





CITATION:
R. v. Connelly, 2011
          ONCA 310



DATE: 20110420



DOCKET: M38868 (C48793)



COURT OF APPEAL FOR ONTARIO



LaForme, Rouleau and Karakatsanis JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Callum Connelly



Appellant



Matthew Gourlay, for the appellant



Deborah Krick, for the respondent



Heard and released orally: April 11, 2011



ENDORSEMENT



[1]

On February 28, 2008, Mr. Connelly was convicted
    of robbery and sentenced to five months imprisonment in addition to at least 50
    days pre-trial custody and two years probation.

[2]

On March 16, 2009, Mr. Connellys inmate appeal
    was heard by this court.  This appeal
    against conviction was on the basis of an alleged violation of his right to
    counsel.  The appeal was subsequently
    dismissed in written reasons by this court released on May 20, 2009.

[3]

On July 24, 2009, the Ministry of the Attorney
    General, Criminal Law Division, notified Mr. Connellys trial counsel that a
    vetted jury list had been made available to the Crown at trial but that list
    had not been disclosed to the defence.  Mr. Connelly moved to re-open his appeal and at the September 2010
    inmate sittings, Justice Moldaver appointed counsel under s. 684 of the
Criminal Code
.  Mr. Connelly is now represented by counsel
    and brings this motion to re-open his appeal.

[4]

At its core, this is an issue about
    non-disclosure.  The Crown was in
    possession of a partially vetted jury panel list, which provided the Crown with
    some information about some prospective jurors that the defence did not
    have.

[5]

We have doubts as to whether there is
    jurisdiction for this court to re-open Mr. Connellys appeal, given that his
    appeal has already been heard on the merits and dismissed.  In any event, we can find no reason to have a
    concern that in this case a miscarriage of justice arose from the police
    database checks performed on prospective jurors.  While the non-disclosure of this information
    is troubling, it had no impact on the jurys impartiality and independence.

[6]

In sum, Mr. Connelly has not demonstrated, on a
    balance of probabilities, that the failure to disclose the information
    prejudiced his right to make full answer and defence.  That is, he has failed to satisfy this court
    that there is a reasonable possibility that the non-disclosure affected the
    outcome at trial, or the overall fairness of the trial process.  Therefore, the motion is denied.

H.S. LaForme J.A.

Paul Rouleau J.A.

Karakatsanis
    J.A.


