Case Brief

R v. Sherry ,1995 26 (3d) 782 (OR)

Facts
Parties: A) The Plaintiff/ Appellant : Clinton Sherry
B) Respondent/ Defendant : The Crown
C) The Witness : Jasper Clause

History: The appellant was convicted of dangerous driving, impaired driving

and driving while disqualified. He was scented to 20 months in jail.

Factual Circumstances: Clinton Sherry went to court for a driving incident

where the car was crashed into a ditch and impaired by alcohol Clinton
Sherry was seen getting out of the drivers side. The appellant did not testify.
A witness, Jasper Clause did testify that he was the one driving.

Issues
1. Whether Clinton Sherry was the on operating the car?
2. Did the trial judge pre judge the case by asking for the witness to be
informed about perjury, assuming he was lying?

Held
1. It was decided that the appeal would be allowed to have a new trial
because of the way the previous trial judge handled the witness and
appeared to prejudge. Before this trial the criminal code , RSC 1985 c
C-46 is to be reviewed.

Ratio
-The judge during the trial demanded that the witness be informed about
ss.131 and 132 of the Criminal Code to be informed on perjury and the
consequences.
- The pre judgment of the case is being looked into because a judge should
not make comments about the witness evidence because it compromises
the appearance of justice.
-The case referred to is R v. Augello,
-Before this trial the Criminal Code , RSC 1985 c C-46 is to be reviewed.
-The trial was referred to R V. Augello, 1963 3 CCC,191 at p.192 (ont. CA)
where a similar situation happened with pre judgment and helped make the
decision for this case to be appealed.
-The judge called the witnesses testimony a total fabrication which created
an appearance of unfairness and a miscarriage of justice.
-The appellant did have a lengthy record of driving charges already.
The new trail was a better remedy because a stay would eliminate the
drivers suspension which shouldnt be eliminated for the safety of the public.
Instead it was said that the crown should take the sentence that Clinton
Sherry already served.

Dissent
The second judge thought the opposite, they were not convinced that the
trial judges comments affected the trial at all.
-The cross examination brought up the charged the witness could face if he
was lying but didnt say that he was in fact going to face those charges.
-The judge most likely just wanted to make sure the witness understood and
that no one was making him do this because it is such a large and
incriminating statement to make and so he understands the consequences.
-Lastly he states that the trial counsel didnt at the time of the trial interpret
the judges comment as inappropriate or as prejudging which is evidence that
they werent.
-This judge dismissed the appeal but that was not the final outcome.