COURT OF APPEAL FOR ONTARIO
GILLESE, ARMSTRONG and BLAIR JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
And
MINH PHUOC (THOMAS) HA
Appellant
Counsel:
Leslie Maunder for the appellant
Bradley Reitz for the respondent
Heard: February 25, 2008
On appeal from the conviction entered by Justice Norman D. Dyson of the Superior Court of Justice dated April 21, 2006.
APPEAL BOOK ENDORSEMENT
1The heart of this appeal lies in the undisclosed evidence that, contrary to the evidence of the witnesses at trial, Mr. Johnson never was charged. The absence of this information – indeed, evidence was to the contrary, namely, that Mr. Johnson had been charged and the charges had not been pursued due to a “glitch” in the system – clearly hampered that appellant’s ability to make full answer and defence. Without that information, defence counsel could not adequately explore at trial the notion that Johnson’s evidence was given as a quid pro quo for not being charged.
2On an application of the principles laid down in R. v. Dixon (1998), 1998 805 (SCC), 122 C.C.C. (3d) 1 (S.C.C.). We are satisfied that the appellant’s right to full answer and defence was impaired at trial as a result of the failure to disclose and that the failure affected the overall fairness of the trial process.
3Accordingly, the conviction is quashed and a new trial is ordered.