CITATION: R. v. Ha, 2008 ONCA 136
DATE: 20080226
DOCKET: C45493
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
[1] The 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.
[2] On 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.
[3] Accordingly, the conviction is quashed and a new trial is ordered.