Court of Appeal of Quebec

Witharanage c. R.


Giroux, Hogue, Sansfaçon

Appeal from a conviction. Dismissed.

The appellant appeals from a judgment of the Court of Quebec convicting him of the attempted murder of an 11-year old girl. According to the facts noted by the trial judge, the appellant tried to choke the victim with a necklace, then a skipping rope, before dragging her outside and leaving her in an alleyway.

The appellant claims that the judge erred in refusing to grant a stay of proceedings, given the Crown’s failure to obtain the statement of a witness that could have contradicted the complainant’s version of what she was doing during the day. While the prosecution has a duty to disclose “the fruits of its inquiry” and “all relevant information” to an accused, it does not have a duty to look for evidence that may be helpful to an accused’s defence. In this case, as all the evidence suggested that the attack occurred in the evening while the complainant was at home, the prosecution had no obligation to obtain the potentially contradictory statement of a witness on what the complainant had been doing during the day, before the attack.

The appellant submits that the judge should have granted a stay of proceedings to sanction the destruction by the police of evidence relevant to his defence. The judge concluded that many of these objects were irrelevant. She also accepted the Crown’s explanation that the destruction had been due to “human error” rather than gross negligence or malicious intent. This conclusion is a question of fact, owed deference on appeal, and the appellant has not shown any palpable or overriding error by the judge in this regard. The judge was also correct in finding that the appellant had not shown any actual breach of his right to full answer and defence.

The judge did not err in her assessment of the evidence. She followed the teachings of R. v. W. (D.), (S.C. Can., 1991-03-28), SOQUIJ AZ-91111043, J.E. 91-603, [1991] 1 S.C.R.  742. She did not believe the appellant’s version and concluded that the accused had not raised a reasonable doubt. Moreover, she used her common sense to assess the reliability of the scientific evidence and concluded that it corroborated all the Crown’s evidence. Last, she did not err in concluding that the presence of another male’s DNA on the skipping rope and the absence of any clear traces of the appellant’s DNA on the rope or the appellant’s clothes were insufficient to raise a reasonable doubt as to his identity as the perpetrator.

*Summary by SOQUIJ
Text of the decision: Http://


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