CITATION: R. v. Arabia, 2008 ONCA 565
DATE: 20080725
DOCKET: C44956
COURT OF APPEAL FOR ONTARIO
JURIANSZ, MACFARLAND AND WATT JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
JOHN ARABIA
Appellant
Philip Campbell for the appellant
Sarah Egan for the respondent
Heard: April 17, 2008
On appeal from a conviction entered by Justice R. D. Clarke of the Ontario Court of Justice, dated June 16, 2005.
WATT J.A.:
[1] When John Arabia (the appellant) appeared for sentencing on several convictions of various offences under the Controlled Drugs and Substances Act and the Criminal Code, his trial counsel asked the sentencing judge to make either of two orders: to permit re-opening of the defence case, or to declare a mistrial.
[2] The appellant’s application was accompanied by a proffer of two affidavits.
[3] The first affidavit, that of Joseph Arthur Czernik, a stranger to the proceedings, claimed that the affiant, Czernik, was the person responsible for the marijuana grow operation of which the appellant had been convicted.
[4] The second affidavit, that of trial counsel for a co-accused who had been acquitted at the end of the prosecution’s case, reported that the concentration of tetrahydrocannabinol (THC) in some cannabis resin that was the subject of a conviction of possession for the purpose of trafficking was significantly lower than that usually trafficked, thus calling into the question the likelihood of trafficking as the purpose underlying the appellant’s possession.
[5] The trial judge dismissed both applications and proceeded to sentence the appellant for the underlying convictions.
[6] What ripens for decision here is the correctness of the test applied and result reached on the post-conviction applications, and the effect of any errors on the validity of the convictions recorded.
THE FACTS
An Overview
[7] The prosecution’s case against the appellant consisted entirely of circumstantial evidence. The only controlled substances found on the appellant’s property were trace amounts of cocaine located in the glove compartment of a boat stored on the property. The remaining substances, including a substantial marijuana grow, were located on an adjacent property owned but not occupied by Andy Jarzabek, or close by the property line between the two properties.
[8] The prosecutor sought to establish the appellant’s liability through the cumulative force of evidence of:
i. police surveillance of the appellant’s activities during the evening and early morning of September 6-7, 2003;
ii. a well-travelled path from a pumpkin patch on the appellant’s property to the marijuana grow operation, and the absence of other, equally well-travelled routes to the marijuana grow;
iii. the similarities between fencing and stakes used on the appellant’s property and those surrounding the grow operation;
iv. the presence of visually similar fertilizer on the appellant’s property and at the grow site;
v. the presence on the appellant’s property of various items associated with grow operations, including electrical equipment and duct work;
vi. the presence in the appellant’s residence of various items associated with commercial traffic in controlled substances.
The Surveillance Evidence
[9] Visual surveillance of the appellant’s property began at dusk on September 6, 2003, and continued until before dawn the following morning. From their observation post, surveillance officers could see the appellant’s residence and a nearby greenhouse.
[10] On several occasions during the evening/morning of September 6-7, 2003, the appellant left his house and drove towards the back of his property. He returned about 15 minutes later and re-entered the residence. The marijuana grow operation was found on the Jarzabek property just beyond the rear boundary of the appellant’s land. The officers couldn’t determine how far back the appellant had travelled or what he did when he arrived there. Sometimes, the lights were on, at other times off, inside the appellant’s house.
The Search of the Jarzabek Property
[11] On September 8, 2003, a warranted search of the appellant’s property drifted over onto the Jarzabek lot. Searchers found a well-tended marijuana grow operation, which consisted of 206 extremely well-maintained plants surrounded by chicken wire fencing supported with lath stakes. The plants ranged in height from 4 to 8 feet. The area around the grow operation was dense bush.
[12] Investigators also found a Mason jar containing two bags with white powder in them. The jar and its contents were on Jarzabek’s property about 20 meters west of the tree line and south of a river that meandered through both lots. The powder was not identified.
[13] Behind some fence posts along the line between the properties of the appellant and Jarzabek, searchers found marijuana “shake” in a bag and in a Mason jar. “Shake” is made from those parts of the marijuana plant with the lowest concentration of its active ingredient, THC.
[14] Officers discovered a Mason jar containing a brown substance that looked like cannabis resin, and a five-gallon pail with 2 kilograms of cannabis resin in tobacco tins. Another Mason jar in the pail held empty vials, four boxes of ammunition, a pill bottle marked “sleeping pills”, stained rags and a stained screen, and a bag of marijuana. All these items were on the ground on or within 10 meters of the tree-line between the lots of the appellant and Jarzabek.
The Search of the Appellant’s Property
[15] Most of the items recovered from the appellant’s property were things often but not exclusively used for commercial trafficking in controlled substances:
i. digital scales, found in the laundry room and in a spare bedroom;
ii. empty or near-empty bottles of Inositol, a health food supplement sometimes used as a volume enhancer for cocaine;
iii. several small, square pieces of paper, in common use in trafficking in cocaine;
iv. a document, entitled “John’s Price List”, containing several columns of unexplained writings;
v. several jugs of plant food, commonly associated with marijuana grows, but equally useful for legitimate purposes; and
vi. $1350 in cash.
[16] During the search of the appellant’s property, officers noted that the only path leading to the marijuana grow, a path that was both cleared and well-worn, linked the pumpkin patch on the appellant’s property to the grow. The chicken wire at both locations appeared to be of the same pattern, width, consistency and gauge. The wire was not examined scientifically, nor were photographs taken of it.
[17] Near the pumpkin patch, searchers found three jugs of the plant food, “Gen-X Plant Effects”, a mixture often used in growing marijuana. Nearby was a small saucepan apparently stained with the same chemical. A similar white granular substance was visible on the ground within both the pumpkin patch and the marijuana grow. No samples were scientifically tested to determine their chemical composition and similarity, if any.
[18] The plastic bucket that contained tobacco tins and a Mason jar with cannabis resin in them were found on the ground at a place apparently marked by a white plastic bag tied to a tree. The plastic bag could be seen from the appellant’s property.
The Neighbourhood Traffickers
[19] The appellant’s property lay to the west of Andy Jarzabek’s unoccupied property. David Felice owned the property to the west of Jarzabek. Like Jarzabek, Felice did not live on the property. Felice had taken title to his property, a gift from his father, about one month before the police discovered the grow operation at the rear of Jarzabek’s property. In 2003, David Felice was convicted twice for his role in residential marijuana grow operations. Felice did not testify at trial.
The Application for a Post-Conviction Remedy
[20] The trial judge convicted the appellant on June 16, 2005. At the appellant’s request, sentencing proceedings were adjourned three times before sentence was finally imposed on February 9, 2006.
[21] As sentencing proceedings began on February 9, 2006, the appellant’s trial counsel (not Mr. Campbell) applied to re-open the case for the defence or, in the alternative, to have the trial judge declare a mistrial. The only witness who had testified on the appellant’s behalf at trial was a private investigator who had made a video of the area around the side of the grow operation, about a year after the appellant’s arrest.
[22] The appellant’s trial counsel proposed to introduce evidence that tended to show that another person, Joseph Arthur Czernik, was the curator of the grow operation on Andy Jarzabek’s property, not the appellant, as the prosecutor alleged and proved to the satisfaction of the trial judge. Trial counsel also proposed to introduce evidence about the concentration of THC in some of the controlled substances found on or near the appellant’s property. The slight concentration of THC, the appellant proposed to argue, tended to show that the substances of which the appellant was found to be in possession were not kept for the purpose of trafficking.
[23] The appellant proffered two affidavits in support of this post-conviction application. Neither affiant was cross-examined on his affidavit. No viva voce evidence was adduced, nor, for that matter, its introduction even proposed. The record contains no indication about whether either affiant was present when the application was made, or otherwise available to give evidence, if permitted.
[24] In his affidavit, Joseph Arthur Czernik insists that he is the person responsible for “this disorganized grow operation” beside a creek off John Street Road near the appellant’s property. The details of the grow operation, which Mr. Czernik proclaims he provided “without any hesitation and without being scripted”, are that it (the grow operation) included a chicken wire fence about 3.5 feet high.
[25] Mr. Czernik acknowledges that he had received independent legal advice from a lawyer he contacted. The advice he received included the following:
In the presence of his clerk, Angel Palmer, a commissioner for taking oaths, I was advised of my rights to remain silent, further advised that I exercise this right which I refuse to do.
I was further cautioned me [sic] with regards to the consequences of giving false information.
I understand that I can be charged and sentenced with regards to this cultivation and/or public mischief and it has been explained to me that I may face custody with regards to this incident.
Although I have been advised of my rights [sic] to remain silent, I insist on taking responsibility for this disorganized grow operation. I do not feel that Mr. Arabia or anyone else should be held responsible for something that he did not do.
[26] Mr. Czernik instructed his lawyer to forward copies of his affidavit to the prosecutor and to trial counsel for the appellant. The affiant explained why he came forward to accept responsibility for an offence of which the appellant had already been convicted:
- I am facing a medical crisis at this time which has made me have a new outlook on things and I wish to do what is right.
The affiant provided no further details about the “medical crisis” mentioned in his affidavit of early February, 2006.
[27] In the last paragraph of his affidavit, Mr. Czernik expressed his desire to shield himself from liability despite his confession of crime:
- If possible I wish to do so without exposing me to liability by giving this information via the protection of the Canada Evidence Act.
[28] The second affidavit proffered to the trial judge in support of a post-conviction remedy was that of David Bruzzese, trial counsel for the appellant’s co-accused who had been acquitted at the end of the prosecution’s case on a motion for a non-suit. In essence, Mr. Bruzzese recounts information received from the prosecutor in early January 2006, that analyses of cannabis resin in three containers seized near the appellant’s property revealed concentrations of THC of 1.9, 1.4 and less than 1.0 per cent, concentrations substantially lower than what the affiant had been told were “normal amounts” in commercial trafficking. No certificates of analysis were attached as exhibits to the affidavit, nor otherwise made available to the trial judge.
[29] The appellant first sought leave of the trial judge to re-open the case for the defence. Later, trial counsel asked the trial judge to declare a mistrial, and it soon became apparent that a mistrial was counsel’s preferred disposition. Trial counsel for the appellant emphasized that the case was comprised of circumstantial evidence. In the result, the argument continued, the trial judge would have great difficulty in assigning appropriate weight to the proposed evidence because of the finding of guilt the trial judge had already made, and the time that had elapsed after the close of the prosecutor’s case. Counsel also expressed concern about the appearance of fairness if the proposed evidence were to be rejected as unworthy of belief, or as falling short of raising a reasonable doubt about the appellant’s guilt.
[30] To shore up his claim that a mistrial was the appropriate remedy in the circumstances, the appellant’s trial counsel asserted that he would not have consented to the introduction of the report of Detective Constable Popowich, rather would have insisted on cross-examining the officer on the opinion he (the officer) offered about the value of the controlled substances.
[31] The respondent resisted the application at trial on the basis of both principle and content. The remedies sought were discretionary. After adjudication, neither remedy could be claimed as of right, rather should be confined to the rarest of circumstances. The proceedings had already become distended, stretched out by a series of indulgences sought by and afforded to the appellant. The proposed evidence of Czernik was threadbare in detail, hence unworthy if not incapable of belief. It did not qualify as a declaration against penal interest. The evidence about the THC concentration in the cannabis resin samples reflects the concentration in 2006, not 2003 when the substances were seized. Evidence of other indicia of trafficking amply supported the conclusion of the trial judge making diminished concentration of no moment to the result.
The Ruling Of The Trial Judge
[32] The trial judge recognized his authority to permit the defence to re-open its case. Further, he acknowledged that he had the authority to declare a mistrial in a case tried without a jury.
[33] The trial judge considered the application to re-open the defence case first. He focused on prejudice to the prosecution and the effect of re-opening on the expeditious and orderly conduct of the trial.
[34] The trial judge concluded that the proposed evidence of Czernik was relevant, since it had to do with responsibility for a grow operation on property that a trier of fact could conclude was the subject-matter of the prosecution. The absence of particulars, for example about the number and size of the plants and access to the area of the grow operation, diminished the probative value of the proposed evidence to such an extent that it would not be admissible.
[35] The trial judge also concluded that to permit introduction of the proposed evidence would be extremely prejudicial to the prosecution, who were left without any meaningful opportunity to investigate the veracity of Czernik’s claim. Further, to permit re-opening to introduce the evidence would have a profound effect on the orderly and expeditious conduct of the case.
[36] The trial judge regarded his authority to declare a mistrial after adjudication to be substantially circumscribed, available only where proceedings had been infected by procedural error from the outset, or serious misconduct that flawed the entire trial process. In the result, the trial judge dismissed both applications.
THE GROUNDS OF APPEAL
[37] Although his factum raised two other grounds of appeal, Mr. Campbell rests his case for reversal on what he alleges was judicial error in refusing to permit trial counsel to re-open the defence case, or to declare a mistrial as a result of the newly-discovered evidence.
[38] Mr. Campbell begins with a submission that the trial judge applied the wrong test in concluding not to permit the appellant to re-open the defence case. The trial judge applied the standard that governs applications to re-open prior to adjudication on the merits. But that is not this case. A finding of guilt had been made. A different standard applies after adjudication, and that standard governed here.
[39] Mr. Campbell says that the trial judge had to consider first whether, within reasonable limits, the appellant could have obtained the evidence by the exercise of due diligence, so that it could have been offered at trial. While the exercise of due diligence might have uncovered evidence about the potency of the cannabis resin, the Czernik admission was not realistically discoverable in advance of its proffer.
[40] It was also incumbent upon the trial judge, Mr. Campbell urges, to determine whether the evidence was relevant, in other words, that it had to do with a decisive or potentially decisive issue at trial. The trial judge was then required to determine whether the evidence was credible, that is to say reasonably capable of belief, and whether the evidence, if believed, could reasonably be expected to have affected the result at trial, when taken together with the other evidence given at trial. Mr. Campbell submits that the proposed evidence surmounts each threshold, although the evidence about THC concentration would affect the appellant’s liability on one count only, and on a single issue (the purpose of possession). Mr. Campbell acknowledges that the trial judge also had to consider whether the application to re-open was no more than an attempt to reverse a tactical decision made at trial. Absent knowledge of the existence and nature of the evidence, however, no tactical decision imposed a barrier to re-opening.
[41] For the respondent, Ms. Egan acknowledges that the trial judge applied the wrong test in deciding whether to permit the defence to re-open their case after the findings of guilt had been recorded. But, no matter. Application of the correct test would have yielded the same result.
[42] Ms. Egan says that the trial judge, confronted with the applications, had a gatekeeper function to perform. The trial judge had first to decide whether there was an air of reality to the application. The defence bore a heavy onus. The appellant did not testify to deny his participation in the grow operation in the face of a formidable circumstantial case. The proposed evidence was so flimsy that, on its face, it warranted no further consideration, much less admission.
[43] Ms. Egan emphasizes the paucity of detail revealed in the Czernik affidavit. Nothing about the number or size of the plants, nor about access to the area, which must have been frequent in light of the level of attention obviously directed to the crop. A three-year time gap between the discovery of the grow and the acceptance of responsibility. The affiant’s admission does not exclude a role for others. The entire account smacks of fabrication, an attempt to exculpate the appellant without incriminating Czernik.
[44] The respondent further points out that the proposed evidence only relates to two counts in the indictment, leaving untouched and untainted the findings of guilt on the remaining counts.
ANALYSIS
The Governing Principles
[45] The substance of the test a trial judge must apply when deciding whether to permit re-opening of the defence case varies according to the stage of proceedings reached when the application is made. The dividing line is the adjudication of the trial court. One standard applies when the application to re-open is made before adjudication, another prevails thereafter.
[46] The application to re-open the defence case here was made several months after the trial judge had recorded findings of guilt against the appellant. In R. v. Kowall (1996), 1996 CanLII 411 (ON CA), 108 C.C.C. (3d) 481 (Ont. C.A.) leave to appeal refused, [1997] 1 S.C.R. viii, this court articulated the criteria to be applied when application to re-open the defence case is made after adjudication. The court said at pp. 493-4:
The test for re-opening the defence case when the application is made prior to conviction has been laid down by this court in R. v. Hayward (1993), 1993 CanLII 14679 (ON CA), 86 C.C.C. (3d) 193 (Ont. C.A.). However, once the trial judge has convicted the accused a more rigorous test is required to protect the integrity of the process, including the enhanced interest in finality. It seems to have been common ground in this case that the most appropriate test for determining whether or not to permit the fresh evidence to be admitted is the test for admissibility of fresh evidence on appeal laid down in Palmer and Palmer v. The Queen (1979), 1979 CanLII 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.) at page 205 (see R. v. Mysko (1980), 1980 CanLII 2057 (SK CA), 2 Sask. R. 342 (C.A.)). That test is as follows:
(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases …;
(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue at trial;
(3) the evidence must be credible in the sense that it is reasonably capable of belief; and
(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmer criteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial. Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions. Should the trial judge find that the test for reopening has been met, then the judge must consider whether to carry on with the trial or declare a mistrial.
See also, R. v. M. (E.B.) (2002), 2002 BCCA 278, 165 C.C.C. (3d) 39 (B.C. C.A.) at paras. 37-38.
[47] In Kowall, after findings of guilt had been recorded, the appellant sought leave of the trial judge to re-open the defence case to call several witnesses, including the appellant’s recently-discharged counsel. The trial judge heard the evidence proposed for admission, then decided it should not be received. This court upheld the trial judge’s decision, albeit for somewhat different reasons.
[48] It seems apparent in Kowall that had the appellant been successful in his application to re-open the defence case, he would have invited the trial judge to continue the trial and to reconsider the prior findings of guilt in light of the further evidence. Nothing in Kowall suggests that a mistrial was sought as a primary or alternative remedy.
[49] The authorities, like Kowall, which involve the proffer of further evidence after a finding of guilt has been recorded, contemplate two remedies:
i. re-opening of the defence case; and
ii. declaration of a mistrial.
As a general rule, permission to re-open would be followed by setting aside the prior finding(s) of guilt, reception of the further evidence, together with any evidence offered by the prosecutor in reply, the submissions of counsel, and a decision on the adequacy of the prosecution’s proof in light of the new evidence. In some instances, of course, a decision to receive the further evidence might require declaration of a mistrial, or a similar conclusion may be warranted absent a decision on admissibility, for example where the proposed evidence was not disclosed in a timely way by the prosecutor.
[50] Kowall and cases following its lead furnish trial judges with workable criteria the application of which will inform the decision on re-opening. But where re-opening is permitted and a decision made to allow the introduction of further evidence, the trial judge will then be required to determine whether to continue proceedings to verdict, or to terminate them prior to final decision. Kowall and subsequent cases do not explore the preferential ordering of available remedies, or articulate the factors according to which the trial judge is to decide which is the more appropriate remedy.
[51] Trial judges are more likely to encounter mistrial applications before, rather than after verdict or judgment, and when sitting with a jury, rather than in judge alone trials. The underlying circumstances that ground mistrial applications prior to verdict are myriad, but often involve the introduction of inadmissible evidence or the intrusion of some trial or related event that puts trial fairness at risk or compromises the integrity of the decision-making process.
[52] While there may be some uncertainty about the precise standard a judge is to apply in determining whether to declare a mistrial before verdict or judgment, it is well-settled that the authority to declare a mistrial should only be exercised in the clearest of cases. R. v. R. (A.J.). (1994), 1994 CanLII 3447 (ON CA), 94 C.C.C. (3d) 168 (Ont. C.A.) at 174; R. v. Paterson (1998), 1998 CanLII 14969 (BC CA), 122 C.C.C. (3d) 254 (B.C. C.A.) at paras. 93-98. There seems no reason in principle to apply any less rigorous standard to applications for the same remedy made after verdict or judgment.
The Test Applied by the Trial Judge
[53] The trial judge recognized his authority to permit re-opening of the defence case after findings of guilt had been recorded. Unfortunately, for reasons not fully apparent on the record, the trial judge did not apply the correct test in his determination of the application. His findings align with the test applicable before verdict or judgment as described in R. v. Hayward (1993), 1993 CanLII 14679 (ON CA), 86 C.C.C. (3d) 193 (Ont. C.A.) at pp. 197-8.
[54] The trial judge rendered his decision on the application immediately after argument on the motion had concluded. He was satisfied that the proposed evidence was relevant to material issues at trial, but that its introduction was extremely prejudicial to the prosecution, who had little meaningful opportunity, years after the fact, to investigate the authenticity of Czernik’s claim. The trial judge further found that to permit introduction of the evidence would severely disrupt the orderly and expeditious conduct of trial proceedings, already protracted by adjournment requests of the appellant.
[55] Application of the wrong test in deciding whether to permit the appellant re-open the defence case after findings of guilt had been recorded is an error of law. In the result, it becomes necessary to consider whether, on the application of the proper test, there is any reasonable possibility that the verdict would have been different. R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823 at 842.
The Effect of the Error
[56] A helpful port of departure for a discussion of the post-verdict standard expounded in Kowall is that court’s characterization of the post-verdict yardstick as “a more rigorous test … required to protect the integrity of the process, including the enhanced interest in finality”. Kowall at p. 493. In this case, the standard applied by the trial judge was at once wrong and more generous to the appellant than befitted his claim.
[57] The appellant advances no argument that the findings of guilt are unreasonable and cannot be supported by the evidence introduced at trial. Nor does the appellant suggest that the trial judge’s findings of fact and of guilt are tainted by reliance on evidence that ought not to have been received.
[58] Further, the appellant’s trial counsel did not ask the trial judge to hold an admissibility inquiry in connection with the further evidence. Nor was the availability of Czernik, as well his willingness to testify, expanded upon by trial counsel for the appellant. The trial judge was left to decide the application, as are we, on what falls within the four corners of the affidavits filed on the application.
[59] The appellant did not apply to have the affidavits tendered in support of the re-opening/mistrial application admitted as fresh evidence on the hearing of the appeal.
[60] The first consideration under Kowall requires a determination whether the proposed evidence could have been obtained with the exercise of due diligence prior to adjudication at trial. On this issue, as it seems to me, the proposed evidence of Czernik yields a different response than that of Bruzzese.
[61] The Czernik affidavit fails to disclose how it was that Czernik came forward with his mea culpa, only that he did. The date on which he sought independent legal advice was January 12, 2006, about seven months after the findings of guilt had been recorded. Nothing suggests any prior connection of the appellant with, or knowledge of the affiant. I am satisfied, on the record as we have it, that Czernik’s evidence could not have been obtained by the exercise of due diligence prior to adjudication.
[62] Admissibility set to one side, the substance of the Bruzzese affidavit has to do with the concentration of THC in cannabis resin seized under warrant on September 8, 2003. Certificates of analysis of items seized were completed by the first anniversary of the seizure and served on trial counsel for the appellant, who refused service, on October 18, 2004. Typically, the certificates of analysis recite only that the substances analyzed contain a specified controlled substance. The certificates do not mention the concentration of THC in the relevant samples, but it cannot be gainsaid that had trial counsel considered the concentration of THC of significance, he could easily have requested the necessary analysis, as counsel for the co-accused did later. Evidence about THC concentrations could have been obtained with the exercise of due diligence at trial.
[63] The second requirement of Kowall is that the evidence proposed for reception during the re-opened defence case must be relevant, in other words, the evidence must be probative of a decisive or potentially decisive issue at trial.
[64] The core issue at trial was complicity. The prosecutor asserted it. The appellant denied it. According to the prosecutor, the appellant was the person in charge of the grow operation and in possession of the other controlled substances, some for the purposes of trafficking, as well as of the proceeds of his illicit commerce in those substances. The appellant denied participation by challenging the adequacy of the prosecution’s proof.
[65] Evidence is relevant if it is probative of the fact its proponent seeks to establish by its introduction because of its natural common sense connection with that fact. While it is correct to say that direct evidence can never be irrelevant, if offered to establish a provable fact, the fact it is offered to prove, here responsibility for a specific grow operation, must be the fact it does prove.
[66] Czernik’s affidavit describes a grow operation for which he claims responsibility by two characteristics: location and security precautions. The grow is by a creek off John Street Road near the appellant’s property. And the operation is surrounded by a chicken wire fence, about three and one-half feet high.
[67] The content of Czernik’s affidavit is undernourished, exiguous in meaningful detail. The description offered of the security around the grow operation scarcely ascends beyond the generic or commonplace. Likewise, the affiant’s portrayal of the location of the grow operation would be readily ascertainable by anyone familiar with the area in which the appellant lived.
[68] The trial judge was concerned about the relevance of the contents of the Czernik affidavit because of the paucity of detail and the lack of any real nexus between its content and the grow operation with which the appellant was charged. But the trial judge did not reach a firm conclusion on the issue of relevance, rather assumed the evidence to be relevant and moved on to other considerations that caused him to reject the application to re-open.
[69] The threshold for relevance is a modest one. It is enough that an item of evidence proffered for reception could reasonably show that the fact sought to be established by its introduction is slightly more probable (or improbable) than the fact would be without the evidence. 1 McCormick on Evidence (6th ed.) at § 185, p. 733. Evidence is relevant if, as a matter of logic and common experience, it renders the existence or non-existence of a material fact in issue more or less likely. R. v. Truscott (2006), 2006 CanLII 60337 (ON CA), 213 C.C.C. (3d) 183 (Ont. C.A.) at para. 22; R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 108 C.C.C. (3d) 310 (Ont. C.A.) at pp. 323-24; and R. v. B. (L.) (1997), 1997 CanLII 3187 (ON CA), 116 C.C.C. 481 (Ont. C.A.) at pp. 492-93.
[70] The relevance of the evidence contained in the Czernik affidavit, sworn in 2006, is entirely dependent on its reference to “a grow operation” as the operation allegedly maintained by the appellant in 2003. The account is threadbare: location and security only. Nothing about access, means of supervision, size of the crop, and more importantly, the period during which Czernik claimed he tended to the crop.
[71] Relevance alone will not be enough to warrant re-opening of the defence case. What is proposed for reception must be credible, that is to say reasonably capable of belief, and admissible in accordance with the adjective law of evidence.
[72] The trial judge made no specific finding about the credibility of the proposed evidence, although he did make some observations about the lack of detail apparent in Czernik’s affidavit, comments that could be taken as references to relevance or credibility.
[73] This is not a case in which the details provided in Czernik’s affidavit recite facts within the peculiar knowledge of the curator of the specific grow operation on Jarzabek’s property. See, by comparison, R. v. Wildman, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311; R. v. Blastland (1985), 81 Cr. App. R. 266 (H.L.). Quite to the contrary, the contents of Czernik’s affidavit scarcely breaches the surface of a shallow pool of generality.
[74] The trial judge, now this court, is left to wonder under what circumstances Czernik came forward, how he learned about the appellant’s conviction, what details of the underlying circumstances came to his acquaintance, for that matter his antecedents and connection to the appellant and his neighbours, no strangers themselves to illicit commerce in controlled substances.
[75] On the application to re-open the defence case, trial counsel for the appellant does not appear to have tendered Czernik as a witness who would give evidence under oath on an inquiry into admissibility. Nothing is said that Czernik’s availability or willingness to testify. Czernik’s principal purpose disclosed in the affidavit appears to be to ensure that the appellant avoids conviction, and that Czernik himself is not exposed to liability because he provided information admitting his guilt in the affidavit. _
[76] In the absence of Czernik as a witness, it is at best extremely doubtful whether his affidavit could be admitted as an exception, traditional or principled, to the hearsay rule. The penal interest exception appears inapplicable on vulnerability grounds. R. v. O’Brien, 1977 CanLII 168 (SCC), [1978] 1 S.C.R. 591; R. v. Demeter, 1977 CanLII 25 (SCC), [1978] 1 S.C.R. 538 affirming (1975), 1975 CanLII 685 (ON CA), 25 C.C.C. (2d) 417 (Ont. C.A.). Likewise, the requirement of reliability appears unsatisfied, even if necessity has been met. R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; R. v. Blackman, [2008] S.C.C. 37.
[77] The affidavit of Bruzzese contains relevant information, if we assume the concentration of THC in an illicit substance has a bearing on its merchantability in a market not known for quality control inspections. But the affidavit represents at least second-hand hearsay: an analyst apparently told the prosecutor, who told the affiant, who repeats the information received to prove its truth. Credibility is of no moment when the evidence is itself inadmissible.
[78] Evidence that is inadmissible, or if admissible, not reasonably capable of belief, could not reasonably be expected to have affected the result at trial.
[79] The prosecution’s case consisted entirely of circumstantial evidence. The appellant defended on the basis that the cumulative effect of the prosecution’s evidence did not satisfy the standard of proof required in criminal cases. The appellant did not testify, hence explain the inculpatory facts brought against him. The well-defined pathway from his property to the grow operation. His nocturnal visits to the back of the property. The similar enclosures around the grow operation and the pumpkin patch. The white plastic bag, visible from his property, marking the location of the containers of controlled substances. The packaging and other paraphernalia commonly associated with illicit commerce in controlled substances.
[80] The assessment mandated by the fourth requirement of the Palmer test adopted in Kowall envisages an assessment of the impact of the proposed evidence on the result at trial. That assessment, at least as it seems to me, need only be performed in connection with evidence that otherwise satisfies the requirements of Kowall adopted from Palmer. To hold otherwise would mean that evidence not reasonably capable of belief, or evidence excluded by an admissibility rule, would nonetheless qualify for assessment under the fourth requirement, an absurd result.
[81] In my respectful view, neither the Czernik affidavit nor the affidavit of Bruzzese should have engaged the trial judge’s discretion to permit re-opening of the defence case or to declare a mistrial.
[82] Trial counsel for the appellant did little beyond proffer of the affidavits to assist the trial judge in his task. Counsel did not adduce any evidence to explain how it was that Czernik came forward, months after the findings of guilt, to accept responsibility for an offence committed almost three years earlier. Nothing was said of any connection between Czernik and the appellant, of Czernik’s whereabouts, more importantly of his availability and willingness to testify. No effort was extended to elaborate upon the bare acceptance of responsibility acknowledged in the affidavit, to demonstrate unique knowledge of the circumstances of the offence committed.
[83] Trial counsel for the appellant was also content to propose the evidence of counsel for the former co-accused to establish the relative impotency of the substances said to be offered for sale. The more obvious source for this information would have been certificates of analysis, or at least a report of the analyses, rather than the double hearsay included in Bruzzese’s affidavit.
[84] No application was made to adduce fresh evidence on appeal.
CONCLUSION
[85] The trial judge applied the wrong test in deciding whether to permit re-opening of the defence case or to declare a mistrial after recording findings of guilt. The application of the correct test, in my respectful view, would yield the same result.
[86] For these reasons, I would dismiss the appeal.
Signed: “David Watt J.A.”
“I agree R.G. Juriansz J.A.
“I agree J. MacFarland J.A.”
RELEASED: “JMacF” July 25, 2008