



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ariaratnam, 2018 ONCA 1027

DATE: 20181212

DOCKET: C59677

Doherty, Rouleau and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Naveen Ariaratnam

Appellant

Catriona Verner, for the appellant

Howard Leibovich and Deborah Krick, for the respondent

Heard: November 13, 2018

On appeal from the conviction entered by Justice Michael
    R. Dambrot of the Superior Court of Justice, sitting with a jury, on June 22,
    2012.

Doherty J.A.:


I



[1]

The appellant appealed his conviction on a charge of second degree
    murder. At the end of oral argument, the court dismissed the appeal with
    reasons to follow. These are the reasons.

[2]

The appellant raises three grounds of appeal:

·

Did the trial judge err in refusing to put the defence of
    provocation to the jury?

·

Did the trial judge misdirect the jury on the use it could make
    of the evidence that the appellant did not apply the brakes of his SUV
    immediately after striking the victim?

·

Did the trial judge err in failing to recuse Crown counsel when it
    became apparent that the Crown had failed to disclose to the defence certain
    information communicated to the officer in charge and the Crown by the Crown witness,
    Kim Cacao?


II



[3]

The appellant and a group of friends were at a bar in downtown Toronto.
    The victim and his group of friends were at the same bar. A dispute between
    persons in the two groups led to a physical altercation. Eventually, both
    groups were ejected from the bar. The exchange of taunts, threats, and
    obscenities between the two groups continued in front of the bar and later on
    the street.

[4]

About 10-15 minutes after the groups were ejected from the bar, an SUV
    containing the appellant and some of his friends turned off of Blue Jays Way
    onto a one-way street. The vehicle was headed the wrong way. The victim and his
    group were on the sidewalk chasing behind the SUV as it accelerated around the
    corner onto the one-way street.

[5]

After turning onto the one-way street, the SUV made a U-turn. The front
    wheels went up onto the sidewalk. As the SUV was completing the U-turn, it turned
    back onto the road to avoid hitting a lamppost on the sidewalk. The vehicle
    then turned back onto the sidewalk and headed at the victim and some of his friends.
    As the SUV moved in that direction, the victim moved away from his friends and toward
    the SUV. He was struck and killed.

[6]

Security camera footage captured the movements of the SUV. It did not appear
    to brake immediately after striking the victim. It did brake briefly at a
    nearby intersection.

[7]

At trial, the appellant testified that he was not the driver. Several
    witnesses, including occupants of the SUV, identified the appellant as the
    driver. The defence also argued that if the appellant was the driver, the Crown
    had failed to prove that he had the intent necessary for murder. In support of
    this position, the defence referred to the evidence of the appellants alcohol
    consumption.


III



A.

did the trial judge err in refusing to leave the defence of provocation
    with the jury?

[8]

Counsel asked the trial judge to instruct the jury on the defence of
    provocation. The trial judge concluded that, on the entirety of the evidence,
    there was no air of reality to the defence, and declined to give the
    provocation instruction. The trial judge provided detailed reasons for his
    decision. Those reasons included a full and careful review of the relevant
    evidence: see
R. v. Ariaratnam
, 2012 ONSC 3800 (
Ariaratnam #1
).

[9]

The trial judge correctly identified the elements of the defence of
    provocation, at para. 21
[1]
:

·

Is there evidence of a wrongful act or insult?

·

Is there evidence that the wrongful act or insult would deprive
    an ordinary person of self-control?

·

Is there evidence that the wrongful act or insult actually
    deprived the accused of his self-control?

·

Is there evidence that the accused reacted to the wrongful act or
    insult quickly and before there was time for his passion to cool?

[10]

Provocation
    is a partial defence to murder. Provocation is available as a defence only if
    the Crown has proved beyond a reasonable doubt that the accused caused the
    death of another person with the intention required for murder. The defence is
    available if, on the totality of the evidence, there is an air of reality to
    the defence. There must be evidence upon which a properly instructed jury,
    acting reasonably, could have a reasonable doubt with respect to each of the
    four constituent elements of the defence: see
R. v. Mayuran
, 2012 SCC
    31, [2012] 2 S.C.R. 162, at paras. 21-22;
R. v. Dupe
, 2016 ONCA 653,
    340 C.C.C. (3d) 508, at para. 75.

[11]

When
    deciding whether the evidence lends an air of reality to the provocation
    defence, the trial judge must consider the evidence as a whole. The defence is
    entitled to the most favourable view of the totality of the evidence. That view
    must, however, present a coherent narrative reasonably capable of giving rise
    to a reasonable doubt with respect to each of the four elements of the defence.
    There is no air of reality to a defence based on the cobbling together of isolated,
    unconnected answers from different witnesses ripped from the context in which
    those answers are given. Juries are told that they must consider the evidence as
    a whole. Leaving a defence to a jury that does not realistically arise on the
    totality of the evidence can only confuse and potentially mislead the jury.

[12]

There
    can be an air of reality to the defence of provocation even if the
    appellants own testimony contradicts the defence. However, the position
    advanced by an accused in his testimony is part of the context which must be
    considered in determining whether, on totality of the evidence, there is an
    air of reality to the defence: see
R. v. Pappas
, 2013 SCC 56, [2013]
    3 S.C.R. 452, at para. 24;
Dupe
, at para. 76. The appellants evidence
    in this case was inconsistent with a provocation defence.

[13]

The
    trial judge was satisfied that the continuum of insults and aggressive acts
    exchanged between the two groups provided a basis for a finding, or at least a
    reasonable doubt with respect to the existence of a wrongful act or insult,
    the first element of a provocation defence. He was not satisfied that there was
    any basis in the evidence for doubt with respect to the remaining three elements.
    If he was correct on any one of those three, the defence was properly kept from
    the jury.

[14]

Whatever
    might be said about the evidence going to the ordinary person element of the
    defence of provocation, I agree with the trial judge that there was no air of
    reality to the claims that the appellant was actually deprived of self-control,
    or that he reacted to a wrongful insult on the sudden and before his passion
    cooled. These elements, taken together, make up the subjective component of the
    defence.

[15]

The
    appellants own evidence offered no support for the subjective component of the
    provocation defence. The evidence of others involved in the altercation that led
    to the fatal crash also offered no evidence to support the inference that the
    appellant lost control of himself at any time, much less when he drove his
    vehicle up onto the sidewalk at the victim and his friends. Instead, the
    evidence presents the appellant as a willing and active participant in the
    ongoing verbal and physical altercation between the two groups that went on for
    several minutes before the homicide. Both groups appeared ready and willing to fight.

[16]

There
    was some evidence that the appellant was angry at the victims group immediately
    before he drove his car onto the sidewalk and struck the victim. Anger is a precursor
    to the loss of self-control. It cannot, however, be equated with the loss of self-control:
    see
R. v. Parent
,
[2001]
    1 S.C.R. 761, at para. 10.

[17]

Finally,
    in addition to the absence of any evidence of loss of control from the
    witnesses, the manner in which the appellant maneuvered the SUV in the seconds
    leading up to the collision does not suggest that the appellant had lost
    self-control. Indeed, it suggests the contrary.

[18]

In
    concluding that there was no evidence of loss of self-control, the trial judge
    stressed that there was nothing to suggest that anything done by the victim or
    his group could possibly have caught the appellant unawares or by surprise. The
    trial judge said, at para. 33:

None of the insults directed towards the accused that were made
    almost continuously over an extended period of time could conceivably have
    taken the accused by surprise, have made an unexpected impact on a mind
    unprepared for it, or have come without warning, unexpected or unforeseen. In
    particular, the insults on Blue Jays Way could not meet this test. They
    followed a litany of insults, and on all the evidence they were precipitated,
    or at least enthusiastically participated in by the accused.

[19]

I
    agree with the trial judges assessment that there was no evidence that any of
    the allegedly provocative conduct impacted the appellant on the sudden or took
    him by surprise.

[20]

In
    her oral submissions, counsel pointed to three pieces of evidence that she submitted
    gave an air of reality to a provocation defence. In my view, none assist in
    establishing the subjective components of the defence.

[21]

The
    first piece of evidence involves the beating administered to one of the members
    of the appellants group by the victims group shortly after the two groups
    left the bar. However, there was no evidence that the appellant saw the beating
    or knew what had happened. There was evidence that he assisted the victim of
    the beating back into the SUV shortly after the beating occurred, although the
    appellant denied doing so in his evidence.

[22]

More
    importantly, there was no evidence from anyone, including the appellant, that
    the appellant had any reaction to the beating, much less a reaction that could
    support the claim that the appellant lost his self-control several minutes
    later. To the extent that there was any evidence of the appellants state of
    mind after he helped his injured friend into the SUV, that evidence indicates that
    the appellant was not angry and was in control of himself. He spoke with the
    bouncer and then with the police for several minutes. Neither suggested that he
    seemed overly upset by what had happened.

[23]

Counsel
    next refers to an answer given by a witness who was not part of either of the
    two groups that had been expelled from the bar. This person observed some of
    the relevant events from the backseat of a taxi cab. He testified that as the
    SUV turned onto the one-way street, he saw someone (a member of the victims
    group) make a gesture with his hand mimicking the actions of a person pointing
    a handgun. The SUV turned around shortly after this gesture and drove onto the
    sidewalk toward the victim and his group.

[24]

No
    one in the SUV, including the appellant, testified that they saw this gesture.
    Obviously, there was no evidence of any reaction by the appellant or anyone
    else in the vehicle to the gesture.

[25]

This
    evidence could only be relevant to the subjective component of the provocation
    defence if one assumes, without any evidence, that the appellant saw the
    gesture, that he interpreted it in the same manner as the person sitting in the
    back of the taxi, and that it caused him to lose his self-control. Speculative
    assumptions piled on top of each other do not lend an air of reality to a
    defence.

[26]

Finally,
    the appellant relies on a brief extract from the evidence of Deidra Moniz, one
    of the passengers in the SUV. She had known the appellant for about four weeks.
    She described the appellant as provoked in her statement to the police. In cross-examination,
    the witness readily agreed with counsels suggestion that the appellant was
    angry, had been drinking, and, in her opinion, was behaving in a way that was
    not typical for him.

[27]

Ms.
    Monizs answers summarized above do not assist on the issue of whether the
    appellant lost control as a result of the combined effects of the various
    insults and wrongful acts directed at him and his group. The witness had only
    known the appellant for a short time. Her use of the word provoked in her
    statement is no more than her opinion that the appellant was reacting in anger
    to the actions of the other group. Provocation as defined in s. 232(1) of the
Criminal
    Code
, has a very specific meaning. A witnesss use of the word provoked,
    without more, cannot lend an air of reality to the defence of provocation.

[28]

In
    the course of her argument, counsel referred to
R. v. Gill
, 2009 ONCA
    124, a case with some factual similarities to this case. In
Gill
, this
    court held that the defence of provocation should have been left with the jury.
    Counsel argues that the finding in
Gill
should control the result
    here.

[29]

Gill
is not a jurisprudential case. In
Gill
, the court applied settled legal
    principles relating to the defence of provocation to a specific set of facts.
    This trial judge applied the same settled principles to the set of facts before
    him. The manner in which this court applied legal principles to a different
    fact situation cannot determine the correctness of the trial judges
    application of those same principles to the facts before him. There are
    inevitably cases in which the application of the same legal principles to
    similar, but different, fact situations will yield different results.

B.

did the trial judge err in instructing the jury on the evidence that the
    appellant did not apply the brakes after he hit the victim?

[30]

The
    Crown led evidence from three witnesses that the SUV accelerated immediately
    after striking the victim. The Crown also introduced footage from a security camera
    which had captured the incident. The Crown maintained that the video showed
    that the brake lights were not applied immediately after the collision, but
    were only applied seconds later when the SUV reached the intersection. The defence
    contended that the video did show the brake lights coming on quickly after the
    collision.

[31]

Under
    the rubric flight without hesitation, the trial judge told the jury that they
    could use the evidence of the absence of any braking immediately after the
    collision in considering whether the appellant had intentionally, as opposed to
    accidentally, struck the victim with the SUV, and in considering whether the
    appellant had the intention for murder as defined in s. 229(a) of the
Criminal
    Code
.

[32]

The
    trial judge referred to the evidence of flight without hesitation on two different
    occasions during his instructions. Following the well-established pattern for
    instructing on post-offence conduct, the trial judge told the jury that they
    had to decide whether the appellant had in fact failed to apply the brakes
    immediately after the collision. If they were not so satisfied after reviewing
    the security camera footage, the evidence could not assist them in deciding
    either whether the appellant acted intentionally, or whether he had the state
    of mind for murder.

[33]

The
    trial judge went on to instruct the jury on two occasions that if they were
    satisfied that the appellant had indeed not applied the brakes immediately
    after striking the victim, they should consider other possible explanations for
    that failure before using the evidence to infer that the appellant deliberately
    struck the victim, or that he had the intention for murder.

[34]

The
    appellant argues that the evidence of the failure to apply the brakes should
    not have been left with the jury as evidence either that he deliberately struck
    the victim, or as evidence of his intention to commit murder. Counsel also
    argues that even if the evidence was properly left with the jury on those
    issues, the jury was not adequately cautioned against the risks associated with
    the use of that evidence. Rather, the appellant submits, the trial judge only left
    the jury with inferences consistent with guilt. The appellant argues that the
    trial judge should have articulated other, innocent explanations for the
    appellants failure to brake when he struck the victim.

[35]

In
    considering the merits of these submissions it is important to highlight the
    exact nature of the evidence that the trial judge left with the jury as
    relevant to whether the appellant acted deliberately and with the state of mind
    for murder. The trial judge did not instruct the jury that the appellants
    flight from the scene of the collision was potentially evidence that he acted
    deliberately or with the
mens rea
for murder. Nor did the trial judge
    suggest to the jury that they could rely on anything in the witnesses
    subjective assessment of the appellants demeanor to make findings about the
    appellants mental state.

[36]

The
    impugned instructions were much more focused. The trial judge told the jury
    that if they were satisfied that the appellant did not apply his brakes when he
    hit the victim, the failure to brake could support the inference that the
    appellant deliberately struck the victim, and the inference that he did so with
    the necessary intent for murder. The instruction focused the jurys attention
    very much on the footage from the security camera and the taillights of the
    vehicle in the immediate aftermath of the collision.

[37]

I
    have no difficulty accepting, as a matter of common sense and human experience,
    that a drivers failure to apply the brakes upon striking a pedestrian is
    capable of providing some insight into whether the driver deliberately, as
    opposed to accidentally, struck the pedestrian. The insight is even stronger
    when, as in this case, the driver strikes the pedestrian with the front of his
    vehicle. Nor do I have any difficulty with the common sense proposition that if
    a jury is satisfied that a driver deliberately ran over a pedestrian, the jury could
    infer from that conduct that the driver intended to cause the pedestrian serious
    bodily harm knowing that it was likely to cause death: see
R. v. Hales
,
    [2005] EWCA Crim. 1118, at para. 25.

[38]

The
    innocent explanations offered by counsel for the appellants actions, for
    example that he may have feared being caught drinking and driving, do not appreciate
    the difference between the probative value of evidence that the appellant did
    not apply the brakes and evidence of flight. The innocent explanations put
    forward by counsel address the latter, but not the former.

[39]

While
    I am satisfied that the trial judge properly left the evidence with the jury, I
    would not have described this evidence as post-offence conduct. As argued by
    the Crown, I think that the evidence that the appellant failed to apply the
    brakes was simply part of the evidence of the manner in which the appellant was
    driving his vehicle when he struck the victim. For the purpose of assessing the
    probative value of evidence of the manner of driving as it relates to the
    drivers state of mind, I see no need to distinguish the manner of driving a
    second or two before the collision from the manner of driving a second or two
    after the collision.

[40]

The
    judge could properly have left the evidence of the failure to brake upon
    striking the victim with the SUV as part of the evidence of the appellants manner
    of driving. The jury could have used that evidence in determining whether the
    appellant deliberately struck the victim and, if so, whether he did so with the
    intention to commit murder.

[41]

Assuming
    the evidence was properly viewed as post-offence conduct, I am of the view
    that the trial judge adequately cautioned the jury about the use of the
    evidence. He made it clear that the jurys use of the evidence to support the
    Crowns case depended on a finding that the appellant had in fact not applied
    the brakes immediately after striking the victim. He also made it clear to the
    jury that it was ultimately for them to decide what, if anything, to make of
    the failure to apply the brakes. Finally, he told the jury to consider other
    possible explanations for the appellants failure to brake immediately.

[42]

Counsel
    placed considerable reliance on
R. v. White
, 2011 SCC 13, [2011] 1
    S.C.R. 433, in support of the submission that evidence that the appellant failed
    to brake when he struck the victim should not have been left with the jury as
    potentially relevant to the appellants state of mind.

[43]

In
White
, the accused and the victim were involved in a physical altercation.
    The accused had a firearm. That firearm discharged during the altercation. The
    accused fled the scene immediately. The defence argued that, as the accuseds flight
    from the scene could be explained by many things, the jury should be told that
    it had no probative value on the question of the accuseds state of mind when
    the gun discharged.

[44]

One
    material difference between the facts of this case and the facts in
White
is quickly apparent.
White
was essentially a case about someones
    reaction after the commission of the
actus reus
of the homicide. It
    strains reality to describe the appellants failure to brake upon striking the
    victim with his SUV as an event separate and apart from the striking of the
    victim. The factual parallel between this case and
White
would be
    closer if the accused in
White
had fired two shots, one immediately
    after the other, and the evidentiary question was whether the firing of the
    second shot could assist in determining whether the first shot was fired
    deliberately and not accidentally. I have no doubt that in this hypothetical
    the firing of the second shot could shed light on the shooters state of mind
    when he fired the first.

[45]

In
    any event, I do not read
White
as supporting the appellants
    contention that the evidence of his failure to brake could not have probative
    value on the question of his state of mind. There were three judgments in
White
.
    The six person majority concluded that the accuseds immediate flight after the
    gun was fired was potentially probative of the appellants state of mind. Rothstein
    J., for four members of the majority, said, at para. 74:

A jury could legitimately infer that Mr. Whites lack of
    hesitation after the gun was fired belied his claim that the shooting was
    accidental. Evidence of such a failure is thus relevant to the question of
    whether he had the requisite intent for second degree murder.

[46]

Charron
    J. for the other two members of the majority agreed that the evidence of the
    accuseds immediate flight was capable of rebutting the defence suggestion that
    the gun had gone off accidentally. Charron J. accepted that the trial judge
    properly left the evidence with the jury as relevant to intent. Charron J. also
    stressed that the trial judge had cautioned the jury that the evidence had
    limited value in determining Mr. Whites state of mind:
White
, at
    paras. 126-130.

[47]

In
    summary, the trial judge correctly instructed the jury that if they were
    satisfied that the appellant did not apply the brakes immediately upon striking
    the victim on the sidewalk, they could use that evidence both when deciding whether
    the appellant deliberately, as opposed to accidentally, struck the victim, and
    on the question of the appellants intention. The trial judge properly alerted
    the jury to the factual issue to be determined in respect of the evidence,
    reminded them that it was their responsibility to decide what effect the
    evidence had, and cautioned them to consider other possible explanations before
    drawing inferences against the appellant. Examples of innocent explanations
    could have been provided. However, I am confident that a jury, having been
    alerted to the need to consider other possible explanations, would do so
    without being offered examples: see
White
, at para. 56,
per
Rothstein
    J.

C.

did the trial judge err in declining to recuse crown counsel?

[48]

Kim
    Cacao was an important Crown witness. He was in the SUV when it struck the victim.
    He identified the appellant as the driver, and gave evidence about the
    appellants manner of driving and his actions after the collision.

[49]

The
    defense challenged Mr. Cacaos credibility. He had deliberately left details
    out of the statements he gave to the police after the homicide. Mr. Cacao was
    also involved with the appellant and others in a lucrative debit card fraud
    scheme. He testified that his involvement began in June 2010, a few months
    before the homicide, and went on until sometime in 2011. According to Mr. Cacao,
    the appellant was one of the main organizers of the scheme, and he paid Mr.
    Cacao for his role in the frauds.

[50]

By
    the time of trial, Mr. Cacao had been charged with debit card frauds in Ottawa
    and Newmarket. The appellant was a co-accused in the Newmarket charges. The
    Crown had made full disclosure to the appellant of all information it had pertaining
    to the Ottawa and Newmarket charges.

[51]

At
    trial, Mr. Cacao was briefly questioned by the Crown about the outstanding
    fraud charges. He indicated that he was aware of the Ottawa charges, but not
    the Newmarket charges.

[52]

Mr.
    Cacao was cross-examined at length about his involvement in the debit card fraud
    scheme. It was apparently the position of the defence that Mr. Cacao was lying
    about the appellants involvement in the homicide to get the appellant out of
    the way so that he could take over the operation of the debit card fraud scheme.
    The cross-examination also seemed aimed at demonstrating that Mr. Cacao had
    been less than forthcoming with the prosecution about the nature and extent of his
    fraudulent activities both before and after the homicide.

[53]

During
    his cross-examination, Mr. Cacao indicated at least twice that he had not told
    the police or the Crown at any time prior to trial that he was participating in
    debit card frauds. Later in his cross-examination Mr. Cacao testified that a
    few days before he testified, in a telephone conversation, he told the officer
    in charge that he had not been completely honest at the preliminary inquiry
    when he said he was using money he borrowed and money friends gave him to
    support himself. According to Mr. Cacao, he told the officer that he was also earning
    money through his involvement in the debit card frauds.

[54]

Mr.
    Cacao also testified in cross-examination that he had spoken briefly to the
    Crown immediately before he testified. According to Mr. Cacao, he told the
    Crown that he had lied at the preliminary inquiry about his ongoing involvement
    in the debit card fraud scheme.

[55]

Mr.
    Cacaos testimony about his conversations with the officer in charge and the
    Crown led to a defence motion to stay the prosecution under s. 24(1) of the
Canadian
Charter of Rights and Freedoms
. The defence alleged that the Crown
    had failed in its disclosure obligations when it did not disclose the substance
    of Mr. Cacaos conversations with the officer in charge and the Crown. The
    defence alleged that the Crowns failure constituted an abuse of process and an
    infringement of s. 7 of the
Charter
. The defence requested a stay of
    proceedings or, alternatively, a mistrial and an order removing Crown counsel
    from the prosecution.

[56]

Counsel
    for the appellant at trial made very serious allegations against the Crown. His
    written submissions included the following assertions:

[T]he senior Crown allowed Mr. Cacao
    to perjure himself and then he misled the court to believe that he was unaware
    of any further information that ought to have been disclosed.



The senior Crown deliberately
    withheld material evidence which would have assisted the defence and then
    misled the court to believe that such information was either unfounded or non-existent.

[57]

Counsel
    argued that the Crowns deliberate misconduct had seriously undermined the appellants
    ability to properly defend himself. Counsel identified various features of this
    alleged prejudice. For example, he contended that the non-disclosure that Mr. Cacao
    had admitted to the frauds forced the defence to expose the appellants
    involvement in the debit card scheme in order to elicit Mr. Cacaos admissions
    about his involvement in that scheme.

[58]

The
    trial judge dismissed the application:
R. v. Ariaratnam
, 2012 ONSC
    4070 (
Ariaratnam #2
). In doing so, he summarized the relevant background
    and made findings of fact relating to the contents of the conversations
    involving Mr. Cacao, the officer in charge, and the Crown. He also made
    findings of fact relating to the Crowns reasons for not disclosing the
    substance of those conversations to the defence.

[59]

The
    trial judge found that Mr. Cacao had told the officer in charge that he was
    committing frauds at the time of preliminary inquiry. He did not say anything
    to the officer about committing perjury at the preliminary inquiry:
Ariaratnam
    #2
,

at para. 39.

[60]

The
    trial judge also found that Mr. Cacao spoke very briefly to the Crown immediately
    before taking the stand. Mr. Cacao told Crown counsel that he had been committing
    frauds. It was unclear from the brief comment whether Mr. Cacao meant that he
    was committing frauds before the homicide, after the homicide, or both. The
    trial judge found that Mr. Cacao did not say anything to the Crown about committing
    perjury at the preliminary inquiry. The Crown, however, acknowledged that he
    knew that Mr. Cacao had testified at the preliminary inquiry that he was being
    supported by friends and loans he had made.

[61]

The
    trial judge accepted the Crowns explanation that he did not think that Mr.
    Cacaos acknowledgement that he had committed frauds revealed anything that was
    not already known by both the prosecution and the defence. Consequently, it did
    not occur to Crown counsel that he had any obligation to disclose that
    communication. The trial judge said, at para. 47:

After all, as a
    result of the earlier disclosure of the Ottawa and Newmarket charges, Crown
    counsel would have had no doubt that Mr. Cacao was engaged in the on-going
    commission of fraud offences. Having already further disclosed this information
    to the defence, he would have had no doubt that the offenders counsel knew it
    too. Viewed in that way, in either scenario, this new information might have
    seemed inconsequential.

[62]

Ultimately,
    the trial judge found that Mr. Cacaos admission to the officer and the Crown
    that he had been committing frauds was relevant to his credibility and properly
    discloseable to the defence. The trial judge described the Crowns failure to
    disclose this admission as entirely inadvertent: para. 49.

[63]

The
    trial judge went on to analyse the prejudice claim advanced by the defence in detail.
    He found that there was absolutely no prejudice to the defence: para. 49.

[64]

Although
    the defence relied principally on the claim that the Crowns non-disclosure
    prejudiced the defence, counsel also argued that, apart from any prejudice to
    the defence, the non-disclosure undermined the integrity of the criminal
    justice process and warranted a stay on that basis. The trial judge rejected
    that argument, holding, at para. 52:

In this case, given
    the Crowns general commendable approach to disclosure, and the inadvertent
    nature of the breach, if any, no consideration of the integrity of the judicial
    system arises. The only pertinent consideration is prejudice.

[65]

On
    appeal, counsel for the appellant abandons most of the arguments made at trial.
    She does not argue that the Crown deliberately misled the court, deliberately withheld
    material from the defence, or acquiesced in Mr. Cacaos perjury. Counsel also
    abandons the claim that the non-disclosure prejudiced the appellant in his
    defence. Counsel instead focuses exclusively on the argument that the Crowns
    failure to disclose Mr. Cacaos admission undermined the integrity of the
    judicial process. Finally, counsel abandons any argument seeking a stay of
    proceedings. Counsel submits that the Crown should have been disqualified, and
    that the failure to do so necessitates a new trial.

[66]

Counsel
    on appeal also shifts the point at which she submits the fatal non-disclosure
    occurred. Counsel submits that even if the Crowns initial failure to tell the
    defence about Mr. Cacaos admission to Crown counsel that he had committed frauds
    was inadvertent and excusable, the Crowns subsequent failure to make that disclosure
    in light of certain events that transpired before and during Mr. Cacaos testimony
    created an appearance of unfairness that so undermined the integrity of the trial
    process as to necessitate Crown counsels removal from the prosecution.

[67]

In
    considering arguments advanced for the first time on appeal, this court still
    defers to the findings of the trial judge absent a material misapprehension of
    the evidence, a failure to consider material relevant evidence, or a failure to
    apply proper legal principles: see
R. v. Babos
, 2014 SCC 16, [2014] 1
    S.C.R. 309, at para. 48. In considering counsels arguments, I accept the trial
    judges findings on the stay motion at trial. Specifically, I accept his findings
    as to the content of the conversations between the Crown and Mr. Cacao. I also
    defer to the trial judges acceptance of the Crowns explanation for the Crowns
    belief that his brief discussion with Mr. Cacao did not give rise to further disclosure
    obligations.

[68]

The
    trial judges findings are a complete answer to the arguments raised at trial.
    In light of those findings, the Crowns failure to disclose the contents of its
    conversation with Mr. Cacao before he testified was both inadvertent and
    reasonable. That failure could not possibly undermine the integrity of the
    trial process in a manner warranting the removal of Crown counsel. The question
    becomes whether the new arguments advanced on appeal should change that
    assessment.

[69]

Counsel
    for the appellant refers to two things that transpired after Mr. Cacaos brief
    discussion with the Crown, which she argues should have alerted the Crown to
    the need to immediately disclose Mr. Cacaos admission to the Crown that he had
    been engaged in frauds. The first event arises out of a legal argument made by
    the Crown before Mr. Cacao testified. The second relies on certain answers provided
    by Mr. Cacao in cross-examination.

[70]

Before
    Mr. Cacao testified, Crown counsel made submissions about the scope of
    permissible cross-examination as it related to the Newmarket charges. The Crown
    accepted that the defence could cross-examine Mr. Cacao on the details of the outstanding
    Ottawa fraud charges because, in the Crowns submission, Mr. Cacao was aware of
    those charges. The Crown argued, however, that unless the defence could show
    that Mr. Cacao was aware of the Newmarket charges, it could not cross-examine
    Mr. Cacao on the details of those charges.

[71]

In
    the course of questioning Crown counsel about the argument, the trial judge drew
    a distinction between cross-examining the witness on the contents of the
    charges that the witness had no knowledge of and cross-examining the witness on
    the conduct underlying those charges. The trial judge suggested to Crown
    counsel that the appellant could cross-examine the witness on the underlying
    conduct, regardless of whether the witness was aware of the outstanding
    charges. Following a brief dialogue, Crown counsel abandoned his argument. The
    defence cross-examined Mr. Cacao at some length on the facts underlying all of
    the charges.

[72]

The
    appellant suggests that the Crowns legal argument about the permissible scope
    of cross-examination gave rise to further disclosure obligations. The appellant
    states that Mr. Cacaos generic admission to the Crown that he had engaged in
    frauds was important to the defence strategy. Counsel further argues that, in
    the course of arguing that Mr. Cacaos cross-examination should be limited to
    charges of which he had knowledge, the Crown should have been alerted to the
    importance of Mr. Cacaos admission to the defence strategy.

[73]

I
    see no connection between the substance of the Crowns legal argument and the
    appellants suggestion that the Crowns legal argument should have made him
    aware that Mr. Cacaos admission was important to the defence. Nor, in my view,
    can the argument advanced by the Crown, particularly in light of the Crowns
    reaction to the trial judges comments, be taken as an attempt by the Crown to
    prevent cross-examination of Mr. Cacao on any of his fraudulent activity. The
    Crowns argument, while perhaps ill-considered, could not possibly have alerted
    the Crown to what the appellant alleges was the significance to the defence of
    Mr. Cacaos admission that he had been committing frauds. I reach that conclusion
    bearing in mind the trial judges finding that the Crown had made full
    disclosure of all of the outstanding charges and the details of those charges
    to the defence, and that he was operating on the reasonable assumption that
    everyone involved in the trial knew that Mr. Cacao had committed frauds.

[74]

Counsel
    for the appellant also contends that the Crown should have appreciated the
    significance of Mr. Cacaos admission to Crown counsel that he had committed
    frauds when, on two occasions, Mr. Cacao testified that he had not advised the
    police or the Crown of his fraudulent activities. Counsel submits that Crown
    counsels failure to appreciate the importance of advising the defence of Mr.
    Cacaos admission in the face of his contradictory evidence, even if an
    inadvertent omission by Crown counsel, would cause the reasonable observer to
    lose all confidence in Crown counsels ability to conduct the prosecution in an
    even-handed manner.

[75]

Mr.
    Cacao was asked on several occasions about his disclosure of fraudulent
    activities to the police and the Crown. The questions were put in different
    ways. Some of the questions spoke of disclosure of his ongoing participation
    in frauds. Other questions referred to disclosure of his involvement at the
    time of the preliminary inquiry. Still other questions asked specifically about
    disclosure of his involvement with the appellant in the debit card fraud schemes.
    Some of Mr. Cacaos answers were not inconsistent with his brief comment to
    Crown counsel. For example, his denial that he had ever told the Crown or the
    police about committing frauds with the appellant is not inconsistent with his
    statement to the Crown that he had been committing frauds. Some of Mr. Cacaos
    answers, however, could reasonably be taken as an unqualified denial of having ever
    said anything to the Crown or the police about engaging in fraudulent activity.
    Understood in that way, his answers contradicted the admission he made to Crown
    counsel.

[76]

In
    considering whether the Crowns reaction or non-reaction to Mr. Cacaos answers
    compromised the integrity of the process, it is important to bear in mind the
    realities of the trial process and in particular the nature of cross-examination.
    One must look at the situation realistically. Most cross-examinations, especially
    of witnesses like Mr. Cacao, are dynamic things. Questions and answers come
    fast and furious. Sometimes the two dont match. In many cross-examinations,
    and this was one, some questions are ambiguous and double-barrelled. It can be
    difficult for the listener to know exactly what is being asked and exactly what
    is being answered. One cannot realistically expect opposing counsel to appreciate
    immediately the import and nuance of every answer given by the witness.

[77]

Even
    if one can say that Mr. Cacaos answers should have alerted the Crown to the need
    to tell the defence that Mr. Cacao had acknowledged committing frauds in his
    conversation with the Crown, I cannot say that the failure to do so amounts to misconduct
    at all, much less sufficiently egregious misconduct to warrant the removal of
    Crown counsel from an ongoing trial: see
Babos
, at para. 35.

[78]

In
    addressing the arguments advanced at trial, the trial judge found that the
    Crowns overall approach to its disclosure obligations was commendable: para.
    52. He also found that any breach of the disclosure obligation was
    inadvertent, and that it caused no prejudice to the appellants ability to
    make full answer and defence: para. 49. All three findings apply with equal
    force to the new arguments raised on appeal. Like the trial judge, I am
    satisfied that even if one assumes Crown counsel should have appreciated the
    need to disclose Mr. Cacaos admission about committing frauds to the defence,
    the Crowns failure to do so did not imperil the integrity of the trial
    process.

[79]

I
    see no error in the trial judges refusal to disqualify Crown counsel.


IV



[80]

The
    appeal is dismissed.

Released: DD DEC 12 2018

Doherty J.A.

I agree. Paul
    Rouleau J.A.

I agree. K. van Rensburg
    J.A.





[1]

This trial occurred before the amendments to s. 232(2): see
Zero
    Tolerance for Barbaric Cultural Practices Act
, S.C. 2015, c. 29, s. 7.


