R v Vidinovski, 2020 ONCA 433

Key Facts

The complainant owned a real estate brokerage and in 2011 the complainant hired the appellant as a general office worker who managed many of the financial accounts in the office (R v Vidinovski, [2020] ONCA 433 at para 2 [Vidinovski]). In October 2014, the complainant terminated the appellant, allegedly because of suspicious handling of the financial management. The appellant was later convicted of three charges of fraud over $5,000 and four charges of uttering forged documents. She was sentenced to 18 months of custody followed by probation (Vidinovski at paras 1-2).


Grounds for Appeal

This case in the appellate court rests on three grounds of appeal put forward by the appellant.

1. The trial judge erred in not declaring a mistrial for the inflammatory comments made by the complainant

2. The trial judge erred by dismissing the appellant’s Corbett application, which prohibits the use of the accused’s prior criminal record in cross-examination (R v Corbett, [1988] 1 SCR 670).

3. The trial judge’s delivery of an unbalanced and unfair charge to the jury (Vidinovski at paras 2-4). A jury charge refers to the instructions a judge must set out in plain terms the law that the jury must apply when considering the facts of the case (R v Daley, 2007 CSC 53).

First Ground for Appeal

The trial judge stated in his mid-trial instructions to the jury that defence counsel was within their scope to “advance vigorously any defence theory” ((Vidinovski at para 9). Although these remarks could be seen as inflammatory, Justice O’Marra for the Ontario Court of Appeal, noted that this does not make up a mistrial, as per the decision in R v Burke, [2002] 2 SCR 857 the SCC confirmed that a mistrial should only be used when there is a miscarriage of justice (Vidinovski at para 10). Justice O’Marra concluded that no such miscarriage of justice was prevalent in this case.

Second Ground for Appeal

The appellant argued that the judge dismissed her Corbett application, to exclude her previous criminal records (Vidinovski at para 11). However, before allowing the jury to hear the evidence of the appellant’s prior criminal record, the trial judge cautioned the jury letting them know that the previous fraud conviction was in 1994, long before the events in question before the Court. He also strongly warned the jury that just because the appellant committed fraud in the past did not mean they were guilty of the same offence now (Vidinovski at paras 11-15). This was important because the defense made the credibility of the complainant, Ms. Sargeant, a central issue.

Third Ground for Appeal

Justice O’Marra found no basis for the appellant’s claim that the trial judge gave an unbalanced and unfair jury charge as it was, indeed, balanced and fair (Vidinovski at para 17). The jury charge conceptually highlighted some of the main issues in the appellant’s position, and despite not following the desirable practice of reviewing his intended jury charge with counsel before delivering it, it did not affect their conclusion (Vidinovski at paras 17-18).


Decision

Justice O’Marra dismissed the appeal (Vidinovski at para 18).

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