Court of Appeal for Ontario

Citation: R. v. Connelly, 2011 ONCA 310 Date: 2011-04-20 Docket: M38868 (C48793)

Between: Her Majesty the Queen (Respondent) and Callum Connelly (Appellant)

Before: LaForme, Rouleau and Karakatsanis JJ.A.

Counsel: Matthew Gourlay, for the appellant Deborah Krick, for the respondent

Heard and released orally: April 11, 2011

ENDORSEMENT

[1] On February 28, 2008, Mr. Connelly was convicted of robbery and sentenced to five months imprisonment in addition to at least 50 days pre-trial custody and two years probation.

[2] On March 16, 2009, Mr. Connelly’s inmate appeal was heard by this court. This appeal against conviction was on the basis of an alleged violation of his right to counsel. The appeal was subsequently dismissed in written reasons by this court released on May 20, 2009.

[3] On July 24, 2009, the Ministry of the Attorney General, Criminal Law Division, notified Mr. Connelly’s trial counsel that a vetted jury list had been made available to the Crown at trial but that list had not been disclosed to the defence. Mr. Connelly moved to re-open his appeal and at the September 2010 inmate sittings, Justice Moldaver appointed counsel under s. 684 of the Criminal Code. Mr. Connelly is now represented by counsel and brings this motion to re-open his appeal.

[4] At its core, this is an issue about non-disclosure. The Crown was in possession of a partially vetted jury panel list, which provided the Crown with some information about some prospective jurors that the defence did not have.

[5] We have doubts as to whether there is jurisdiction for this court to re-open Mr. Connelly’s appeal, given that his appeal has already been heard on the merits and dismissed. In any event, we can find no reason to have a concern that in this case a miscarriage of justice arose from the police database checks performed on prospective jurors. While the non-disclosure of this information is troubling, it had no impact on the jury’s impartiality and independence.

[6] In sum, Mr. Connelly has not demonstrated, on a balance of probabilities, that the failure to disclose the information prejudiced his right to make full answer and defence. That is, he has failed to satisfy this court that there is a reasonable possibility that the non-disclosure affected the outcome at trial, or the overall fairness of the trial process. Therefore, the motion is denied.

“H.S. LaForme J.A.”

“Paul Rouleau J.A.”

“Karakatsanis J.A.”