R. v. Figliola (M.) et al., (2011) 281 O.A.C. 306 (CA)

• Judge: Rosenberg, Goudge and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Friday June 17, 2011
• Jurisdiction: Ontario
• Citations: (2011), 281 O.A.C. 306 (CA);2011 ONCA 457

R. v. Figliola (M.) (2011), 281 O.A.C. 306 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. JN.023

Her Majesty The Queen (respondent) v. Maria Figliola and Daniele Domineco Di Trapani (appellants)

(C46146, C45426, C46175; 2011 ONCA 457)

Indexed As: R. v. Figliola (M.) et al.

Ontario Court of Appeal

Rosenberg, Goudge and Blair, JJ.A.

June 17, 2011.

Summary:

The two accused were convicted of first degree murder (judge and jury). They appealed, raising issues regarding the cross-examination by Crown counsel of his own witness and severance.

The Ontario Court of Appeal allowed the appeals, set aside the convictions and ordered separate new trials.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - The female accused (Figliola) allegedly hired the male accused (Di Trapani) to kill her husband - They were convicted of first degree murder - Figliola appealed, arguing that the trial judge erred by part way through the trial permitting Crown counsel to cross-examine at large a close friend of hers (Pignatelli) as an adverse witness (Canada Evidence Act, s. 9(1)) - The Ontario Court of Appeal allowed Figliola's appeal - There was no basis to interfere with the trial judge's discretionary adversity ruling - However, following the s. 9(1) ruling, the Crown should have been restricted to cross-examining on the prior inconsistent statements and the circumstances surrounding them - The cross-examination at large had the effect of shredding Pignatelli's credibility and created a situation where the jury might well use that to conclude that the accused also were not credible and therefore guilty, a situation prohibited by R. v. Soobrian (Ont. C.A. 1994) - The jury needed a clear and specific mid-trial and final direction that they could not use a finding that Pignatelli was not credible to conclude that either or both the accused were not credible or were guilty - See paragraphs 36 to 65.

Criminal Law - Topic 4482

Procedure - Trial - Joint or separate trials of two or more persons - The female accused (Figliola) allegedly hired the male accused (Di Trapani) to kill her husband - The two accused were convicted of first degree murder (judge and jury) - Di Trapani appealed, arguing that the trial judge erred in refusing to sever his trial from that of Figliola - Di Trapani claimed that he was prejudiced by certain evidence given at trial by a witness (Gonzales), respecting what Figliola had told Gonzales which implicated Di Trapani in the murder - That evidence, as hearsay was inadmissible against Di Trapani, although not Figliola - The force of that evidence was considerably enhanced by the fact that it was given not once but twice, first by Gonsalves in chief, and then in reply, in an emotional videotape of his out of court interview with the police - Added to that was the fact that the trial had proceeded for a number of weeks prior to this testimony on the basis that the prejudicial evidence would be excluded - The Ontario Court of Appeal allowed the appeal, holding that the failure to sever the trial resulted in an injustice requiring that Di Trapani's conviction be set aside and that he be retried separately - See paragraphs 66 to 113.

Evidence - Topic 4702.1

Witnesses - Examination - Cross-examination - Hostile or adverse witness - The Ontario Court of Appeal stated that "In Ontario, a ruling that a witness is 'adverse' pursuant to s. 9(1) of the Canada Evidence Act is not the equivalent of a common law declaration of 'hostility' entitling the beneficiary of the ruling to cross-examine the witness at large ..." - See paragraph 49.

Evidence - Topic 4702.1

Witnesses - Examination - Cross-examination - Hostile or adverse witness - [See Criminal Law - Topic 4377].

Evidence - Topic 4762

Witnesses - Prior inconsistent statements - Hostile or adverse witness - Declaration of - General - [See Criminal Law - Topic 4377 and Evidence - Topic 4702.1].

Cases Noticed:

R. v. Soobrian (K.); R. v. Beaudry (J.R.) (1994), 76 O.A.C. 7; 21 O.R.(3d) 603; 96 C.C.C.(3d) 208 (C.A.), refd to. [para. 37].

Wawanesa Mutual Insurance Co. v. Hanes, [1961] O.R. 495 (C.A.), refd to. [para. 49].

R. v. Cassibo (1982), 39 O.R.(2d) 288; 70 C.C.C.(2d) 498 (C.A.), refd to. [para. 49].

R. v. Vivar (A.) et al., [2004] O.T.C. 5 (Sup. Ct.), refd to. [para. 49].

R. v. S.W.S., [2005] O.T.C. 1004 (Sup. Ct.), refd to. [para. 49].

R. v. Osae (E.), [2010] O.T.C. Uned. 3108; 2010 ONSC 3108, refd to. [para. 49].

R. v. Gushue (No. 4), 1975 CarswellOnt 25 (Co. Ct.), refd to. [para. 49].

R. v. Cronshaw (1976), 33 C.C.C.(3d) 183 (Ont. Prov. Ct.), refd to. [para. 49].

R. v. Coffin (1956), 114 C.C.C. 1 (S.C.C.), refd to. [para. 50].

R. v. Hamilton (A.) et al. (2011), 279 O.A.C. 199; 2011 ONCA 399, refd to. [para. 93].

R. v. Last (G.E.), [2009] 3 S.C.R. 146; 394 N.R. 78; 255 O.A.C. 334; 2009 SCC 45, refd to. [para. 93].

R. v. Litchfield, [1993] 4 S.C.R. 333; 161 N.R. 161; 145 A.R. 321; 55 W.A.C. 321, refd to. [para. 93].

R. v. Creighton (D.J.) and Crawford (C.), [1995] 1 S.C.R. 858; 179 N.R. 161; 81 O.A.C. 359, refd to. [para. 94].

R. v. Rose (V.) (1997), 100 O.A.C. 67 (C.A.), refd to. [para. 96].

R. v. Guimond, [1979] 1 S.C.R. 960; 26 N.R. 91, refd to. [para. 104].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 9(1), sect. 9(2) [para. 36].

Evidence Act (Can.) - see Canada Evidence Act.

Counsel:

Michael W. Lacy, for the appellant, Maria Figliola;

P. Andras Schreck and Apple Newton-Smith, for the appellant, Daniele Di Trapani;

David Finley and John Pearson, for the respondent.

This appeal was heard on December 20 and 21, 2010, before Rosenberg, Goudge and Blair, JJ.A., of the Ontario Court of Appeal. The following decision was released by the court on June 17, 2011.