- DATE: 20021010 DOCKET: C35924
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – RICHARD ANTHONY FARQUHARSON (Appellant)
BEFORE: DOHERTY, AUSTIN and FELDMAN JJ.A.
COUNSEL: Mara Greene for the appellant
Laura Eplett for the respondent
HEARD: October 3, 2002
RELEASED ORALLY: October 3, 2002
On appeal from the conviction by Justice Peter A. Grossi dated November 8, 2000.
E N D O R S E M E N T
[1] The trial judge erred in law in excluding the evidence proffered by the defence. That evidence went to the existence of, and the extent of the witness Middleton’s ongoing animus towards the appellant. It was admissible under the established exception to the rule which forbids calling evidence to challenge a witness’ answer on a collateral matter.
[2] While Middleton had conceded animus towards the appellant at the time of the incident, he had not acknowledged ongoing animus and had certainly not acknowledged animus to the degree that the proffered evidence suggested. There was therefore no basis upon which to exclude the evidence.
[3] The curative proviso cannot be applied. Middleton was a key witness for the Crown. The evidence tendered could have significantly affected his credibility, not only in relation to the existence of animus, but with respect to his entire evidence. The Crown cannot satisfy us that had a trier of fact heard the evidence in question, the verdicts would necessarily have been the same. The appellant is entitled to a new trial on all charges relating to the firearm.
[4] The appellant also contends that the conviction on the trafficking in cocaine charge was unreasonable. We are satisfied, assuming the finding that the appellant was in possession of the gun can be sustained, that there was some evidence upon which a trier of fact, acting reasonably, could convict the appellant of possession of cocaine for the purposes of trafficking. The finding that the appellant was in possession of the gun was, however, tied to the evidence of the witness Middleton. The error described above, also taints the conviction on the trafficking in cocaine charge. There must be a new trial on this charge as well.
[5] The appeal is allowed, the convictions are quashed and new trials are ordered on all counts.
“Doherty J.A.”
“Austin J.A.”
“K. Feldman J.A.”