COURT FILE NO.: CR-11-30000718
DATE: 20120720
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
Respondent
– and –
NAVEEN ARIARATNAM
Applicant
John Scutt, for the Crown
C. Adams and A. La Bar, for the Applicant
HEARD: June 20, 2012
M. DAMBROT J.:
[1] Naveen Ariaratnam was tried by me, with a jury, on a charge of second degree murder. He has now been found guilty, and is awaiting sentence. In order to find the offender guilty, the jury had to be satisfied, beyond a reasonable doubt, that at 2:30 a.m. on November 27, 2010, the accused intentionally drove his SUV onto a sidewalk and directly at Vincent Dang, ran over Mr. Dang and killed him.
[2] In the course of the trial, the offender brought an application pursuant to s. 24(1) of the Charter of Rights and Freedoms, for a stay of proceedings, or some other remedy, on the basis that the Crown had breached its duty to disclose all relevant information to the accused, thereby violating s. 7 of the Charter.
BACKGROUND
[3] The Crown alleged, and the jury necessarily found that at 2:30 a.m. on November 27, 2010, on Wellington Street in the Entertainment District in downtown Toronto, after travelling the wrong way on a one-way street, the offender made a U-turn in his SUV, drove onto the sidewalk, drove off the sidewalk to avoid a lamp post, then drove back onto the sidewalk directly at the deceased and a group of his friends, intentionally running over Mr. Dang and killing him. This took place after a dispute between two groups of men in a nearby nightclub and two further verbal altercations outside of the club. The accused was a member of one group, and Mr. Dang was a member of the other group.
[4] In essence, the position of the offender at trial was twofold: (1) that he was a passenger in the vehicle, and not the driver; the driver was Dixon David; and (2) that, if he was the driver, he didn’t have the mens rea for murder on account of intoxication.
[5] This trial commenced with the selection of a jury on May 17, 2012, and continued with the Crown’s opening address and the calling of evidence the following day. The Crown’s first witness was Det. Sgt. Nielsen, the officer in charge of the investigation. The second witness was Kim Cacao.
[6] Mr. Cacao was a friend of the offender, and was in the SUV at the time of the collision. He testified that the offender was the driver at the time of the collision, and not Mr. David. He also testified that although the offender had been drinking, he was not concerned about the offender’s ability to drive at the time of the collision.
[7] On each of November 30, 2010 and on December 3, 2010, prior to the arrest of Mr. Ariaratnam, Mr. Cacao was interviewed by the police and made a statement. These interviews were recorded on DVDs. In both of his statements, Mr. Cacao failed to mention that two young women, sisters Deidre and Elisha Moniz, had accompanied the offender, Mr. Cacao and others in the SUV to the Rockwood nightclub on November 26, 2010, and that Deidre had been in the SUV at the time of the collision. He also failed to mention that he and the two women met with the offender at a motel in the days immediately following the incident. In addition, he did not disclose that he knew the names of the other two men in the SUV that evening. On January 24, 2011, copies of the DVDs were disclosed to the offender as a part of the Crown’s general disclosure.
[8] On February 14, 2011, a warrant was issued for the arrest of Mr. Cacao in Ottawa in relation to allegations that he had participated in pin-pad frauds. Mr. Ariaratnam was not alleged to have been involved in these offences. For the uninitiated, in a pin-pad fraud, the fraudster steals a debit and credit card processing point-of-sale terminal from a retailer, alters it by inserting a chip and a Bluetooth device which enables debit and credit card information to be transmitted from cards swiped in the terminal, returns the modified terminal to the retailer, and allows it to be used for a couple of weeks. The fraudster then remotely downloads the new debit and credit card information to a computer, further downloads it onto debit or credit card blanks printed with bank logos, and obtains money from ATM machines using these forged cards. Needless to say, a fraudster can only carry out such a scheme with the aid of many accomplices.
[9] The police in Toronto did not become aware of these Ottawa charges until September 17, 2011. They came to light when Mr. Cacao was stopped for a seat belt infraction that day by officers in 22 Division. The 22 Division officers arrested Mr. Cacao on the Ottawa warrant, but released him when the police in Ottawa declined to return Mr. Cacao on the warrant. As a result of this arrest, Mr. Cacao became aware of these outstanding charges. The 22 Division officers advised Det. Sgt. Nielsen about the Ottawa charges, who in turn advised Crown counsel about them. On October 5, 2011, the Crown disclosed the existence of the Ottawa charges to the defence.
[10] On October 12, 2011, Crown counsel met with Mr. Cacao in preparation for the preliminary inquiry, which commenced on October 17. During the interview, Mr. Cacao provided the information that I indicated that he failed to mention in his November 30 and December 3, 2010 statements. Crown counsel disclosed police notes of this interview to the defence prior to the commencement of the preliminary inquiry.
[11] In his evidence at the preliminary inquiry, Mr. Cacao corrected the omissions in his statements that I have mentioned, and gave an explanation for them. However, despite this candour, when asked in cross-examination how he was supporting himself at the time of the preliminary inquiry, Mr. Cacao replied that he was living off friends and borrowing money. He omitted the fact that he was also making money by committing pin-pad frauds. At that time, the Crown was unaware that Mr. Cacao was telling a lie.
[12] On April 13, 2012, counsel for the offender asked for an updated CPIC check for Mr. Cacao and other witnesses, and any occurrence reports in the possession of the Crown for crimes of dishonesty. On April 26, 2011, the Crown confirmed that Mr. Cacao had no criminal convictions. On May 8, 2012, counsel for the offender asked for copies of the Ottawa occurrence reports in relation to Mr. Cacao. The Crown received these reports at 9:30 p.m. on May 14, 2012, and disclosed them to the offender the next day.
[13] On May 9, 2012, Crown counsel interviewed Mr. Cacao in preparation for trial. On May 11, 2012, the Crown disclosed police notes of this interview to the defence.
[14] On May 10, 2012, Det. Sgt. Nielsen did a fresh routine CPIC check for Mr. Cacao, and became aware that occurrence reports had been prepared for pin-pad fraud offences allegedly committed by Mr. Cacao, Mr. Ariaratnam and an unnamed third person in Newmarket. These offences occurred in September, 2010, but an arrest warrant was not issued until February 23, 2012. These charges had not previously shown up on CPIC. Det. Sgt. Nielsen did not tell Mr. Cacao about these charges, and as of May 18, 2012, Det. Sgt. Nielsen did not know if Mr. Cacao knew about these charges.
[15] Sometime between May 10 and May 13, 2012, Crown counsel advised counsel for the offender of these offences by telephone. On May 14, 2012, in the morning, Crown counsel received copies of the Newmarket occurrences and provided them to the defence that same morning.
[16] On May 15, 2012, counsel for the offender asked the Crown whether the Ottawa charges were still outstanding, whether the Newmarket occurrences had resulted in charges, and whether Mr. Cacao still had no criminal record. The Crown provided an update on May 16 or 17, 2012.
[17] Mr. Cacao was called as a witness at trial on May 22, 2012. Immediately before he testified, Crown counsel asked for a ruling about the scope of cross-examination of Mr. Cacao that would be permitted in relation to his outstanding fraud charges.
[18] Crown counsel took the position that if the offender wanted to cross-examine Mr. Cacao about his outstanding charges to show that he had a motive to be preferential to the Crown, this properly opened the door to cross-examination about the Ottawa charges, since Mr. Cacao knew about those charges. However, Crown counsel took the position that the offender could not cross-examine about the Newmarket charges for this purpose unless he was first able to lay a foundation that Mr. Cacao knew about those charges as well. The evidence suggested otherwise. Crown counsel conceded that in order to attempt to lay a foundation for cross-examination on the Newmarket charges, counsel for the offender could ask Mr. Cacao if he knew about the Newmarket charges.
[19] I then asked Mr. Adams what more he proposed to do. He indicated that he wanted to ask about the underlying facts. I asked what the purpose of the cross-examination would be. I specifically asked if the purpose was to establish prior discreditable conduct that would go to Mr.Cacao’s credibility. Mr. Adams said that that would be one effect, but it was not the purpose of the cross-examination. Mr. Adams was reluctant to explain more, but I pointed out the obvious to him: if he wanted me to rule that the cross-examination was permissible for another purpose, he had to tell me enough to permit me to rule on his request. He then advised me that it was the position of the defence that:
Mr. Cacao was part of a crew involved in debit card fraud on a very large scale …The fact that Mr. Cacao comes up repeatedly on the police radar as being in association with these people and having these pin pads is a very important piece of evidence substantiating that position of the defence. The defence goes further and suggests that his position in that crew and his subsequent actions, for which the evidence is that he's caught with these things while Mr. Ariaratnam, as we all know, is in jail, indicates that he had a motive to lie about Mr. Ariaratnam's participation in the events of November the 27th.
[20] I confessed then, and I confess now, that I do not understand the logic of this defence. But it is enough to say the offender continued to advance this defence throughout the trial, including in his counsel’s closing address to the jury. When I indicated that I didn’t understand the defence, Mr. Adams said that Mr. Cacao’s motive for pointing a finger at the offender was to shield others, and, as well, “he sees the opportunity to dispose of Mr. Ariaratnam to appropriate the very expensive equipment they use for this and use it himself.” In fact, this last position was never advanced to Mr. Cacao in cross-examination, or at any other time in this trial.
[21] As a result of the submissions made by Mr. Adams, I permitted him to cross-examine Mr. Cacao on the underlying facts in relation to the Newmarket charges as potential prior discreditable conduct, and to advance the position of the defence.
[22] Mr. Cacao then took the stand. In his examination-in-chief, he admitted that he lied about some things and left other things out in his first and second police interviews. Specifically, he mentioned that he left Deidre and Elisha Moniz out of his statement. These two young women had been at the club with the offender, Mr. Cacao and others that evening, and Deidre Moniz was in the SUV when it collided with Mr. Dang. He also denied knowing the names of two other men who were at the club and in the SUV. He testified that he had corrected these things in his evidence at the preliminary hearing.
[23] Mr. Cacao was also asked in examination-in-chief if he was aware of outstanding charges against him in Ottawa. He acknowledged that he was, and said that they related to theft and fraud involving pin-pads. He went on to say that he was not aware of any other outstanding charges concerning pin-pads.
[24] At the outset of his cross-examination, the first matter of substance Mr. Adams asked Mr. Cacao about related to his first meeting with the offender. Specifically, he asked who introduced him to the offender, and suggested that it was someone named Vijay. Mr. Cacao denied that Vijay introduced him to the offender, but agreed that he had a friend named Vijay, who was not a friend anymore. When asked why he was not a friend anymore, Mr. Cacao said that he did not want to associate with people who brought him down. When pushed to explain, Mr. Cacao said that he met the offender and Vijay at the same time, and when asked how they brought him down, Mr. Cacao said that they pulled him into their line of work, and he was not proud of what he had done.
[25] Mr. Adams asked Mr. Cacao what the things were that he was not proud of, and he replied that he had committed fraud. When asked what kind of fraud, he said, “I would steal pin pads for Naveen and Vijay” starting in June, 2010.
[26] Not content with this overview, Mr. Adams pressed on. He asked Mr. Cacao to tell the court what his role was in the pin-pad frauds, and how the fraud worked. Mr. Cacao explained his role in detail. He also said that Naveen and Vijay introduced him “to a world where easy money would come.” Counsel himself outlined other parts of the scheme to the witness, and asked him if he had played these additional roles. Mr. Cacao said that he had not.
[27] Mr. Adams suggested to Mr. Cacao that he had gone with Dixon David to a storage garage housing the equipment for the fraud. He denied it. Mr. Adams showed him photographs of the facility, but Mr. Cacao did not recognize it. Counsel suggested that Dixon was also in on the fraud operation. Mr. Cacao replied, “Not that I know of.”
[28] Counsel then asked Mr. Cacao if he had ever mentioned his involvement in these frauds with Mr. Ariaratnam in his statements to the police or at the preliminary inquiry. He agreed that he had not. When asked why not, he said that he was not proud of it, but he had now changed his life. Counsel then asked why, all of a sudden, in the second half of his testimony at trial, he was suddenly admitting to him “rather than these people who have been working with you all this time,” that he had been committing debit card fraud. After counsel repeated the question, Mr. Cacao said, “They never asked today.”
[29] Counsel for the offender would have it that Mr. Cacao was asserting that he had never told anyone in authority that he had been committing pin-pad frauds until his cross-examination, which, as will be seen, is contrary to his subsequent evidence. I do not agree with Mr. Adams’ understanding of Mr. Cacao’s response. It is possible that Mr. Adams was attempting to ask Mr. Cacao if he had ever told anyone in authority that he had been committing pin-pad frauds, but the questions I have referred to, and the immediately following questions asked by Mr. Adams were certainly confusing. In any event, confusing or not, it is plain to me, and I so find, that Mr. Cacao thought that he was only being asked why he had not mentioned committing pin-pad frauds in examination-in-chief. That is obviously why he said, “They never asked today.” None of Mr. Cacao’s subsequent answers leads me to believe otherwise.
[30] On May 23, 2012, in the course of the continuing cross-examination of Mr. Cacao, Mr. Adams suggested to him that the first time he told people in an official position that he had been committing pin-pad frauds was in the witness stand during cross-examination. Mr. Cacao denied this, and explained that on Saturday May 19, 2012, Det. Sgt. Nielsen made a telephone call to him to remind him that he had to be in court to testify on May 22. In the course of their brief discussion, Mr. Cacao testified that he told the officer that he wasn’t completely honest at the preliminary hearing when he was asked how he was supporting himself at the time. He admitted that in addition to living off friends and borrowing money, he was committing fraud at the time of the preliminary inquiry as well. He did not specify that he was committing pin-pad frauds.
[31] At the end of his cross-examination, Mr. Cacao was asked if he told the Crown what he had told Det. Sgt. Nielsen. He said that he had. He said that he told the Crown Attorney that he had lied in cross-examination at the preliminary inquiry. In re-examination, he said that this took place during a brief meeting with Crown counsel in a witness room at 9:45 a.m. the morning that he testified. He took the witness stand at 10:40 a.m.
[32] Following the completion of Mr. Cacao’s evidence, and in the absence of the jury, I asked Crown counsel if he could tell me in essence what the witness told him. Crown counsel confirmed that he had met with the witness, and that “basically he just said that he had been doing frauds … and that was it.” He did not recall the witness relating this information to his evidence at the preliminary inquiry, but of course he knew what the witness had said at the preliminary inquiry about doing frauds at that time.
[33] I then asked Mr. Adams if he had any request of the court arising out of this matter. He replied that he wanted to go to the jury in closing and allege that Det. Sgt. Nielsen had suppressed evidence, and that this misconduct spread throughout “the whole system.” I took this to mean that Crown counsel was complicit in suppressing evidence, and advised Mr. Adams that before he made such allegations against Crown counsel, we would need to discuss the matter further.
[34] In the morning of May 24, 2012, counsel for the offender announced that after mature thought, he was bringing an application for a stay for non-disclosure and abuse of process. I refused to permit the application to be brought without notice, and without a record. I was of the view that serious allegations against Crown counsel and a request for a stay of proceedings in a murder case should not be brought in so casual a manner. Crown counsel was entitled to know precisely what the Crown was being called upon to respond to, and have time to consider the matter with care. I was also of the view that the Crown should have proper notice of the argument in order for there to be an opportunity to have Crown counsel not involved in the case briefed to argue the matter.
[35] Counsel for Mr. Adams did in fact file the material I required, and Crown counsel advised me that Mr. Scutt would be arguing the application for the Crown. I heard the argument at the close of the Crown’s case, and reserved.
[36] Det. Sgt. Nielsen testified on the application. He said that he did speak to Mr. Cacao on the weekend prior to Mr. Cacao testifying, although he said that it was on Sunday May 20, and not on Saturday May 19. He did not make contemporaneous notes of this conversation. He said that Mr. Cacao did not say that he had lied at the preliminary inquiry, but he did recall that Mr. Cacao told him that he had committed frauds with the accused prior to the collision. He did not consider this new information, because he already knew it from his knowledge of the Newmarket charges. Det. Sgt. Nielsen was unaware that Mr. Cacao had lied at the preliminary inquiry. As a result, he did not mention this comment to Crown counsel.
[37] Det. Sgt. Nielsen was also present at Mr. Cacao’s meeting with Crown counsel minutes before Mr. Cacao testified. Det. Sgt. Nielsen said that Mr. Cacao did not mention lying at the preliminary inquiry at this meeting either. He said that when asked whether he was concerned about anything, he simply said that he was concerned because he had committed frauds in the past.
[38] It is difficult to determine exactly what was said in Mr. Cacao’s discussion with Det. Sgt. Nielsen and his subsequent discussion with Crown counsel. I am of the view that both Det. Sgt. Nielsen and Mr. Cacao were endeavouring to tell the truth, but that neither had anything close to a perfect recollection of the two events.
[39] With respect to the telephone conversation, I accept the evidence of the officer that Mr. Cacao made no mention of lying at the preliminary hearing. This, no doubt, would have made a strong impression on him had it been said. I think it is probable, however, that Mr. Cacao told the officer that he was committing frauds at the time of the preliminary hearing, and not at some earlier time. Mr. Cacao was already aware that the officer knew about the Ottawa frauds, but he had not previously disclosed the fact that he was continuing to commit frauds at the time of the preliminary inquiry. This, no doubt, was on his mind because he had been thinking about his preliminary inquiry evidence before he testified at trial, and explains why he thought that he told the officer that he lied at the preliminary inquiry.
[40] As for the meeting with Crown counsel, I am unable to say whether Mr. Cacao told Crown counsel that he had been committing frauds at the time of the preliminary inquiry, or that he had been committing frauds prior to the death of Mr. Dang. I am satisfied that in either case, Mr. Cacao did not mention lying in his preliminary inquiry evidence. Of course, as Crown counsel candidly stated to me, he was aware of what Mr. Cacao had said at the preliminary inquiry about doing frauds at that time.
ANALYSIS
Was There a Breach of Section 7 of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?
[41] It hardly needs to be repeated that the Crown is obliged by s. 7 of the Charter to disclose all relevant information to the accused, whether inculpatory or exculpatory, subject to the exercise of a discretion in the Crown that does not arise here. The obligation is triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence. (See R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307.)
[42] In this case, Crown counsel’s disclosure to the offender prior to May 22, 2012 was a model of propriety. It is apparent that all evidence was disclosed in a timely fashion, including all statements of witnesses. This included notes of interviews of Crown witnesses by Crown counsel on an on-going basis. In particular, Crown counsel had complied with numerous requests made by the offender for additional information about Mr. Cacao. In addition, careful records of disclosure were maintained. But what about on May 22? Did something go awry?
[43] Looked at in isolation, a disclosure by a Crown witness to Crown counsel that he had been committing crimes at the time of the preliminary inquiry, assuming that is what happened here, when Crown counsel knows that the witness testified differently at the preliminary inquiry, meets the test of relevance. It is evidence that goes directly to the credibility of the witness, a witness who, in this case, directly implicates the offender in the commission of the offence.
[44] Similarly, looked at in isolation, a disclosure by a Crown witness to Crown counsel that he had been committing crimes prior to the crime charged would meet the test of relevance, since it would be prior misconduct by a witness that also goes to his credibility.
[45] If either of these scenarios correctly characterizes the situation that arose minutes before Mr. Cacao testified, then do additional circumstances have any impact on whether or not there was a breach of s. 7?
[46] I begin by making clear that I do not accept for a second that Crown counsel was attempting to suppress evidence, or even advertently failed in his disclosure obligation. Instead, in all of the circumstances, I conclude that it was entirely understandable that Crown counsel did not think that his further disclosure obligation was engaged.
[47] After all, as a result of the earlier disclosure of the Ottawa and Newmarket charges, Crown counsel would have had no doubt that Mr. Cacao was engaged in the on-going commission of fraud offences. Having already further disclosed this information to the defence, he would have had no doubt that the offender’s counsel knew it too. Viewed in that way, in either scenario, this new information might have seemed inconsequential. Further, the information coming to his attention in a brief meeting with the witness, and not in a witness interview, minutes before the witness took the stand, gave him little time to reflect on the matter.
[48] Nonetheless, if the first scenario reflects what happened, then the information was relevant, and material to the offender’s ability to make full answer and defence. The failure to disclose it would be a breach of s. 7. The second scenario is more problematic. If the witness simply told Crown counsel that he had been committing fraud offences prior to the offence charged, this was nothing more than a repetition of what everyone already knew, and involved no lie at the preliminary inquiry. Any slight relevance this information had in those circumstances was entirely immaterial to the ability of the offender to make full answer and defence, and cannot amount to a violation of the Charter.
[49] I am loathe to find the failure to disclose in this case to be a breach of s. 7, because Crown counsel had otherwise fulfilled his disclosure obligation admirably, because the failure was entirely inadvertent, and because, as will be seen, I have reached the conclusion that there was absolutely no prejudice occasioned by the failure to disclose. Nonetheless, if I were satisfied that the first scenario reflected what happened here, I would find a breach, however inconsequential. But since I cannot determine which of the two scenarios I have mentioned reflects what really happened, I must conclude that the offender has failed to satisfy the onus on him, and the application must be dismissed.
[50] In case I am wrong, I will go on to consider what remedy, if any, is appropriate.
Remedy
[51] Ordinarily, a stay of proceedings is only available for a failure to make disclosure where the applicant establishes, on a balance of probabilities, that: (1) the prejudice caused by the non-disclosure will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably able to remove the prejudice. These guidelines apply equally with respect to prejudice to an accused, or to the integrity of the judicial system. (See R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at para. 75.)
[52] In this case, given the Crown’s general commendable approach to disclosure, and the inadvertent nature of the breach, if any, no consideration of the integrity of the judicial system arises. The only pertinent consideration is prejudice.
[53] The suggestion of prejudice made by the offender in this case is an odd one. The offender set out to show that the witness was engaged in pin-pad frauds with him, and as a result, was an incredible witness both because of his misconduct, and because this gave him a motive to lie about the offender. As I have already noted, almost the first thing out of the mouth of the witness in cross-examination was an admission that he had engaged in pin-pad frauds with the offender. Not content with his surprising success, Mr. Adams had Mr. Cacao explain his role in the pin-pad frauds in detail, and how the fraud worked. Had disclosure been made of Mr. Cacao’s conversation with Crown counsel, Mr. Adams might not have been surprised that success came so easily, but he would have had it all the same. In effect, he now complains that he got what he wanted. It is difficult to discern how even a whiff of prejudice, or any impairment of the offender’s right to a fair trial flows from the non-disclosure, whatever it was that was not disclosed.
[54] On May 24, when Mr. Adams tried to argue this application without notice, he explained that when he began his cross-examination, he “structured it, at least in part, around the fact that I had to reveal my client’s antecedents in order to get him to come forward with his criminal antecedents.” I then raised with Mr. Adams my understanding from what he had told me the previous day that the offender’s position necessarily involved the offender’s criminal antecedents being revealed. In response, he reiterated that the structure of the defence was predicated on his knowledge of Mr. Cacao’s antecedents and “the assumption that he was going to deny them again and therefore it would be necessary for me to reveal my client’s antecedent in order to impeach him upon this.” I note, parenthetically, that there is no evidence before me that the witness denied his criminal antecedents at the preliminary inquiry – only that he omitted to mention that he was committing frauds at the time of the preliminary inquiry.
[55] Finally, on May 24, Mr. Adams addressed the question of whether he would have cross-examined about the offender’s antecedents if Mr. Cacao’s admission to Crown counsel had been known to him when he commenced cross-examining. He said:
Had I done so, I cannot say with absolute certainty, no, that's the problem, I cannot say that, but I may well have chosen not to proceed to reveal my client's criminal antecedents.
[56] Mr. Adams refined this argument in his factum. He said that he had to prepare his cross-examination on the assumption that Mr. Cacao might deny the underlying conduct relating to his outstanding fraud charges. He continued:
In order to get Mr. Cacao to admit to the frauds, the defence was forced to reveal the Applicant’s negative antecedents to the jury. … Once again, had the defence known … that Mr. Cacao would be forthcoming and admit to lying at the preliminary inquiry and being involved in frauds, then it would not have taken the approach it did during cross-examination. (Emphasis added.)
[57] This submission is disingenuous, or at the least unreliable post facto reasoning. First, it falters on its own details. Initially, Mr. Adams said that he could not say with “absolute certainty” that had the disclosure been made, he would have disclosed Mr. Ariaratnam’s criminal antecedents. Immediately after that, he said that “he may well have chosen not to proceed to reveal” those antecedents. But by the time the factum was written, his thinking had evolved. He asserted that he was forced to reveal his client’s criminal antecedents, and would not have done so had disclosure been made. Of course, this was a necessary evolution if Mr. Adams had any hope of establishing prejudice. He could not have met his onus if he merely said “he may well have chosen” not to reveal his client’s antecedents had he known about Mr. Cacao’s statement. He needed to establish a probability of prejudice, not merely a possibility.
[58] In addition, Mr. Adams’ conduct at the trial says differently. Had he been at all hesitant about revealing his client’s criminal antecedents, he would surely have made an initial effort to get Mr. Cacao to reveal his own misconduct without mentioning his client’s misconduct. Instead, he marched right into the criminal relationship between the witness and the offender without a moment’s hesitation. In addition, there can be no doubt that it was a fundamental part of Mr. Adams’ strategy not merely to discredit Mr. Cacao, but to advance his theory that as a result of their criminal partnership, Mr. Cacao had motive to falsely incriminate the offender. This was apparent from his examination-in-chief of the offender, and from his closing address to the jury.
[59] The offender began his examination-in-chief with a lengthy and detailed description of his involvement with pin-pad frauds. He described himself as being at the apex of a 500-person organization that took in $400,000 per transaction. Almost all of this evidence was revealed for the first time in his examination-in-chief. There was nothing in Mr. Cacao’s evidence that hinted at the awesome breadth of this criminal conspiracy. It is impossible to imagine that this central theme in the defence of the offender would have been jettisoned if the Crown had made the disclosure in question. Somehow, one would have to believe that in return for the simple admission by Mr. Cacao that he had committed frauds, this pillar of the defence would have been abandoned.
[60] Similarly, when Mr. Adams told the jury in his closing address that he had explored Mr. Ariaratnam’s extensive involvement in fraud to show why Mr. Cacao, who was involved in the offender’s scheme, lied about the offender in order to please the police on the one hand, and the sinister people involved in the conspiracy on the other, it was not some expendable theory. It was a central pillar of the defence that in all likelihood would have been advanced regardless.
[61] As a result, if there was a breach of s. 7, I am not satisfied that a stay of proceedings would be an appropriate remedy. Indeed, having regard to the inadvertence of the non-disclosure, the exemplary disclosure otherwise made in this case, and the complete absence of prejudice, I am of the view that it would be inappropriate to grant any remedy to the offender. Having said this, it is plain that this case does not call for consideration of the residual discretion to exclude.
[62] Finally, I note that the offender made certain secondary arguments in justification of a stay. None of these have any arguable merit, and need not be specifically addressed.
Disposition
[63] This application is dismissed.
COURT FILE NO.: CR-11-30000718
DATE: 20120720
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
NAVEEN ARIARATNAM
REASONS FOR RULING
DAMBROT J.
RELEASED: July 20, 2012