Court File and Parties

Date: June 16, 2018

Court File No.: Toronto Region, Old City Hall Court

Ontario Court of Justice

Between:

Her Majesty the Queen

Ms. Helen Song for the Crown

— And —

Ida Caruso

Ms. Karen McArthur for the Defendant

Decision

K.J. Caldwell J.:

Background

[1] On September 19, 2017, I found Ms. Caruso guilty of impaired driving, drive over 80, and dangerous driving. I found her not guilty of fail to remain. I provided written reasons at that time.

[2] On December 19, 2017, I dismissed a section 11(b) delay application brought by the defense post conviction. Ms. Caruso had been charged on December 4, 2011. Almost six years had passed by the time I found Ms. Caruso guilty. Despite the lengthy passage of time, I found that the application was one of the "least meritorious" I had ever heard given the actions of the defense. Written reasons were provided.

[3] After my dismissal of the section 11(b) application, Ms. Caruso discharged her counsel and retained Ms. McArthur. Ms. Caruso now requests that the matter be re-opened and the proceedings potentially stayed or mistried. I requested that Ms. McArthur outline the basis for the defense request – essentially outline the defense case at its highest – and I would then determine if it was necessary to proceed further with the argument and hear further from Ms. Song on behalf of the Crown. There is a pressing need to finalize this matter given that 6 ½ years have passed since the date Ms. Caruso was arrested.

[4] I have reviewed the summary of the defense argument and respectfully find that there is no merit to the defense contention that the matter should be re-opened. I will not deal with the issue of a stay as the basis was unclear from the defense summary. I am inferring that it was an alternative to the mistrial option.

[5] My understanding is that the defense wishes the case re-opened to allow certain evidence to be called and then a possible reconsideration of my verdict to follow or, alternatively, to establish ineffective assistance of previous counsel with a mistrial as a remedy.

[6] The evidence to be called upon re-opening is as follows:

• Re-address the issue of sexual assault including re-calling Mr. David Martel and calling an expert witness to testify to the impact of sexual assault on a victim including a flight response and blocking the memory of the sexual assault;

• Re-call Mr. David Martel regarding his provision of Advil to Ms. Caruso;

• Call previous counsel Mr. Frank Piccin to establish ineffective assistance of counsel relating to the sexual assault issue and the issue of Ms. Caruso's alleged confusion during her trial evidence.

Jurisdiction to Grant a Mistrial Post Conviction

[7] I accept that I have jurisdiction to grant a mistrial post conviction in order to prevent a miscarriage of justice. The Ontario Court of Appeal in R. v. J.A. reiterated this authority but the Court also emphasized that "such authority should be exercised only in exceptional circumstances and in the clearest of cases".

Sexual Assault and Potential Expert Evidence

[8] Ms. Caruso went to a bar on the night she drove while impaired. She contended at trial that a bartender, Mr. David Martel, spiked one of her drinks with an unknown substance in order to sexually assault her at a later point. Ms. McArthur contends that Mr. Piccin, trial counsel, missed the mark and that the focus, or an alternative focus, should have been on the issue of sexual assault absent any potential spiking of Ms. Caruso's drinks and the "flight, fight or shut down response" that such an assault would trigger. It is contended that Ms. Caruso then drove her car while impaired as a result of this sexual assault. Ms. McArthur would call an unnamed expert on Ms. Caruso's behalf to outline this response and its impact on Ms. Caruso's driving.

[9] The expert evidence has no potential relevance unless a sexual assault occurred. Mr. Piccin did focus a great deal of attention on the potential spiking of drinks but he also focussed much attention on the issue of sexual assault. Mr. Martel was questioned rigorously and extensively over a two-day period with the focus on his behaviour towards Ms. Caruso. I also read the text messages between Mr. Martel and Ms. Caruso, and considered Ms. Caruso's attendance for a medical examination post-arrest, and her bruised thigh and ripped pantyhose.

[10] In my September 19, 2017 judgment, I stated the following:

Mr. Martel struck me as an honest, credible and reliable witness who attended this trial willingly at the request of the defense because he thought that he could assist Ms. Caruso. I don't think he was aware of Ms. Caruso's belief that he had drugged her and/or potentially sexually assaulted her. I also don't think that he ever became aware of her belief despite the nature of the questions asked of him (at para. 20).

I find as a fact that Mr. Martel drove the car to the underground because he was hoping that he would convince her to spend the night at his apartment but I reject the suggestion that he sexually assaulted her and ripped her pantyhose in the process. I find as a fact that though he was disappointed and irritated by her refusal to come upstairs, matters ended at that point. He left to go to his apartment and she remained in the car, choosing to drive off shortly afterwards (at para. 23).

Further, I reject her suggestion that her ripped pantyhose and the bruise on the back of her leg below her buttock occurred as a result of a sexual assault. I find that the reasonable inference in this case is that the ripped pantyhose and the bruise resulted from her serious car crash (at para. 39).

[11] The issue of sexual assault was thoroughly canvassed at trial. I find that there is no basis to re-open the trial to re-examine Mr. Martel on this issue or to re-open in order to question Mr. Piccin about his handling of this issue.

[12] It follows that I find there is no basis to re-open in order to tender expert evidence on this issue.

Mr. Martel's Provision of Advil to Ms. Caruso

[13] Mr. Martel indicated in his text messages to Ms. Caruso that he gave her Advil that night. Ms. McArthur wishes to question Mr. Martel further concerning the Advil, and contends that the drug may not have been Advil but may have been a different, more insidious, drug. There is absolutely no basis beyond sheer speculation to contend that the drug was other than Advil and I find there is no basis to re-open to question Mr. Martel on this issue.

[14] It is also contended that "Mr. William-Martel (sic) had no way of knowing what adverse impact the administration of Advil could have upon Ms. Caruso". Again, without more, I find no basis to re-open to address the Advil issue.

Ms. Caruso's Alleged Confusion During Cross-Examination

[15] Ms. Caruso stated partway through her cross-examination that she had become confused in her evidence that she had given under cross on a previous date and that the confusion stemmed from the effects of a drug that she was taking during her pregnancy.

[16] I am sympathetic towards Ms. Caruso regarding the stresses of pregnancy and I accept that she may have been dealing with various issues regarding her health and that of her then unborn child.

[17] This case was adjourned many months, however, to allow for the possibility of expert evidence from one of her doctors regarding the effects of the drug she said she was taking. Ultimately no evidence was tendered.

[18] I appreciate that part of Ms. McArthur's application to re-open is based upon a desire to call Mr. Piccin to examine him about his handling of this issue and a potential ineffective assistance of counsel argument.

[19] I have no idea how diligent Mr. Piccin and Ms. Caruso were in pursuing this evidence. I note, however, that Ms. Caruso's contention throughout was that she remembered very little of what transpired that night. I made negative findings regarding Ms. Caruso's credibility and I will not repeat the reasons for those findings. This was not a case that relied heavily upon Ms. Caruso's evidence, however, given her contention that she remembered very little of the events that evening. She was very consistent in her evidence regarding that memory loss. Her lack of memory meant that her evidence at trial, regardless of any alleged confusion, was of very limited relevance. I therefore decline the application to re-open to examine Mr. Piccin on this issue or tender any further evidence on this issue.

[20] The matter now must proceed to sentence. It is a given that post-sentence Ms. Caruso can determine if she wishes to proceed to appeal.

Released: June 16, 2018

K.J. Caldwell J.

Footnotes

[1] R. v. Lessard, 30 C.C.C. (2d) 70 (Ont. C.A.) at pg. 73; R. v. Griffith, 2013 ONCA 510 at paras. 12-14; R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857 at paras. 74-75; R. v. Khairi, 2015 ONCA 279 at para. 11; R. v. Downes, 2015 ONCA 674 at paras. 6-8

[2] R. v. J.A., 2015 ONCA 754 at paras. 24-25