COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v. IVAN AYALA
(carrying on business as AYALA ENTERPRISES)
(Appellant)
BEFORE: DOHERTY, ABELLA AND MOLDAVER JJ.A.
COUNSEL: Harvey Stone
For the appellant
Marie Comiskey
For the respondent
HEARD: July 13, 2000
On appeal from convictions and sentence from the conviction of
Ewaschuk J. dated November 27, 1998.
E N D O R S E M E N T
1In this case, we see no reason to depart from the principle
that while the appellant is entitled to any relevant information
disclosable pursuant to R. v. Stinchombe and contained in Crown
notes made in the course of witness preparation, the notes
themselves are not disclosable.
2The Crown, prior to this appeal, made additional information
available to the appellant which was not made available by the
Crown at trial. The Crown’s failure at trial to produce this
information was an error in judgment. While the impact of this
undisclosed information on the trial outcome is unclear, its
absence may reasonably have affected the trial’s fairness in
accordance with the principles set out in R. v. Dixon.
3This case turns fundamentally on credibility and, as the
verdicts of the trial judge demonstrate, cross-examination on
matters of credibility was crucial, particularly when one
considers the defence position that there was no motive and that
the appellant’s normal practice was arguably inconsistent with
the theory of the Crown. For these reasons, a new trial is
warranted.
4Leave to appeal is granted. The appeal is allowed, the
order of Ewaschuk J. is set aside, the convictions are quashed
and a new trial is ordered.
“Doherty J.A.”
“R. S. Abella J.A.”
“M. J. Moldaver J.A.”