Court File and Parties

Court File No.: CR-11-3000768-0000
Date: 20140627
Superior Court of Justice - Ontario

Re: R. v. Daniel Barna

Before: L. A. Pattillo J.

Counsel:
M. Sokolski and J. Brienza, for the Respondent
T. Walker, for the Applicant

Heard: June 20, 2014

Endorsement

[1] Daniel Barna was jointly charged with Frank John Vettese with six counts involving fraud, money laundering and conspiracy in relation to the deposit of two fraudulent certified cheques to bank accounts at each of the Canadian Imperial Bank of Commerce and the Royal Bank of Canada and the subsequent disbursement of the money in early September, 2009.

[2] On May 20, 2014, following a 35 day trial, I found Mr. Barna guilty of one count of money laundering and dismissed the remaining charges against him. The matter was put over to June 20, 2014 for submissions on sentence.

[3] Prior to the commencement of court on June 20th, counsel for Mr. Barna served the Crown with a motion record seeking an order to allow Mr. Barna to call further medical evidence and for an abridgement of time to serve the notice. In support of his motion, Mr. Barna swore a brief affidavit.

[4] In his affidavit, Mr. Barna refers to the fact that he was involved in a motor vehicle accident in 2007 and was initially on Tylenol 3 but was later switched to Tramacet which had fewer side effects. He said that he suffered massive headaches, mainly in the morning, for “years after the accident” and that both the Tylenol and Tramacet worked although the latter induced a feeling of euphoria. Approximately 2 years after the charges in this case (the charges were brought in the fall 2009) Mr. Barna said he complained to his family doctor about Tramacet causing him a feeling of euphoria. He was then placed on 600 mg. of ibuprofen as required.

[5] Mr. Barna further states: “It didn’t occur to me at the time of the charges, but having a period of time to reflect, I felt that the Tramacet, the mild euphoria it created, affected my judgment, and likely affected my judgment in September of 2009.”

[6] In the final paragraph, Mr. Barna states: “On review of this with counsel and other senior counsel, I am of the opinion that further evidence should have been called. The effect of the narcotic Tramacet, together with my diagnosed ADD was not canvasses by me, acting in person.”

[7] On the day before sentence submissions, Mr. Barna filed with the Criminal Trial office a file folder directed to my attention which contained copies of various doctors’ reports and cases concerning sentencing. Included in this material is a confidential email to Mr. Barna from Dr. Clive Schwartz dated November 25, 2003 raising the possibility Mr. Barna may have inattentive Attention Deficit Hyperactivity Disorder (ADHD); a report from Dr. Howard Marcovitch, a psychologist, dated April 2004 stating that the results of his assessment of Mr. Barna support a diagnosis of ADHD – Primarily Inattentive Type; and a report from Dr. Atilla Turgay, a psychiatrist, dated March 6, 2006 which stated that in his opinion, Mr. Barna’s ADHD symptoms were under control and he was capable of practicing law. In saying that Mr. Barna does not require psychotherapy or medication, the Doctor stated: “I was impressed how well Mr. Barna educated himself about ADHD and complied well with all treatment approaches and improved his functioning quite dramatically.” These documents were introduced by Mr. Barna during his evidence at the trial and marked as Exhibit 144. They were prepared in respect of Mr. Barna’s discipline proceedings before the Law Society of Upper Canada between 2004 and 2006.

[8] The file folder also contains a medical/legal report in respect of Mr. Barna from Dr. George Zachariadis dated January 13, 2010 as well as two reports addressed to Dr. Zachariadis from Dr. W.J. Reynolds, a rheumatologist, dated May 27, 2008 and January 6, 2009 respectively. These reports relate to Mr. Barna’s injuries arising from his car accident in March 2007.

[9] As sentence has not been imposed, I am not functus officio and accordingly have authority to vacate the adjudication of guilt. Such authority, however, should only be exercised in exceptional circumstances and in the clearest of cases. R. v. Lessard (1976), 1976 1417 (ON CA), 30 C.C.C. (2d) 70 (Ont. C.A.); R. v. Kippax, 2011 ONCA 766 at para. 62.

[10] Notwithstanding the late delivery of the motion record, I am prepared to accept Mr. Barna’s motion. I permitted the Crown time to provide authorities and prepare a response. As a result, I consider that the Crown was not prejudiced by the late service of the motion and was able to properly respond.

[11] The test to re-open a defence case after adjudication was set out by the Court of Appeal in R. v. Kowall (1996), 1996 411 (ON CA), 108 C.C.C. (3d) 481 (Ont. C.A.) at pp. 493-4 and confirmed in R. v. Arabia, 2008 ONCA 565, 235 C.C.C. (3d) 354 (Ont. C.A.) at para. 46. The test is:

a) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial. This general principal will not be applied as strictly in criminal trials as in civil trials;

b) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue at trial;

c) the evidence must be credible in the sense that it is reasonably capable of belief; and

d) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[12] Kowall notes that in addition to the above criteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision at trial.

[13] It is not clear from Mr. Barna’s affidavit exactly what the evidence is he seeks to introduce at this stage or if that evidence is available. He says that the Tramacet “likely affected my judgment in 2009.” Presumably he will give evidence of his medications both prior to and at the time of the events of the fraud in September 2009 and specifically the side effects that he experienced from Tramacet. He will then call an expert to testify as to the impact that Tramacet had on him given that he was diagnosed with ADHD in April 2004. What is not clear is whether Mr. Barna can testify as to the specific doses of Tramacet he was taking at the time and the impact it had on him. There is also no indication whether the proposed expert testimony is available.

[14] Mr. Barna is a well-educated person. He has a law degree and practiced criminal law for a number of years before being disbarred in 2004 for, among other things, trust fund violations. Although he was self-represented at the trial, he had more knowledge and experience about a criminal trial than most lay people. His defence to the charges was that he didn’t know anything about or have anything to do with the fraudulent cheques or the subsequent disbursement of monies. It was Mr. Barna’s position that the $23,500 draft was monies were monies owed to Mr. Vettese for a transaction he had brokered. In order to pay him $10,000 on account of services rendered, Mr. Vettese directed that the monies be paid to Mr. Barna and the balance of $13,500 provided to him.

[15] In my view, the proposed evidence could have been adduced at trial. Mr. Barna led evidence of his ADHD diagnosis in 2004. There is no question that the evidence of the medication he was taking in September 2009 and the effect it had on him was clearly something Mr. Barna was aware of and could have testified to at trial. In addition, the doctors reports he has provided show he was still seeing doctors through the fall of 2009 concerning his accident and his recovery and he could have enlisted their evidence as to the effect of the medication on him. Even without applying the principle of due diligence strictly, the proposed evidence was clearly available.

[16] Assuming for a moment that Mr. Barna can obtain expert evidence that the drugs he was taking in September 2009 affected his judgment at that time, I agree that the evidence would be relevant in respect of my finding that in the circumstances as I found them, he was wilfully blind to the fact that the $23,500 draft came from monies obtained by fraud.

[17] In the absence of knowing who the proposed expert is and what he or she may say, I cannot comment on the credibility of the expert’s evidence. However, any expert opinion as to the effects from the medication Mr. Barna was taking must be based on Mr. Barna’s evidence concerning both dosage and effect. Based on the material filed, I do not consider Mr. Barna’s evidence that the Tramacet he was taking induced side effects which affected his judgment in September 2009, or at any other time, to be credible.

[18] Dr. Reynolds first prescribed Tramacet and Zytram for his myofascial pains from the car accident on May 27, 2008. Dr. Reynolds saw Mr. Barna again in January 2009, some 7 months later. There is no indication in the January 2009 report of any complaint from Mr. Barna about any side effects from the medication which he was taking daily. In fact, Dr. Reynolds gave him a further prescription for the medication.

[19] Nor does Dr. Zachariadis’ report in January 2010 indicate any complaints or problems with the medication Mr. Barna was taking for the pain. It is noteworthy that Dr. Zachariadis saw Mr. Barna a total of 38 times, 14 times after Dr. Reynolds first prescribed Tramacet and Zytram. In particular, he saw him on August 28, 2009, just a few weeks before the events in issue. His report refers to the medication Mr. Barna was taking but makes no mention of any side effects to it. The evidence of his first complaint of side effects from the medication comes from Mr. Barna when he says he saw his family physician in the fall of 2011, two years after the charges.

[20] As a result, I do not find Mr. Barna’s recent assertion after he has been found guilty that he suffered side effects from his medication which might have affected his judgment in September 2009 to be credible.

[21] The last part of the test is difficult to respond to given that the evidence has not been specifically set out. Assuming, as I did earlier, that the expert evidence establishes that the Tramacet Mr. Barna was taking in September 2009 affected his judgment at that time, the issue will be what impact such evidence would have on my finding of wilful blindness. Mr. Barna testified at some length (and gave two lengthy statements to the police) about his actions both prior to and during the events in September 2009. As well, Mr. Islam testified about Mr. Barna’s involvement. There was no indication from any of that evidence that Mr. Barna’s judgment was affected in any way. I cannot say, therefore, based on all the evidence at trial, that the proposed evidence would have affected the result.

[22] Finally, having regard to the position that Mr. Barna took at trial in defence of the charges, I view Mr. Barna’s motion to reopen the trial and call further evidence as simply an attempt to reverse a tactical decision he made at trial. I have already summarized Mr. Barna’s defence to the charges. In my view, the proposed evidence was not presented by Mr. Barna at trial because, as he says, he didn’t think about it. Rather it was not presented because it was inconsistent with the defence he put forward of being an innocent party. It was only when he reviewed my reasons for judgment and my finding of wilful blindness that he decided to raise the issue of the effect of his medication on his judgment. In such circumstances, to permit Mr. Barna’s proposed evidence at this stage would directly impact on the integrity of the trial process.

[23] For the above reasons, therefore, I do not consider that Mr. Barna has met the test to permit fresh evidence after adjudication as set out in Kowall. The motion is dismissed.

L. A. Pattillo J.

Released: June 27, 2014