Court File and Parties
Ontario Court of Justice
Date: 2019-07-15
Court File No.: Toronto 4817 998 18-70010807-01
Between:
Her Majesty the Queen
— and —
James Sears and Leroy St. Germaine
Before: Justice Richard Blouin
Ruling on an Application to Re-open given on July 15, 2019
Counsel
Ms. Jamie Klukach ................................................... counsel for the Crown
Mr. Robin Flumerfelt .............................................. counsel for the Crown
Ms. Erica Whitford ................................................. counsel for the Crown
The defendant James Sears ....................................... on his own behalf
BLOUIN, J.:
[1] Mr. Sears makes application, four months after findings of guilt were made by this Court and four days before judgment on sentence, to re-open the trial and/or have a mistrial declared.
[2] In the last month I have received written submissions from Mr. Sears, setting out his reasons for this application. Those reasons, including various constitutional challenges, were chronicled in 79 pages, which was made Exhibit 31A. The Crown responded, in 15 pages, which was made Exhibit 31B, and then the defendant provided a 29-page rebuttal, which was made Exhibit 31C.
[3] In an application such as this one, the governing principles are set out in R. v. Arabia, 2008 ONCA 565, 2008 OJ No. 2960. There are other Court of Appeal cases, but this is the most recent. In Arabia, Justice Watt sets out the principles when the application to re-open the defence case is made before sentence is rendered, but after adjudication. At page 46, he writes:
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), 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), 50 C.C.C. (2d) 193 (S.C.C.) at page 205. The 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, it must be reasonably capable of belief, and;
(4) if believed, it could reasonably have been expected to have affected the result in the trial.
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.
[4] I am of the view that Crown has summarized succinctly Mr. Sears' application at paragraph three of their submissions. And at paragraph three, it is indicated that "The defendant seeks to re-open his defence to advance arguments and evidence in relation to the following issues, arguing that:
His trial counsel was ineffective in his representation of the defendant, in particular by, (a), failing to call a defence – when there exist statutory defences, and (b), in his conduct of the sentencing hearing.
The Crown's election gave rise to an abuse of process.
His Honour's conduct of the trial and sentencing proceedings gave rise to an apprehension of bias.
Section 319(2) unjustifiably limits the right to freedom of expression under s. 2(b) of the Charter.
He was denied a right to a trial by a jury, under s. 11(f) of the Charter. And finally,
The reasons for judgment are inadequate."
[5] The Crown continues in paragraph four of their submissions:
It's the position of the Crown that the issues raised by the defendant are lacking in merit. He has failed to demonstrate that they could reasonably be expected to have affected the verdicts. Further, he has failed to establish that denying him the opportunity to adduce evidence and make additional submissions in relation to sentence would give rise to unfairness. The defendant's application should be dismissed.
I agree with that assessment, with the possible exception of 1(a) above: the failure to call a defence.
[6] In this case, Mr. Sears pleaded not guilty, and it is clear that he, not Mr. Embry, made the decision to not testify. There is an argument that after the defendant decides to plead guilty or not guilty, and decides whether to testify or not, the rest is in the hands of counsel to conduct the case in the most professional manner in support of the client's interest. However, my overarching obligation is to ensure there is a fair trial here.
[7] At this stage, I find I cannot determine the dual issues outlined in Arabia, of due diligence and tactical decisions, unless I have heard from Mr. Sears and Mr. Embry. I cannot determine other issues, as also outlined in Arabia, of relevance, whether the evidence is credible, and the possible effect on the result, unless I have some proffer of what that evidence is from Mr. Sears. He needs to list the witnesses he proposes to call, if I allowed the case to be re-opened, the qualifications to give that evidence, especially in the case of an expert witness, and the anticipated testimony of each witness.
[8] I have looked at two cases that deal with similar applications. One is R. v. Khan, 2015 OJ 1680, another is R. v. XXS, 2006 OJ No. 5. In both of these cases, the application the defendant is making here was engaged by the trial judge to ensure there was no miscarriage of justice. This is what I feel I must do here. Therefore, I am allowing Mr. Sears an opportunity to satisfy me that this is an exceptional case and that I should re-open the case or declare it a mistrial, as he requests, at this latest of stages. I am prepared to at least look at the application by way of affidavit evidence from both parties.
Released: July 15, 2019
Signed: "Justice Blouin"