., it also improperly split its case for the reasons given by the dissenting judge in the Court of Appeal.
Per L’Heureux‑Dubé J. (dissenting): The trial judge made no error, and even if he had, there was no substantial wrong or miscarriage of justice occasioned by the reply evidence so that the curative provision of the Criminal Code would apply.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(b)(iii).
APPEAL from a judgment of the Ontario Court of Appeal (1996), 104 C.C.C. (3d) 160, 87 O.A.C. 336, dismissing an appeal from conviction by Hogg J. Appeal allowed, L’Heureux‑Dubé J. dissenting.
Alan D. Gold and Michael Lacy, for the appellant.
Catherine A. Cooper, for the respondent.
The judgment of Lamer C.J. and Sopinka and Major JJ. was delivered by
1 Sopinka J. -- The appellant appeals from his conviction for fraud on two grounds:
(1) that the Crown improperly split its case; and
(2) that the Crown was permitted to call reply evidence in breach of the collateral fact rule.
2 I agree with the appellant that the appeal must be allowed on the second ground for the reasons of Doherty J.A. dissenting in the Court of Appeal (1996), 104 C.C.C. (3d) 160.
3 Since in the circumstances a new trial must be held, it is unnecessary to deal with the first ground.
4 In the result, the appeal is allowed, the judgments at trial and of the Court of Appeal for Ontario are set aside and a new trial is ordered.
The following are the reasons delivered by
5. L’Heureux-dubé J. (dissenting) -- I would dismiss the appeal for the reasons of the majority of the Court of Appeal (1996), 104 C.C.C. (3d) 160, since I am of the view that there was no error by the trial judge and, in any event, as there was no substantial wrong or miscarriage of justice occasioned by the reply evidence, the curative proviso of s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46, should apply.
The following are the reasons delivered by
6. Iacobucci J. -- I agree with my colleague, Justice Sopinka, but would go further. In my view, for the reasons given by Doherty J.A. dissenting in the Court of Appeal of Ontario (1996), 104 C.C.C. (3d) 160, the Crown improperly split its case. Accordingly, I would also allow the appeal on that ground. I would dispose of the appeal as proposed by Sopinka J.
Appeal allowed, L’Heureux‑Dubé J. dissenting.
Solicitors for the appellant: Gold & Fuerst, Toronto.
Solicitor for the respondent: The Attorney General for Ontario, Toronto.