R. v. McAnespie, [1993] 4 S.C.R. 501

Her Majesty The Queen Appellant

v.

Richard Brian McAnespie Respondent

Indexed as: R. v. McAnespie

File No.: 23674.

1993: December 10.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Procedure ‑‑ Evidence ‑‑ Non‑disclosure ‑‑ Due diligence ‑‑ Statement disclosed after conviction but before sentencing ‑‑ Counsel for defence not bringing matter at earliest opportunity to attention of trial judge and not having information disclosed during sentencing proceedings ‑‑ Trial judge still seized of trial and had discretion to reopen trial or order mistrial.

Criminal law ‑‑ Procedure ‑‑ Evidence ‑‑ Fresh evidence ‑‑ Due diligence ‑‑ Respondent failing to satisfy criterion of due diligence ‑‑ Due diligence to be considered with other factors ‑‑ Due diligence requirement not overborne by other factors ‑‑ New evidence ought not to have been admitted.

Cases Cited

Referred to: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326; Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759.

APPEAL from a judgment of the Ontario Court of Appeal (1993), 1993 CanLII 14716 (ON CA), 64 O.A.C. 70, 82 C.C.C. (3d) 527, allowing an appeal against convictions by Taliano J. and ordering a new trial. Appeal allowed.

Rick Libman, for the appellant.

Martin Kerbel, Q.C., for the respondent.

The judgment of the Court was delivered orally by

Sopinka J. ‑‑ In our opinion, the majority of the Court of Appeal erred in directing a new trial. It did so on two grounds:

(1) non‑disclosure of the information contained in the victim's impact statement;

(2) the information in the impact statement was fresh evidence, which, if it had been available at trial, might have affected the verdict.

With respect to (1), we are of the opinion that although disclosure of the information ought to have been made earlier counsel for the respondent failed to bring this to the attention of the trial judge at the earliest opportunity as required. In R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, in referring to this obligation, we stated at p. 341:

Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered.

We agree with Labrosse J.A., dissenting, that the trial judge was still seized of the trial and had the discretion to reopen the trial proceedings or to order a mistrial.

In this case, counsel not only did not seek to bring the matter to the attention of the trial judge but made a tactical decision not to have the information disclosed in the sentencing proceedings. In these circumstances, a new trial ought not to have been ordered on this ground.

With respect to (2), applying the factors in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, in our opinion the proposed evidence ought not to have been admitted. Specifically, we are of the opinion that the respondent failed to satisfy the criterion of due diligence. While this factor is not applied strictly in criminal cases and is not to be considered in isolation, the strength of the other factors is not such that failure to satisfy the due diligence requirement in this case is overborne by the other factors.

Accordingly, the appeal is allowed and the judgment of the Court of Appeal is set aside. The matter is remitted to the Court of Appeal for determination of the respondent's submission of alleged unreasonable verdict and the respondent's appeal against sentence.

Judgment accordingly.

Solicitor for the appellant: Crown Law Office ‑‑ Criminal, Toronto.

Solicitor for the respondent: Martin Kerbel, Toronto.