R. v. Arabia,

• Jurisdiction: Ontario
• Judge: Juriansz, MacFarland and Watt, JJ.A.
• Neutral Citation: 2008 ONCA 565
• Citation: (2008), 240 O.A.C. 104 (CA),2008 ONCA 565,235 CCC (3d) 354,[2008] OJ No 2960 (QL),240 OAC 104,[2008] O.J. No 2960 (QL),(2008), 240 OAC 104 (CA),240 O.A.C. 104
• Date: 17 April 2008
• Court: Court of Appeal (Ontario)

R. v. Arabia (J.) (2008), 240 O.A.C. 104 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JL.059

Her Majesty the Queen (respondent) v. John Arabia (appellant)

(C44956; 2008 ONCA 565)

Indexed As: R. v. Arabia (J.)

Ontario Court of Appeal

Juriansz, MacFarland and Watt, JJ.A.

July 25, 2008.

Summary:

The accused was convicted of various offences under the Controlled Drugs and Substances Act and the Criminal Code. When the accused appeared for sentencing, he applied to have the defence case reopened or a mistrial declared. The accused supported the applications with two affidavits. The first affidavit, that of Czernik, a stranger to the proceedings, claimed that Czernik was responsible for the marijuana grow operation of which the accused had been convicted. The second affidavit, that of trial counsel for a co-accused who had been acquitted, reported that the concentration of tetrahydrocannabinol (THC) in some cannabis resin that was the subject of the conviction of possession for the purpose of trafficking was significantly lower than that usually trafficked, thus calling into question the likelihood of trafficking as the purpose underlying the accused's possession.

The Ontario Court of Justice dismissed the applications and sentenced the accused. The accused appealed, asserting that the trial judge applied the wrong test.

The Ontario Court of Appeal dismissed the appeal. Although the trial judge applied the wrong test, the application of the correct test yielded the same result.

Criminal Law - Topic 4570

Procedure - Conduct of trial - Re-opening of trial to hear additional evidence - An accused, at his sentencing hearing, applied to have the case reopened or a mistrial declared - The accused supported the request with two affidavits - The trial judge concluded that the evidence was relevant, but that its admission would be extremely prejudicial to the prosecution - Further, admission would severely disrupt the orderly and expeditious conduct of the case - The Ontario Court of Appeal held that the trial judge erred in law by applying the test applicable to reopening a case before verdict - The court referred to the criteria applicable to reopening a case after adjudication - The court noted that generally, permission to reopen would be followed by setting aside the prior findings of guilt, reception of the further evidence, together with any evidence offered in reply, the submissions of counsel and a decision on the adequacy of the prosecution's proof in light of the new evidence - In some instances, a decision to receive the further evidence might require the declaration of a mistrial - A similar conclusion might be warranted absent a decision on admissibility, for example, where the proposed evidence was not disclosed in a timely way by the prosecutor - While there might be some uncertainty about the precise standard to apply in determining whether to declare a mistrial before verdict or judgment, it was well settled that the authority was only to be exercised in the clearest of cases - There seemed no reason in principle to apply any less rigorous standard to applications for the same remedy made after verdict or judgment - See paragraphs 45 to 55.

Criminal Law - Topic 4570

Procedure - Conduct of trial - Re-opening of trial to hear additional evidence - The fourth requirement for the test to reopen a case after a conviction to admit additional evidence, required that the evidence had to be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result - The Ontario Court of Appeal stated that the assessment mandated by the requirement envisaged an assessment of the impact of the proposed evidence on the result at trial - That assessment only had to be performed in connection with evidence that otherwise satisfied the requirements for the test - The court stated that "To hold otherwise would mean that evidence not reasonably capable of belief, or evidence excluded by an admissibility rule, would nonetheless qualify for assessment under the fourth requirement, an absurd result." - See paragraph 80.

Criminal Law - Topic 4570

Procedure - Conduct of trial - Re-opening of trial to hear additional evidence - The accused was convicted of offences under the Controlled Drugs and Substances Act and the Criminal Code - When he appeared for sentencing, he applied to have the defence case reopened or a mistrial declared - The accused supported the applications with two affidavits - The first affiant (Czernik) claimed responsibility for the marijuana grow operation of which the accused had been convicted - The second affiant (Bruzzese) was the trial counsel for a co-accused who had been acquitted - Bruzzese's affidavit stated that the concentration of tetrahydrocannabinol in some cannabis resin that was the subject of the conviction of possession for the purpose of trafficking was significantly lower than that usually trafficked - The trial judge dismissed the applications - The accused appealed - The Ontario Court of Appeal concluded that the trial judge applied the wrong test for reopening a case after adjudication, but dismissed the appeal where application of the proper test yielded the same result - Czernik's affidavit could not have been obtained with the exercise of due diligence prior to trial - However, the affidavit was threadbare in detail and therefore unworthy if not incapable of belief - Absent Czernik as a witness, it was at best extremely doubtful whether his affidavit was admissible as an exception to the hearsay rule - The penal interest exception appeared inapplicable on vulnerability grounds - Likewise, the reliability requirement appeared unsatisfied, even if necessity was met - Bruzzese's proposed evidence could have been obtained prior to trial - Further, his affidavit represented at least second-hand hearsay - Credibility was of no moment when the evidence was inadmissible - Evidence of other indicia of trafficking amply supported the trial judge's conclusion making diminished concentration of no moment to the result - See paragraphs 56 to 84.

Criminal Law - Topic 4631

Procedure - Mistrials - General - [See first Criminal Law - Topic 4570 ].

Evidence -Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - [See third Criminal Law - Topic 4570 ].

Evidence - Topic 1553

Hearsay rule - Hearsay rule exceptions and exclusions - Statements against interest - What constitutes a statement against interest - [See third Criminal Law - Topic 4570 ].

Cases Noticed:

R. v. Kowall (M.J.) (1996), 92 O.A.C. 82; 108 C.C.C.(3d) 481 (C.A.), leave to appeal refused [1997] 1 S.C.R. viii; 208 N.R. 319; 98 O.A.C. 400 (S.C.C.), appld. [para. 46].

R. v. E.B.M. (2002), 169 B.C.A.C. 230; 276 W.A.C. 230; 165 C.C.C.(3d) 39; 2002 BCCA 278, consd. [para. 46].

R. v. R. (1994), 74 O.A.C. 363; 94 C.C.C.(3d) 168 (C.A.), refd to. [para. 52].

R. v. Paterson (D.R.) (1998), 102 B.C.A.C. 200; 166 W.A.C. 200; 122 C.C.C.(3d) 254 (C.A.), refd to. [para. 52].

R. v. Hayward (F.) (1993), 67 O.A.C. 379; 86 C.C.C.(3d) 193 (C.A.), refd to. [para. 53].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 55].

Truscott, Re (2006), 212 O.A.C. 258; 213 C.C.C.(3d) 183 (C.A.), refd to. [para. 69].

R. v. Watson (K.S.) (1996), 92 O.A.C. 131; 108 C.C.C.(3d) 310 (C.A.), refd to. [para. 69].

R. v. L.B.; R. v. M.A.G. (1997), 102 O.A.C. 104; 116 C.C.C.(3d) 481 (C.A.), refd to. [para. 69].

R. v. Wildman, [1984] 2 S.C.R. 311; 55 N.R. 27; 5 O.A.C. 241, refd to. [para. 73].

R. v. Blastland (1985), 61 N.R. 307; 81 Cr. App. R. 266 (H.L.), refd to. [para. 73].

R. v. O'Brien, [1978] 1 S.C.R. 591; 16 N.R. 271, refd to. [para. 76].

R. v. Demeter, [1978] 1 S.C.R. 538; 16 N.R. 46, affing. (1975), 25 C.C.C.(2d) 417 (Ont. C.A.), refd to. [para. 76].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338, refd to. [para. 76].

R. v. Blackman (L.) (2008), 376 N.R. 265; 239 O.A.C. 368; 2008 SCC 37, refd to. [para. 76].

Authors and Works Noticed:

McCormick on Evidence (6th Ed. 2006), p. 733, § 185 [para. 69].

Counsel:

Philip Campbell, for the appellant;

Sarah Egan, for the respondent.

This appeal was heard on April 17, 2008, by Juriansz, MacFarland and Watt, JJ.A., of the Ontario Court of Appeal. Watt, J.A., delivered the following decision for the Court on July 25, 2008.