Reasons for Judgment — Wagner C.J. (Abella, Côté, Rowe and Martin JJ.concurring)
The Chief Justice — Mr. Normore was convicted at trial of attempting to commit murder, uttering a threat to cause death, and breaking and entering a place and committing attempted murder. His appeal against these convictions was allowed by a majority of the Court of Appeal, Hoegg J.A. dissenting. The Crown appeals to this Court as of right. We would allow the appeal.
We are of the view that the trial judge did not err in the way in which he addressed a witness’s refusal to answer a question put to him by defence counsel. It was open to the trial judge to take further steps to attempt to elicit an answer from the witness. However, in all the circumstances of this case, including the marginal bearing of defence counsel’s line of questioning on the matters in issue, it was a proper exercise of the trial judge’s discretion to instead continue with the main proceedings and to leave the issue of potential contempt proceedings against the witness until a later point in time.
Even if it is assumed that the trial judge committed an error in the way he addressed the refusal of a witness to answer a question put to him by defence counsel, any such error did not result in a substantial wrong or miscarriage of justice, and the convictions should therefore be upheld pursuant to s. 686(1)(b)(iii) of the Criminal Code , R.S.C. 1985, c. C-46 . The question the witness refused to answer was put to him by defence counsel in an attempt to raise doubts about who wrote two notes found in Mr. Normore’s residence. The trial judge relied on these notes, along with other evidence, to find that Mr. Normore had committed the offences in question. However, in all of the circumstances of this case, including that Mr. Normore subsequently admitted to writing the most incriminating statement in these notes, we are of the view that the trial judge’s failure to take further steps to compel the witness to answer the question put to him could not have had an effect on the verdict.
Therefore, the appeal is allowed and the convictions are restored.