Court of Appeal for Ontario

CITATION: R. v. John, 2014 ONCA 631

DATE: 20140912

DOCKET: C57704

BEFORE: Cronk, Gillese and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darren John

Appellant

COUNSEL:

Darren John, in person

Heather Pringle, duty counsel

Christine Bartlett-Hughes, for the respondent

Heard and released orally: September 10, 2014

On appeal from the convictions entered on September 11, 2013 by Justice Lesley M. Baldwin of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals his convictions for two counts of fraud under $5,000 in part on the ground that the trial judge erred by dismissing his post-conviction application, brought at his sentencing hearing, to reopen his trial to introduce videotape evidence that he claims exonerates him from the crimes alleged.

[2] The appellant says that the videotape reveals that the real perpetrator of the frauds, whose picture was captured on surveillance tape footage of the premises where the crimes occurred, is someone other than the appellant.

[3] The trial judge did not review the videotape in question. The appellant, who was self-represented at the relevant time at trial, has advanced an explanation for why he did not seek to introduce the videotape at trial. His explanation finds some support in the trial record.

[4] On consent of the Crown, we reviewed the videotape in question. The Crown concedes, properly in our view, that if we conclude that there is a reasonable possibility, based on the videotape, of misidentification of the perpetrator in this case, a new trial is required to prevent a possible miscarriage of justice. Having viewed the videotape and the still photographs from the crime scene, we do so conclude.

[5] In our view, this is not one of those extraordinary cases in which a stay of criminal proceedings is warranted. Accordingly, the conviction appeal is allowed and a new trial is ordered. Of course, it will be for the judge presiding at the new trial to determine the admissibility of the videotape relied on by the appellant and, if admitted, its significance.

[6] In these circumstances, it is unnecessary to address the appellant’s sentence appeal.

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”

“M. Tulloch J.A.”