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USE OF CONVICTIONS & TESTIMONY OF CO ACCUSED

R. v. Gareau, 2012 NSCA 41

...


The appellant was convicted of first degree murder and conspiracy to commit murder by a Supreme Court of Nova Scotia judge with a jury.  Several co-accuseds were earlier convicted in the same plot.  ...


...The fatal error involved the fact that others were convicted in the same plot.  Specifically the judge told the jury that they could use this evidence against this appellant when considering his guilt or innocence.  In the circumstances, this error was significant enough to command a new trial.

...

(Court adopts this as the correct procedure)


... Prof. Gerry A. Ferguson, Justice Michael R. Dambrot & Justice Elizabeth A Bennett, Canadian Criminal Jury Instructions, 4th ed, vol. 1 (updated November 2011), (Vancouver: The Continuing Legal Education Society of British Columbia, 2005) at 4.34-1 to 4.34-3 (“CrimJI”).

INTRODUCTION

1.   ________ [the accused] is charged with the offence of ________ [e.g., Robbery].  You heard ______ [the co-accused] plead guilty to that offence and testify about (his/her) participation in its commission.

WARNING - USE OF CO-ACCUSED’S GUILTY PLEA AND TESTIMONY AS TO THEIR ROLE IN THE OFFENCE

2.   You should not use _____’s [the co-accused’s] guilty plea against _____ [the accused] in any way.  That guilty plea forms no part of the evidence against (Mr./Ms.) ______ [the accused].  Taken alone, the testimony of ______ [the co-accused] as to (his/her) role in the offence is not proof of ______’s [the accused’s] intent to commit the offence of ______ [e.g., robbery]. 1

CO-ACCUSED’S TESTIMONY AND OTHER EVIDENCE MAY BE USED IN ASSESSING THE ACCUSED’S KNOWLEDGE AND INTENT

3.   However, you may consider the testimony of ______ [the co-accused] admitting (his/her) role and intention in respect of the offence, along with all the other evidence, in assessing the knowledge and intention of ______ [the accused].2





Jim O'Neil, LL.B.

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