COURT OF APPEAL FOR ONTARIO

DATE: 20000714

DOCKET: C31213

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

[1] In 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.

[2] The 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.

[3] This 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.

[4] Leave 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.”