R. v. Tortone, [1993] 2 S.C.R. 973

Dante Tortone Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Tortone

File No.: 23123.

1993: April 28; 1993: September 2.

Present: Lamer C.J. and Sopinka, Gonthier, Cory and Major JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Trial ‑‑ Fairness ‑‑ Narcotics charges -- Accused's trial conducted intermittently over eight‑month period ‑‑ Trial judge stating that he had seriously considered declaring a mistrial but had decided not to do so because that would cause undue hardship to accused ‑‑ Accused acquitted on certain charges ‑‑ Acquittals overturned by Court of Appeal and new trial ordered ‑‑ Whether trial judge erred in not declaring mistrial.

Criminal law -- Narcotics -- Accused acquitted on certain charges ‑‑ Acquittals overturned by Court of Appeal and new trial ordered ‑‑ Whether trial judge erred in failing to consider whether Crown had proved accused guilty of one of charges.

The accused was charged with various drug trafficking offences, and with possession of the proceeds of narcotic trafficking and laundering such proceeds. These latter charges included counts involving conduct prior to July 1989, counts relating to early July 1989, and one count alleging that the accused had been in unlawful possession of the proceeds of narcotic trafficking between April and July 1989 (the "global count"). The trial was conducted intermittently over almost eight months. At the conclusion of the Crown's case, the accused moved to have the charges dismissed. In oral reasons dismissing the motion, the trial judge said he had had difficulty dealing with the case because of the intermittent nature of the trial proceedings and had had to rely entirely on his notes. Three months later he convicted the accused of the trafficking charges, but acquitted him of the proceeds‑related charges. In rendering his verdict the trial judge again commented on the sporadic nature of the proceedings. He said he had seriously considered declaring a mistrial because the trial proceedings were "extremely unsatisfactory", but had decided not to because that would cause undue hardship to the accused. The Court of Appeal allowed the accused's and the Crown's appeals and ordered a new trial on all of the charges. It was satisfied on the basis of the trial judge's conclusions as to his difficulties in dealing with the case that a mistrial should have been declared. It also found that the trial judge erred in his assessment of the proceeds-related charges, by seeming to proceed on the basis that the Crown had to prove the actual amount of money in the accused's possession which was the proceeds of narcotic trafficking. The accused appealed to this Court from the Court of Appeal's decision to order a new trial on the charges of which he was acquitted.

Held (Gonthier and Cory JJ. dissenting in part): The appeal should be allowed in part.

Per Lamer C.J. and Sopinka and Major JJ.: The trial judge was correct in not declaring a mistrial on the charges of which the accused was acquitted. The Court of Appeal's conclusion that the trial judge must have had the same difficulty with the evidence at the time of rendering his verdict as he had when dealing with the nonsuit motion does not necessarily follow, but is based on conjecture. The trial judge may have improved his understanding of the evidence in the intervening three months. He could have refreshed his memory by a more thorough review of his notes, and may have seen a transcript. He may also have gained renewed appreciation of the evidence from the closing submissions of counsel.

The Court of Appeal erred in overturning the trial judge's acquittals on the pre‑July and July proceeds counts. While different inferences of fact may have been drawn by another judge from the findings of fact at the trial, it is not open to an appellate court, on a Crown appeal from an acquittal, to interfere with the inferences of fact drawn by the trial judge simply because the appellate court would draw different inferences. The acquittal by the trial judge on the global count cannot be affirmed, however, in light of his finding that some money must have come into the accused's possession as a result of trafficking in cocaine. It was open to the trial judge to conclude that although he could not identify which of the transactions particularized in the various proceeds counts involved the proceeds of narcotic trafficking, the Crown had proved beyond a reasonable doubt that at least one of those transactions involved the proceeds of narcotic trafficking. The accused would then have been convicted on the global count. The trial judge's failure to direct his mind to this issue was an error of law.

Per Gonthier and Cory JJ. (dissenting in part): There is no reason to interfere with the Court of Appeal's disposition that all the acquittals should be set aside. While the trial judge did not state the specific nature of the difficulty he was having at either the time of the nonsuit motion or subsequently, it is nevertheless clear that the intermittent nature of the hearings had caused him to conclude that he had not been able to acquire a satisfactory appreciation of the complex factual record which was required to decide the matters before him on a sound basis. The persistence of a difficulty is underlined by his reference to it in the strongest terms both when dealing with the motion and three months later by way of preface to his reasons for verdict. The suggestion that the trial judge's recollection improved with the additional lapse of time between the nonsuit motion and the rendering of a verdict is belied by his comment at the latter time that the extended and sporadic nature of the trial had been so extremely unsatisfactory that he gave serious consideration to declaring a mistrial and that his reason for not doing so was undue hardship to the accused. This reason cannot justify rendering a verdict on the basis of a trial that is not fair, be it a conviction or an acquittal. A proper remedy in the event a fair trial cannot be held within a reasonable delay is a stay of proceedings. The fact that the trial judge gave reasons referring to the evidence is not sufficient to allay the concern as to the fairness of the trial. His comments indicate that he did not consider that the fact-gathering process had provided him with an adequate basis for a due consideration of the evidence. There was a variety of testimony and evidence in this case which was necessarily subject to an assessment regarding credibility. In these circumstances, the presence of a statement by the trial judge that the fact‑finding process was inadequate is sufficient grounds for a declaration of a mistrial.

Cases Cited

By Major J.

Referred to: R. v. Morin, 1992 40 (SCC), [1992] 3 S.C.R. 286; R. v. C. (R.), 1993 142 (SCC), [1993] 2 S.C.R. 226; Schuldt v. The Queen, 1985 20 (SCC), [1985] 2 S.C.R. 592.

By Gonthier J. (dissenting in part)

R. v. Morin, 1992 40 (SCC), [1992] 3 S.C.R. 286.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, s. 675.

Narcotic Control Act, R.S.C. 1970, c. N‑1, ss. 11.1 [ad. 1988, c. 61, s. 13], 11.2 [idem].

Narcotic Control Act, R.S.C., 1985, c. N‑1, ss. 19.1 [ad. c. 42 (4th Supp.), s. 12], 19.2 [idem].

APPEAL from a judgment of the Ontario Court of Appeal (1992), 1992 7580 (ON CA), 9 O.R. (3d) 161, 75 C.C.C. (3d) 50, 57 O.A.C. 13, setting aside the accused's acquittals on narcotics proceeds charges and ordering a new trial. Appeal allowed in part, Gonthier and Cory JJ. dissenting in part.

Marc Rosenberg, for the appellant.

D. D. Graham Reynolds, Q.C., and Theresa M. Brucker, for the respondent.

//Major J.//

The judgment of Lamer C.J. and Sopinka and Major JJ. was delivered by

Major J. -- The appellant was charged with: one count of conspiracy to traffic in a narcotic; two counts of trafficking in narcotics; two counts of possession of narcotics for the purpose of trafficking; ten counts of possession of the proceeds of narcotic trafficking, contrary to s. 11.1 of the Narcotic Control Act, R.S.C. 1970, c. N-1 (now s. 19.1); and nine counts of laundering the proceeds of narcotic trafficking, contrary to s. 11.2 (now s. 19.2) of the Narcotic Control Act. He was convicted in the Ontario Provincial Court, Criminal Division of the conspiracy, trafficking and possession of narcotics charges, but was acquitted of the proceeds-related charges.

The appellant and the respondent each appealed to the Ontario Court of Appeal, which allowed both appeals and ordered a new trial on all of the charges: (1992), 1992 7580 (ON CA), 9 O.R. (3d) 161, 75 C.C.C. (3d) 50, 57 O.A.C. 13. The appellant now appeals to this Court as of right from that part of the Court of Appeal's judgment which directed a new trial on the charges of which he was acquitted. The respondent has not cross-appealed from the Court of Appeal's decision to order a new trial on the charges of which the appellant was convicted.

I. Facts

The Crown's case against the appellant relied primarily upon police surveillance of the appellant and an alleged co-conspirator, Alejandro Manolio. The trial judge found that the police surveillance evidence of June 17, 1989 did not advance the Crown's case, but that the surveillance evidence of June 19, 20, and 28, 1989, and of July 3 to 7, 1989, established a relationship between the appellant and Manolio.

There was further surveillance evidence which showed an association between the appellant and two men, Zevallos and Narvaez. Part of this evidence was that on July 7, 1989, the appellant and Manolio drove in a Mazda registered in the name of Zevallos to a school lot and then parked behind a Mustang a short distance from the lot. Narvaez, who was a passenger in the Mustang, approached the appellant and Manolio. The appellant, after a short conversation with Narvaez, went to the passenger side of the Mazda and took out a white plastic bag. He handed the bag to Narvaez, who then got into a Toyota. The police followed and stopped the Toyota. The other occupant of the Toyota, Zevallos, was at that time found in possession of one kilogram of cocaine and $4,200 in Canadian money. The cocaine was contained in a bag which, at least on the surface, did not appear to be similar to the package handed to Narvaez by the appellant.

The police arrested the appellant later on July 7, 1989. The appellant was found upon his arrest to have approximately $306,000 in cash in the trunk of the car he was driving. At the same time the police searched an Oldsmobile Toronado (which the appellant had been observed driving on July 3, 1989), and found 15 kilograms of cocaine. The evidence indicated that Manolio had more frequent contact with this car than had the appellant.

The evidence disclosed that on a number of occasions from April to July 1989, the appellant was in possession of large amounts of Canadian currency, which he was exchanging for U.S. currency and Swiss francs. The total amount of currency that the appellant was shown to have handled over this period was in excess of $700,000 Canadian. The Crown's theory was that Manolio was the person who did the actual trafficking in narcotics and that the appellant handled the money.

The appellant called evidence at trial in an attempt to explain the large amounts of cash he had handled over the period in question. It was claimed that the appellant and his brother, who lives in Argentina, were conducting a currency exchange business. The appellant's brother testified that this business involved buying Argentinean money with U.S. dollars on the Argentinean black market, then using the Argentinean money to purchase Canadian dollars on the black market, and finally shipping the Canadian money to Canada to be exchanged for U.S. dollars. The appellant's brother stated that the difference between the value of Canadian and U.S. currency on the Argentinean black market would result in this type of circular exchange yielding a substantial profit, a claim supported by the expert testimony of an economist. The appellant also called as witnesses a relative who testified to having acted on one occasion as a courier of Canadian currency between Argentina and Canada for the appellant and his brother, and an Argentinean who testified to having lent $400,000 U.S. to the appellant's brother. The appellant did not testify.

The appellant's trial was conducted intermittently over 20 days from November 16, 1989 to July 3, 1990. At the conclusion of the Crown's case, the appellant moved to have the charges dismissed on the basis that the Crown had failed to adduce any evidence to prove the essential elements of the offences. The trial judge dismissed that motion on April 2, 1990. In the course of his oral reasons for denying the motion, the trial judge commented upon having difficulty dealing with the case because of the intermittent nature of the trial proceedings and that he had to rely entirely on his notes.

Three months later, on July 3, 1990, the trial judge delivered judgment with oral reasons. In rendering his verdict the trial judge again commented on the sporadic nature of the proceedings but his comments did not indicate that he had the same difficulty in dealing with the evidence as he had in April. The trial judge said he had seriously considered declaring a mistrial because the trial proceedings were "extremely unsatisfactory", but that he had decided not to declare a mistrial because that would cause undue hardship to the appellant. The trial judge then convicted the appellant on the conspiracy, trafficking and possession of narcotics charges, and acquitted him on the proceeds-related charges. On July 25, 1990, the trial judge sentenced the appellant to nine years' imprisonment.

In considering the trial judge's decision to acquit the appellant on the proceeds-related charges, it is helpful to divide the proceeds-related charges into separate groups based on the time periods involved. The proceeds-related charges against the appellant were counts 6 to 24 on the information dated November 16, 1989. Counts 6 to 11 and 22 involved allegations of unlawful possession of the proceeds of narcotic trafficking, and of laundering the proceeds of narcotic trafficking, between April 28, 1989 and May 24, 1989 ("the pre-July counts"). Counts 12 to 21 and 24 involved allegations of similar illegal conduct by the appellant in early July 1989 ("the July counts"). Finally, count 23 alleged the appellant had been in unlawful possession of the proceeds of narcotic trafficking between April 28, 1989 and July 6, 1989 ("the global count").

II. Judgments in the Courts Below

A. Provincial Court

(i) Application to have the charges dismissed for no evidence (April 2, 1990)

The trial judge in rejecting the application stated:

One of the difficulties I have had in dealing with this case and coming to any conclusion is the length of time it took to complete the crown's case. This case started back in about the middle of November of 1989, and proceeded from time to time into March of this year, and I have had to rely entirely upon my notes.

In rejecting the application for a nonsuit, the trial judge applied the proper test when he said:

I have gone through my notes on the evidence carefully, and I have come to the conclusion that there is some evidence, without weighing or assessing it, some evidence, to support the charges that Mr. Tortone faces, and this includes the conspiracy charge.

(ii) Trial verdict (July 3, 1990)

The trial judge first commented:

A trial conducted sporadically over this length of time can only be extremely unsatisfactory to the accused, who has been in custody from the day of his arrest, the 7th of July, 1989 and cannot be commensurate with the proper administration of justice. I, from a trial judge's point of view, find such an extended and sporadic trial extremely unsatisfactory. So much so, that I've given serious consideration to declaring a mistrial. However, I'm not going to take that step, since to do so would cause undue hardship to the accused.

In the course of reviewing the evidence, the trial judge rejected the Crown's contention that finding the appellant guilty on the conspiracy, possession of narcotics, and trafficking charges meant that the proceeds-related charges were also proven beyond a reasonable doubt (the Crown's argument being that there could be no other explanation for the source of the large amounts of cash the appellant was handling). He then stated:

Any evidence of cocaine dealing does not exist before the 5th, 6th or 7th of July, 1989 or perhaps the 19th of June, 1989. It may be valid to suspect the accused was involved in the cocaine trade as far back as April or May of 1989, but that cannot be anything more than a suspicion.

The trial judge reviewed the defence evidence, and concluded that evidence raised a reasonable doubt as to the pre-July counts:

The Crown submitted this evidence of supposedly legitimate foreign exchange transactions should be totally disbelieved because no one carrying on a legitimate business would operate in such a sloppy, inept and careless way as described by [the appellant's brother].

I agree their way of carrying on their money business was incredibly careless; however, even though I discount that evidence and give it little weight, there is still some evidence of large amounts of Canadian cash money coming to the accused from a source other than the cocaine trade.

He then dismissed the pre-July counts.

The trial judge found that while the evidence had not proved a conspiracy to have commenced in March 1989, it was established beyond a reasonable doubt that the appellant and Manolio "entered into such a conspiracy commencing Monday, the 3rd of July, 1989, and ending on Friday, the 7th of July, 1989." He found the appellant guilty of the conspiracy charge (over the shorter time period than that stated in the charge), and of the possession of narcotics and trafficking charges.

The trial judge went on to rule that there was a reasonable doubt as to the remaining proceeds-related charges (the July and global counts):

Due to there being some evidence that at least some of the money the accused was in possession of and dealing with was sent to him from Argentina for legitimate business purposes, and due to there being very little evidence, or perhaps none, of how much money actually came into the accused's possession as a result of trafficking in cocaine -- and there must have been some money -- I reluctantly come to the conclusion that the Crown has failed to establish beyond a reasonable doubt the remaining money offences, counts 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23 and 24. Those counts are dismissed.

[Emphasis added.]

B. Court of Appeal (1992), [1992 7580 (ON CA)](https://www.canlii.org/en/on/onca/doc/1992/1992canlii7580/1992canlii7580.html), 9 O.R. (3d) 161

(i) Appeal by the appellant from the convictions

Goodman J.A. noted (at p. 165) in reviewing the facts and evidence that because the activities of the appellant and Manolio "were very complicated and difficult to follow",

[i]t is little wonder that the trial judge expressed such consternation about the intermittent nature of the trial which undoubtedly made it very difficult to piece together the sequence of the events disclosed by surveillance over such a lengthy period of time as given in evidence by so many witnesses.

Goodman J.A. would have dismissed a number of the appellant's grounds of appeal but was satisfied on the basis of the trial judge's conclusions as to his difficulties in dealing with the case that a new trial should be ordered.

(ii) Appeal by the Crown from the acquittals

In dealing with the argument that the trial judge should have declared a mistrial on all of the charges, Goodman J.A stated, at p. 170:

In order to succeed, the Crown must show that the trial judge erred in law. In my opinion, the evidence with respect to these charges was inextricably interwoven with the evidence upon which the convictions against Tortone were based. If, as I have found, the trial judge could not fairly proceed to convict Tortone for the reasons stated, he erred in law in failing to declare a mistrial. The same reasoning applies to the trial of the charges of which Tortone was acquitted.

He also found that the trial judge erred in his assessment of the proceeds-related charges, by his seeming to proceed on the basis that the Crown had to prove the actual amount of money in the appellant's possession which was the proceeds of narcotic trafficking.

As a result, the Court of Appeal also ordered a new trial on the proceeds-related charges.

III. Points in Issue

The appellant raises four issues in his appeal to this Court:

1.Did the Court of Appeal for Ontario err in holding that the failure of the trial judge to declare a mistrial in relation to counts 6 to 24 of the information was an error of law upon which the Attorney General of Canada could appeal pursuant to the provisions of s. 676 of the Criminal Code?

2.Did the Court of Appeal for Ontario err in holding that the trial judge erred in law in failing to declare a mistrial in relation to counts 6 to 24 of the information?

3.Did the Court of Appeal for Ontario err in holding that the trial judge misdirected himself as to the elements of the offences contrary to ss. 11.1(2)(a) and 11.2(2)(a) of the Narcotic Control Act, R.S.C. 1970, c. N-1 (as amended)?

4.Did the Court of Appeal for Ontario err in failing to consider whether the Attorney General of Canada had shown that if the trial judge had properly instructed himself, his judgment of acquittal would not necessarily have been the same?

IV. Analysis

A. The trial judge's decision not to declare a mistrial

As the Crown did not appeal the decision to order a new trial on the charges of which the appellant was convicted, the question of whether the trial judge erred in deciding not to declare a mistrial on those charges is not before this Court. It is only the charges of which the appellant was acquitted that are now in issue.

The Court of Appeal held that the trial judge must have had the same difficulty with the evidence at the time of rendering his verdict (July 3, 1990) as he had when dealing with the nonsuit motion (April 2, 1990). That conclusion does not necessarily follow.

The trial judge's decision on the nonsuit motion in April required only that he consider if there was some evidence of the essential elements of the charges against the appellant, but the process of reaching a verdict in July required the trial judge to actually weigh that evidence. While it is speculative, nonetheless in the time between April and July, the trial judge may have improved his understanding of the evidence, he could have refreshed his memory by a more thorough review of his notes. He may have seen a transcript. He may have gained renewed appreciation of the evidence from the closing submissions of counsel. This Court was told on the appeal that the trial judge had detailed submissions from Crown counsel at the conclusion of the trial. It is noteworthy that the trial judge did not express the same concerns in reaching his trial decision as he did when dealing with the nonsuit. It is conjecture to say he must have had the same difficulty in July as he had in April. It would also be conjecture to say that this must have been the reason why the trial judge considered declaring a mistrial. The trial judge did not indicate in giving his trial verdict why he had considered declaring a mistrial.

Although the trial judge did not deal exhaustively with the evidence in reaching his decision, there is no reason to conclude that he was not able to appreciate the evidence. On the contrary the trial judge gave reasons on the evidence for his conclusions. This was adequate, particularly as there is no requirement for a trial judge to comment upon all the evidence in his reasons for judgment: R. v. Morin, 1992 40 (SCC), [1992] 3 S.C.R. 286, at p. 296; R. v. C. (R.), 1993 142 (SCC), [1993] 2 S.C.R. 226.

In the result the trial judge was correct in not declaring a mistrial on the charges of which the appellant was acquitted.

B. The trial judge's findings on the proceeds charges

The trial judge found as a fact that there was no more than a suspicion that prior to June 19, 1989, at the earliest, the appellant was involved in a conspiracy to traffic in cocaine. He also found as a fact that the appellant had raised a reasonable doubt that large amounts of currency had come into his possession through a foreign exchange business being operated by the appellant and his brother. On the basis of these findings, the trial judge went on to conclude as a fact that there was a reasonable doubt that the appellant was guilty of the pre-July counts. The trial judge also drew an inference of fact that in light of the evidence regarding the claimed foreign exchange business, in combination with the absence of evidence of money coming into the appellant's possession as a result of cocaine trafficking, the Crown had failed to prove beyond a reasonable doubt that the appellant was guilty of the July counts and the global count.

While different inferences of fact may have been drawn by another judge from the findings of fact at the trial, it is not open to an appellate court, on a Crown appeal from an acquittal, to interfere with the inferences of fact drawn by the trial judge simply because the appellate court would draw different inferences: Schuldt v. The Queen, 1985 20 (SCC), [1985] 2 S.C.R. 592. In my view the Court of Appeal erred in overturning the trial judge's verdict on the pre-July counts and the July counts.

However, it is open to an appellate court to overturn a trial judge's verdict where the trial judge has not directed his mind to an issue or issues that require determination in order to reach the verdict. In this case, it was necessary for the trial judge to determine not only whether the Crown had proven that the specific amounts particularized in the various proceeds counts were the proceeds of narcotic trafficking, but also whether, even if there were a reasonable doubt on all the other proceeds counts, the Crown had proven the global count beyond a reasonable doubt. A finding that there was reasonable doubt as to all the other proceeds counts would not necessarily lead to a conclusion that there was also reasonable doubt on the global count.

It was open to the trial judge to conclude that although he could not identify which of the transactions particularized in the various proceeds counts involved the proceeds of narcotic trafficking, the Crown had proven beyond a reasonable doubt that at least one of those transactions involved the proceeds of narcotic trafficking. If so, the result should have been to convict the appellant on the global count, and to acquit him on all the other proceeds counts.

In my view, the acquittal reached by the trial judge on the global count cannot be affirmed in light of his findings that there was

. . . very little evidence, or perhaps none, of how much money actually came into the accused's possession as a result of trafficking in cocaine -- and there must have been some money ....[Emphasis added.]

This is an ambiguous statement that is neither an expression of reasonable doubt nor a satisfaction of sufficient evidence to convict. It also indicates that the trial judge did not consider whether, despite there being a reasonable doubt on all the other charges, the Crown had proved the appellant guilty of the global count. The trial judge's failure to direct his mind to this issue was an error of law. This can only be remedied by the Court of Appeal's direction of a new trial.

VI. Conclusion

I would therefore allow the appeal in part by restoring the acquittals on counts 6 to 22 and 24, and would confirm the order for a new trial on count 23.

//Gonthier J.//

The reasons of Gonthier and Cory JJ. were delivered by

Gonthier J. (dissenting in part) -- I have had the benefit of the reasons of Justice Major and refer to his review of the facts and proceedings. While I am in any event in agreement with him that the conclusion reached by the trial judge on count 23, the global count, cannot be affirmed, I find no error in the Court of Appeal's understanding of the statements of the trial judge referring to grounds for a mistrial and its conclusion that the trial cannot be considered to have been a fair one, that the acquittals should be set aside as were the convictions and a new trial ordered. I would accordingly dismiss the appeal.

The central issue in this case, upon which I respectfully differ from Major J., is as to the Court of Appeal's finding concerning the fairness of the trial related to the trial judge's inability to consider all of the evidence in rendering his verdict. This issue goes to the very heart of the trial process, wherein an accused is to be tried and the verdict rendered on the basis of the evidence before the court as a whole. It is one of law with which the Court of Appeal was entitled to deal and indeed so fundamental that the court was obligated to do so.

The question arises by reason of statements made by the trial judge upon dealing with a motion for nonsuit on April 2, 1990 and when giving his verdict three months later. As Major J. notes in his reasons, the trial judge in deciding that motion made special reference to the difficulties which the length of time for completing the Crown's case caused him. He had had to rely entirely on a review of his notes as the hearings had run intermittently over a period of approximately five months. The Crown's case had been completed a month prior to this motion.

These difficulties in the evidence-gathering process were once again mentioned by the trial judge when the verdict was given on July 3, 1990. The relevant passage reads as follows:

A trial conducted sporadically over this length of time can only be extremely unsatisfactory to the accused, who has been in custody from the day of his arrest, the 7th of July, 1989 and cannot be commensurate with the proper administration of justice. I, from a trial judge's point of view, find such an extended and sporadic trial extremely unsatisfactory. So much so, that I've given serious consideration to declaring a mistrial. However, I'm not going to take that step, since to do so would cause undue hardship to the accused.

In the Court of Appeal (1992), 1992 7580 (ON CA), 9 O.R. (3d) 161, Goodman J.A. concluded, at p. 169:

His statements irresistibly leave the impression that the long and sporadic nature of the trial gave him difficulty in dealing with the evidence. The only reason that he gave for not declaring a mistrial was "since to do so would cause undue hardship to the accused".

and (at p. 170):

I am, however, satisfied that having regard to those statements and the nature of the evidence, the trial cannot be considered to have been a fair one. Justice must not only be done, it must be seen to be done.

I agree. The trial judge viewed the circumstances to be such as to cause him to give serious consideration to declaring a mistrial and he indicates in effect that he would have done so but for his concern that this would cause undue hardship to the accused.

Goodman J.A. rightly distinguished this case from other appeals which are based on the mere fact of delay or an inference of prejudice which may be drawn from such a fact.

While the trial judge did not state the specific nature of the difficulty he was having at either the time of the nonsuit motion or subsequently, it is nevertheless clear that the intermittent nature of the hearings had caused the trial judge to conclude that he had not been able to acquire a satisfactory appreciation of the complex factual record which was required to decide the matters before him on a sound basis. In the words of the Court of Appeal (at p. 169):

His use of the word "entirely" leaves the distinct impression that he had a somewhat diminished recollection or appreciation of the evidence except as disclosed by his notes.

The persistence of a difficulty is underlined by his reference to it in the strongest terms both when dealing with the motion for nonsuit and three months later by way of preface to his reasons for verdict. As Major J. mentions, it is speculative to inquire whether the trial judge may have improved his recollection of the facts by reference to notes and transcripts in the period following the hearing of the nonsuit motion. However, the suggestion that the recollection of the trial judge improved with the additional lapse of time between that occasion and the rendering of a verdict is belied by his comment at the latter time that, for him as a judge, the extended and sporadic nature of the trial had been so extremely unsatisfactory that he gave serious consideration to declaring a mistrial and that his reason for not doing so was undue hardship to the accused.

It is remarkable that the reason for not declaring a mistrial is not that the trial judge has been able to overcome his difficulties as a judge (this would be the necessary and only valid reason for doing this), but rather concern for causing prejudice to the accused, presumably because a mistrial would lead to a new trial. This reason cannot justify rendering a verdict on the basis of a trial that is not fair, be it a conviction or an acquittal. A proper remedy in the event a fair trial cannot be held within a reasonable delay is a stay of proceedings.

Nor is the fact that the trial judge gave reasons referring to the evidence sufficient to allay the concern as to the fairness of the trial. The value of the reasons is dependent upon the grasp their author has of the evidence and the assessment he can make of it. The judge's comments imply that the deficiency in this respect was such that he would have declared a mistrial but for the prejudice this would cause the accused. This indicates that he was aware that the basis for his decision was flawed though he misapprehended the proper remedy.

The difficulty which was encountered by the trial judge, which related to the adequacy of the trial as a process, is very different from the requirement of a properly motivated judgment which was at issue in R. v. Morin, 1992 40 (SCC), [1992] 3 S.C.R. 286, to which Major J. makes reference. In that case, the question which this Court was considering was whether the failure of a trial judge to make reference to each piece of the evidence in the course of giving reasons, among other things, constituted an error of law. Sopinka J. concluded at p. 296 that:

A trial judge must consider all of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was error in law in this respect. [Emphasis added.]

Even though a trial judge need not make reference to all the evidence before him in the course of giving reasons for judgment, the reasons may yet demonstrate that there were significant inadequacies in the fact-finding process which justify the declaration of a mistrial. While the trial judge did give reasons for his conclusions in this case, his comments indicate that he did not consider that the process of fact gathering had provided him with an adequate basis for a due consideration of the evidence. I am, with respect, unable to share the conclusion of Major J. that the trial judge did not indicate in giving his trial verdict his reason why he had considered declaring a mistrial, and that there is no reason to conclude that he was not able to appreciate the evidence.

The comments of the trial judge are particularly significant given the nature of the evidence in this case. Apart from the complexity of the factual record, there were a number of issues of credibility which were raised on the evidence. An opportunity to make reference to and consider the totality of the evidence is an important part of any process of the assessment of evidence, and particularly credibility.

The circumstances of this case are different from those which demand an investigation of the sufficiency or insufficiency of the evidence. The issue here is not limited to whether the decision of the trial judge was within the scope of conclusions which the evidence allowed or mandated. Rather, the propriety of the conclusions of the trial judge is closely connected to the question of whether there was a proper consideration of the evidence in the first place. The facts in this case were such that the evidence upon which both the convictions and the acquittals were based was to a significant degree the same. It was correctly noted in the Court of Appeal that the evidence regarding the various counts was interwoven and interdependent, with the result that conclusions based on part of the evidence cannot be isolated from inadequacies in the fact-finding process as a whole. There was a variety of testimony and evidence which was necessarily subject to an assessment regarding credibility. In these circumstances, the presence of a statement by the trial judge that the fact-finding process was inadequate is sufficient grounds for a declaration of a mistrial.

In these circumstances, it was appropriate to send the entire matter, including the counts for which an acquittal was entered, back to trial. While the fairness and integrity of the trial process, including the fact-finding process, is a matter of law of concern to both trial and appellate courts, the proper place for the trial is before a trial judge and not in the Court of Appeal.

Conclusion

In view of the statements made by the trial judge, the Court of Appeal correctly understood the position of the trial judge at the time of the consideration of the nonsuit motion and when rendering a verdict. The statements of the trial judge demonstrate not only an inadequacy in the basis for his consideration of the evidence, but also that such an inadequacy was recognized at trial, despite the fact that it was improperly addressed. The importance which was accorded to the statements of the trial judge is consistent with the decision of this Court in Morin, supra, for statements such as that of the trial judge may evidence an inability to consider all of the evidence in relation to the ultimate issue. Such a failure cannot be remedied by the provision of a reasoned decision.

There is, therefore, no reason in this case to interfere with the disposition of the Court of Appeal that the acquittals should be set aside and a new trial ordered in respect of those counts for which acquittals were entered, and I would accordingly dismiss the appeal.

Appeal allowed in part, Gonthier and Cory JJ. dissenting in part.

Solicitors for the appellant: Greenspan, Rosenberg & Buhr, Toronto.

Solicitor for the respondent: John C. Tait, Ottawa.