COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nicevski, 2013 ONCA 435

DATE: 20130621

DOCKET: C53617

Laskin, Simmons and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Nicevski

Appellant

Mark Halfyard and Daniel Brown, for the appellant

Kim Crosbie, for the respondent

Heard: June 18, 2013

On appeal from the conviction entered on February 10, 2011 by Justice Edwin B. Minden of the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1] The main issue on this appeal is whether the proposed fresh evidence of the toxicologist is admissible. In our view, it is in the interests of justice to admit the fresh evidence. Although this evidence was available at trial we accept defence counsel’s affidavit that his failure to lead this evidence was an oversight, not a tactical decision. That the due diligence requirement was not met does not, in this case, preclude the admission of the fresh evidence.

[2] Thus, the admission of the fresh evidence turns on the fourth Palmer criterion: whether the evidence, when taken with the other evidence adduced at trial, could reasonably be expected to have affected the verdict. We think the appellant has satisfied this criterion. The fresh evidence is independent, objective evidence that is capable of raising sufficient concern about the complainant’s credibility that it may well have affected the finding of guilt.

[3] Accordingly, the fresh evidence is admitted. Based on the fresh evidence, the appeal is allowed. The conviction is set aside and a new trial is ordered.