



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nicevski, 2013
    ONCA 435

DATE
: 20130621

DOCKET: C53617

Laskin, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Nicevski

Appellant

Mark Halfyard and Daniel Brown, for the appellant

Kim Crosbie, for the respondent

Heard: June 18, 2013

On appeal from the conviction entered on February 10,
    2011 by Justice Edwin B. Minden of the Superior Court of Justice, sitting without
    a jury.

APPEAL BOOK ENDORSEMENT

[1]

The main issue on this appeal is whether the proposed fresh evidence of
    the toxicologist is admissible.  In our view, it is in the interests of justice
    to admit the fresh evidence.  Although this evidence was available at trial we
    accept defence counsels affidavit that his failure to lead this evidence was
    an oversight, not a tactical decision.  That the due diligence requirement was
    not met does not, in this case, preclude the admission of the fresh evidence.

[2]

Thus, the admission of the fresh evidence turns on the fourth
Palmer
criterion:  whether the evidence, when taken with the other evidence adduced at
    trial, could reasonably be expected to have affected the verdict.  We think the
    appellant has satisfied this criterion.  The fresh evidence is independent,
    objective evidence that is capable of raising sufficient concern about the
    complainants credibility that it may well have affected the finding of guilt.

[3]

Accordingly, the fresh evidence is admitted.  Based on the fresh
    evidence, the appeal is allowed.  The conviction is set aside and a new trial
    is ordered.


