Court of Appeal for Ontario

Date: 2018-12-12

Docket: C59677

Judges: Doherty, Rouleau and van Rensburg JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Naveen Ariaratnam Appellant

Counsel

For the Appellant: Catriona Verner

For the Respondent: Howard Leibovich and Deborah Krick

Hearing and Appeal

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.

Decision

Doherty J.A.:

I. Introduction

[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. Facts

[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 appellant's alcohol consumption.

III. Analysis

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 appellant's 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 appellant's 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 appellant's 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 victim's 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 SCC 30, [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 judge's 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 appellant's group by the victim's 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 appellant's 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 victim's 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 counsel's 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. Moniz's 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 witness's 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 judge's 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 appellant's 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 appellant's 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 appellant's demeanor to make findings about the appellant's 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 jury's 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 driver's 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 appellant's 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 driver's 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 appellant's 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 jury's use of the evidence to support the Crown's 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 appellant's 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 appellant's 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 accused's 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 accused's 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 someone's reaction after the commission of the actus reus of the homicide. It strains reality to describe the appellant's 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 shooter's state of mind when he fired the first.

[45] In any event, I do not read White as supporting the appellant's 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 accused's immediate flight after the gun was fired was potentially probative of the appellant's state of mind. Rothstein J., for four members of the majority, said, at para. 74:

A jury could legitimately infer that Mr. White's 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 accused's 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. White's 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 appellant's 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 appellant's manner of driving and his actions after the collision.

[49] The defense challenged Mr. Cacao's 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 appellant's 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. Cacao's 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. Cacao's conversations with the officer in charge and the Crown. The defence alleged that the Crown's 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 Crown's deliberate misconduct had seriously undermined the appellant's 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 appellant's involvement in the debit card scheme in order to elicit Mr. Cacao's 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 Crown's 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 Crown's explanation that he did not think that Mr. Cacao's 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 offender's 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. Cacao's 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 Crown's 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 Crown's 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 Crown's 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. Cacao's 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 Crown's failure to disclose Mr. Cacao's 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 Crown's initial failure to tell the defence about Mr. Cacao's admission to Crown counsel that he had committed frauds was inadvertent and excusable, the Crown's subsequent failure to make that disclosure in light of certain events that transpired before and during Mr. Cacao's testimony created an appearance of unfairness that so undermined the integrity of the trial process as to necessitate Crown counsel's 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 counsel's arguments, I accept the trial judge's 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 judge's acceptance of the Crown's explanation for the Crown's belief that his brief discussion with Mr. Cacao did not give rise to further disclosure obligations.

[68] The trial judge's findings are a complete answer to the arguments raised at trial. In light of those findings, the Crown's 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. Cacao's brief discussion with the Crown, which she argues should have alerted the Crown to the need to immediately disclose Mr. Cacao's 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 Crown's 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 Crown's legal argument about the permissible scope of cross-examination gave rise to further disclosure obligations. The appellant states that Mr. Cacao's 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. Cacao's cross-examination should be limited to charges of which he had knowledge, the Crown should have been alerted to the importance of Mr. Cacao's admission to the defence strategy.

[73] I see no connection between the substance of the Crown's legal argument and the appellant's suggestion that the Crown's legal argument should have made him aware that Mr. Cacao's admission was important to the defence. Nor, in my view, can the argument advanced by the Crown, particularly in light of the Crown's reaction to the trial judge's comments, be taken as an attempt by the Crown to prevent cross-examination of Mr. Cacao on any of his fraudulent activity. The Crown's 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. Cacao's admission that he had been committing frauds. I reach that conclusion bearing in mind the trial judge's 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. Cacao's 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 counsel's failure to appreciate the importance of advising the defence of Mr. Cacao's 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 counsel's 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. Cacao's 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. Cacao's 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 Crown's reaction or non-reaction to Mr. Cacao's 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 don't 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. Cacao's 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 Crown's 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 appellant's 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. Cacao's admission about committing frauds to the defence, the Crown's failure to do so did not imperil the integrity of the trial process.

[79] I see no error in the trial judge's refusal to disqualify Crown counsel.

IV. Conclusion

[80] The appeal is dismissed.

Release and Signatures

Released: December 12, 2018

Doherty J.A.

I agree. Paul Rouleau J.A.

I agree. K. van Rensburg J.A.

Footnote

[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.