COURT FILE NO.: CR-11-1513 DATE: 20160519

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN C. Vanden Broek, for the Crown

- and -

MARCO MALLIA D. Basile and B. Saad, for the Applicant

HEARD: April 20, 2015; October 2, 2015; March 21, 2016, at Brampton

RULING ON APPLICATION FOR MISTRIAL

André J.

[1] Mr. Marco Mallia (“Mr. Mallia”) brings an application for an order declaring a mistrial or, alternatively, permitting him to reopen his case, following his January 9, 2014 conviction of attempted murder, to enable him to testify. He submits that his failure to testify was largely due to the incompetence of his trial counsel who persuaded him, following the testimony of the complainant, that the charge of attempted murder was “off the table” and that he did not have to testify. The Crown submits that Mr. Mallia’s failure to testify merely reflected his trial counsel’s strategy and simply does not justify a declaration of a mistrial.

FACTS

[2] The Peel Regional Police Force (the “PRPF”) charged Mr. Mallia in 2012 with attempted murder and aggravated assault following a violent altercation between Mr. Mallia and his landlord, Mr. Robert Morrison (“Mr. Morrison”).

[3] Upon their arrival at the scene of the altercation, members of the PRPF found a bloodied Mr. Mallia lying in the hallway of his apartment building. He advised the police that Mr. Morrison had attacked him with a large knife and that he had acted in self-defence. Mr. Morrison later advised the police that Mr. Mallia had attacked him with a knife, forcing him to flee his apartment and then take refuge within it when he got an opportunity to do so.

EVIDENCE AT TRIAL

[4] During the trial, Mr. Morrison described the circumstances of the incident. He described how Mr. Mallia attacked him while he was asleep and how he managed to escape the attack. He testified that he took refuge in the hallway of his apartment where Mr. Mallia pursued him. He described how Mr. Mallia, still armed with a knife, told him he was going to kill him. He ultimately escaped, ran back into his apartment and locked the door with Mr. Mallia in hot pursuit.

[5] Two independent witnesses testified on behalf of the Crown. One of those witnesses testified that, through the peephole of her apartment’s front door, she saw a heavy set male approaching the male who lived in a nearby apartment, with the latter walking backwards. The second witness, a medical doctor, testified that he saw a male armed with a knife knocking furiously on the front door of Mr. Morrison’s apartment, presumably trying to get into it.

[6] Mr. Ian Kilgour, Mr. Mallia’s trial lawyer, vigorously cross-examined Mr. Morrison. He repeatedly put to him that he had been the aggressor and had attacked Mr. Mallia while Mr. Mallia was in his bedroom. Mr. Morrison repeatedly denied the version of events which Mr. Kilgour put to him.

[7] The Crown called a blood splatter expert whose expertise was not contested. This witness described the blood patterns he observed in the apartment.

[8] Mr. Kilgour cross-examined this witness. At the end of the Crown’s case, the defence called no evidence.

[9] On January 9, 2014, I convicted Mr. Mallia of attempted murder. I found Mr. Morrison to have been a credible witness whose evidence was corroborated by the testimony of the two independent witnesses and by the blood splatter expert.

[10] Prior to the sentencing hearing, Mr. Mallia retained new counsel and brought his application for a mistrial.

SUMMARY OF EVIDENCE ON THE APPLICATION FOR A MISTRIAL

William Gilmour

[11] Mr. William Gilmour, a local lawyer, testified that he received Mr. Mallia’s file in early 2012 from another lawyer. Mr. Kilgour joined his office a short time later. Mr. Gilmour was involved in a Rowbotham application brought by Mr. Mallia. He also contacted a psychiatrist to assess Mr. Mallia. He then transferred Mr. Mallia’s file to Mr. Kilgour because he did not have the time to defend Mr. Mallia. He did not undertake to supervise Mr. Kilgour’s handling of the file. Mr. Kilgour had management of Mr. Mallia’s file after February 2013.

[12] Mr. Gilmour spoke to psychiatrist Dr. Derek Pallandi by telephone and arranged for him to meet Mr. Mallia. Dr. Pallandi met with Mr. Mallia and gave Mr. Gilmour a verbal report. Dr. Pallandi concluded that a written report would have been of no benefit to Mr. Mallia.

[13] Mr. Gilmour testified that he had asked Dr. Pallandi to do an assessment of Mr. Mallia regarding NCR or mens rea issues.

[14] Mr. Gilmour had numerous discussions with Mr. Kilgour during the trial. Mr. Kilgour left Mr. Gilmour’s office on half a dozen occasions indicating that he was going to see Mr. Mallia. Mr. Gilmour also saw Mr. Mallia with Mr. Kilgour on two occasions at the Maplehurst Detention Centre.

[15] When asked about Mr. Kilgour’s experience, Mr. Gilmour replied that he did not know if Mr. Kilgour had done a murder trial before. He noted that Mr. Kilgour’s file keeping was “about as bad as it could be”.

[16] Mr. Gilmour testified that Mr. Kilgour told him that Mr. Mallia was refusing to testify in his own trial. Mr. Gilmour told Mr. Kilgour that he should obtain written instructions to that effect. This conversation took place in early December 2013, when the trial started.

[17] Mr. Gilmour had no recollection of Mr. Mallia calling him to complain about Mr. Kilgour’s handling of the cross-examination of the complainant. He did recall having a conversation with Mr. Mallia about Mr. Kilgour’s belief that he had raised a reasonable doubt in the Crown’s case. Mr. Kilgour also told Mr. Gilmour, after Mr. Kilgour had cross-examined the complainant, that the charge of “attempted murder” was “off the table”. Mr. Kilgour made this statement to Mr. Gilmour before telling him that he had advised Mr. Mallia to testify. Mr. Gilmour reiterated that Mr. Kilgour had told him during the trial that Mr. Mallia had refused to testify and that he had advised Mr. Kilgour to obtain written instructions from Mr. Mallia to that effect.

Mr. Mallia

[18] Mr. Mallia filed an affidavit in support of his application and gave viva voce evidence during the hearing.

[19] He testified that there was no preparation for trial done by Mr. Kilgour, who visited him in custody two days before the trial. On this occasion Mr. Kilgour showed up unannounced and visited with him for approximately forty-five minutes.

[20] During the meeting, Mr. Mallia advised his counsel that he had used crack cocaine in the days preceding the incident and on the morning of the incident. He told Mr. Kilgour that he had used half an ounce of cocaine half an hour before the incident. Mr. Mallia testified that he told Mr. Kilgour that he had been on an out of control binge on crack cocaine prior to the incident. He testified that he also told his lawyer that he suffered from bipolar disorder and experienced psychotic episodes. He further told Mr. Kilgour that he had not been on his medications at the time of the incident.

[21] Mr. Mallia also testified that he and Mr. Kilgour discussed the Crown’s blood splatter evidence and that he had told Mr. Kilgour that they needed their own blood splatter expert. Mr. Kilgour replied that they could use the Crown’s expert.

[22] Mr. Kilgour told Mr. Mallia several times during the trial that the charge of attempted murder was “off the table”. His lawyer said that the most serious offence Mr. Mallia could be convicted of was aggravated assault and that the pretrial custody Mr. Mallia had served was within the sentencing range for that offence.

[23] Mr. Kilgour, according to Mr. Mallia, was very confident, following his cross-examination of Mr. Morrison, that Mr. Mallia would not be convicted of attempted murder. He denied that Mr. Kilgour told him he should testify. Mr. Mallia stated that he decided not to testify “based on the confidence and assurance I received from Mr. Kilgour”.

[24] He did not give any written instructions regarding his failure to testify, nor did he have any discussions relating to his drug use prior to the incident. He never went to Mr. Kilgour’s office to prepare for the case.

[25] Mr. Mallia also denied telling Mr. Kilgour that he did not want to plead not criminally responsible (“NCR”).

Maryanne Mallia

[26] Maryanne Mallia, Mr. Mallia’s mother, testified that Mr. Kilgour told her son after Mr. Morrison testified that attempted murder was “off the table”. She said that Mr. Kilgour said so several times. Mr. Kilgour asked Mr. Mallia to call his principal, Mr. Gilmour, to say how good a job he had done.

Ian Kilgour

[27] Mr. Kilgour testified that he met with Mr. Mallia three times during the Rowbotham application, another three times during a bail review application and on another three occasions at the facility where Mr. Mallia was incarcerated.

[28] He discussed NCR as a possible defence with Mr. Mallia. Dr. Pallandi, who spoke to his principal, Mr. Gilmour, did not believe that a NCR defence was possible. Mr. Kilgour stated that Mr. Mallia never told him that he was in a dissociative psychotic state at the time of the offence.

[29] Mr. Mallia made it clear that he was the victim of a brutal assault and that Mr. Morrison assaulted him from behind while Mr. Mallia was fixing his bicycle. Mr. Kilgour maintained that he advised Mr. Mallia from the beginning that he should testify. Mr. Mallia had been nervous about doing so because of his criminal record. Mr. Kilgour testified that he specifically told Mr. Mallia to take the stand to contradict the testimony of Mr. Morrison that Mr. Mallia said “You’re going to die” to him in the hallway.

[30] Mr. Mallia told Mr. Kilgour on Thursday, a few days into the trial, that they had not prepared for him to testify. Mr. Kilgour replied that Mr. Mallia was not scheduled to testify until the following Monday. On the Friday morning, Mr. Mallia insisted that he was not going to testify and that his decision was final.

[31] Mr. Kilgour advised the Court that he then made it clear to Mr. Mallia that he was in significant danger of being convicted of attempted murder if he failed to testify.

[32] Regarding his failure to obtain written instructions from Mr. Mallia, Mr. Kilgour testified: “It was a mistake on my part”.

[33] Mr. Kilgour admitted that Mr. Mallia spoke about hiring a blood splatter expert two months before the trial. He told Mr. Mallia that they did not need such an expert because the evidence of the Crown’s expert “went both ways”.

[34] Mr. Kilgour made no notes about his conversation with Mr. Mallia when he visited him at the institution. He denied that he only spoke to Mr. Mallia about the case on December 7, 2013 or that Mr. Mallia told him that he had been high on cocaine at the time of the incident. Mr. Mallia advised him that Mr. Morrison attacked him without provocation and that Mr. Mallia was merely fighting for his life.

DEFENCE SUBMISSIONS

[35] Mr. Mallia’s counsel submits that the court should either declare a mistrial in this case or allow the defence to reopen its case based on the ineffectiveness of Mr. Mallia’s trial counsel. He submits that either remedy is justified given Mr. Kilgour’s patent failure to do the following:

(1) Adequately prepare Mr. Mallia for his trial. (2) Advance a defence of NCR on Mr. Mallia’s behalf. (3) Have Mr. Mallia testify in the trial.

CROWN SUBMISSIONS

[36] The Crown submits that Mr. Kilgour cross-examined Mr. Morrison extensively on the issue of self-defence. The failure to call Mr. Mallia as a witness was a strategic decision and does not amount to ineffectiveness or incompetence. Furthermore, Mr. Mallia gave a statement to the police on the very day of the alleged incident indicating that he had acted in self-defence rather than as a result of some diminished mental capacity. As a result, Mr. Kilgour should not be faulted for not raising a NCR defence during Mr. Mallia’s trial.

ANALYSIS

[37] This application raises the following issues:

(1) Should the court declare a mistrial in this case based on the ineffectiveness or incompetence of trial counsel? If not, (2) Should the court allow Mr. Mallia to reopen the case to enable him to call evidence on his own behalf?

[38] Prior to analyzing whether or not Mr. Mallia’s application should be allowed, it is necessary to determine what conduct constitutes ineffective or incompetent counsel. In R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.), Doherty J.A. noted, at para. 18, that:

An accused who is represented at trial is entitled to effective representation by counsel. Ineffective representation may result in a miscarriage of justice necessitating the quashing of the conviction on appeal. Evidence relating to the alleged ineffective assistance of counsel will be received on appeal pursuant to s. 683(1) so that the appellate court may determine whether the representation was ineffective and ultimately whether it resulted in a miscarriage of justice: R. v. Joanisse (1995), 102 C.C.C. (3d) 35 at 43-44, 56-58 (Ont. C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 347; R. v. B.(L.C.) (1996), 104 C.C.C. (3d) 353 (Ont. C.A.).

[39] Doherty J.A. proceeded to note, at paras. 119-120, that to overturn a conviction based on ineffective counsel, the following must be established:

First, where the claim is based on contested facts, the appellant must establish the material facts on the balance of probabilities. Second, the appellant must demonstrate that counsel's acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance": R. v. G.D.B. (2000), 2000 SCC 22, 143 C.C.C. (3d) 289 at 298 (S.C.C.). As this court said in R. v. White (1997), 114 C.C.C. (3d) 225 at 247:

An appellate court's review of trial counsel's performance should be deferential ... deference is called for because of the broad spectrum of professional judgment that might be considered reasonable. In most cases, even among the most skilled counsel, no two lawyers will defend an accused in the same way. Different defence counsel will use different trial strategies and tactics, different approaches to the examination and cross-examination of witnesses, different styles in opening and closing argument, all of them reasonable. The art of advocacy yields few, if any, absolute rules. It is a highly individualized art. What proves effective for one counsel may be ineffective for another. Most cases, therefore, offer defence counsel a wide scope for the exercise of reasonable skill and judgment. Appellate judges, many of them advocates in their own practices, should not be too quick to conclude that a trial lawyer's performance was deficient because they would have conducted the defence differently.

Third, the appellant must demonstrate that counsel's ineffective representation caused a miscarriage of justice. A miscarriage of justice occurs if the appellate court is satisfied that counsel's ineffective representation undermined the appearance of the fairness of the trial, or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different.

[40] In R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, Major J. noted, at paras. 26-29, that:

26 The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per O'Connor J. The reasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, that counsel's acts or omissions constituted incompetence and second, that a miscarriage of justice resulted.

27 Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment.

28 Miscarriages of justice may take many forms in this context. In some instances, counsel's performance may have resulted in procedural unfairness. In others, the reliability of the trial's result may have been compromised.

29 In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel's performance or professional conduct. The latter is left to the profession's self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow (Strickland, supra, at p. 697).

[41] Based on these cases, a finding of ineffectiveness of counsel must be based on evidence that the actions or inactions of Mr. Kilgour substantially prejudiced Mr. Mallia to an extent which resulted in a miscarriage of justice.

[42] Is there evidence of ineffectiveness of counsel in this case? Mr. Mallia’s counsel submits that there is. He relies on the following to support his position:

(1) Inadequate trial preparation by Mr. Kilgour. (2) Mr. Kilgour’s failure to mount a NCR defence. (3) The deleterious impact of Mr. Kilgour’s statement to Mr. Mallia that the charge of attempted murder was “off the table”.

INADEQUATE TRIAL PREPARATION

[43] Regarding the first factor, I am not persuaded that Mr. Kilgour only met Mr. Mallia to discuss his defence once on the Thursday following the commencement of the trial. Mr. Gilmour, whose evidence was largely uncontradicted, testified that Mr. Kilgour left his office several times with the avowed intention of going to see Mr. Mallia. Mr. Kilgour testified that he reviewed the Crown’s disclosure with his client several times. In any event, Mr. Mallia does not attribute his failure to testify to inadequate preparation; rather, he maintains that he did not testify because Mr. Kilgour told him that the charge of attempted murder was “off the table”.

FAILURE TO ADVANCE A NCR DEFENCE

[44] Is Mr. Kilgour’s failure to mount a NCR defence evidence of ineffectiveness of counsel? Mr. Mallia testified that he specifically told Mr. Kilgour that he had consumed a significant amount of drugs on the day before and the morning of the incident. Mr. Kilgour disputes this and maintains that Mr. Mallia repeatedly advised him that he had acted in self-defence.

[45] I am inclined to accept Mr. Kilgour’s testimony regarding what Mr. Mallia had advised him given that Mr. Mallia made it clear to the police officers he spoke to that he had acted in self-defence.

[46] Even if this was not the case, I accept the evidence of Mr. Gilmour concerning his interaction with psychiatrist Dr. Pallandi. Mr. Gilmour, who was Mr. Kilgour’s principal, asked Dr. Pallandi about a NCR defence in Mr. Mallia’s case. Dr. Pallandi spoke to Mr. Mallia and then advised Mr. Gilmour that such a defence did not apply. In these circumstances, Mr. Kilgour’s failure to mount a NCR defence on Mr. Mallia’s behalf cannot be construed as evidence of Mr. Kilgour’s ineffectiveness as Mr. Mallia’s trial counsel.

STATEMENT THAT ATTEMPTED MURDER CHARGE WAS “OFF THE TABLE”

[47] Did Mr. Kilgour’s statement to Mr. Mallia, following his cross-examination of Mr. Morrison, to the effect that Mr. Mallia could not be convicted of attempted murder, amount to evidence of lawyer ineffectiveness or incompetence? Before answering this question, I remind myself that assessing Mr. Kilgour’s performance as trial counsel does not amount to a performance review. Neither must I undertake this analysis with the perspicacity normally associated with hindsight. Mr. Kilgour had the right, as trial counsel, to express his opinion to Mr. Mallia about the impact of his cross-examination of the complainant on the strength of the Crown’s case against his client. Mr. Kilgour had repeatedly placed the defence’s theory to Mr. Morrison that he had initiated the physical altercation. Mr. Kilgour was entitled to express his opinion to Mr. Mallia about the perceived effectiveness of his cross-examination.

[48] Does the fact that Mr. Kilgour may have been honestly mistaken about the effectiveness of his cross-examination of Mr. Morrison, amount to a finding of lawyer ineffectiveness or incompetence? In my view, it should not, based on the facts of this case. The fact that Mr. Kilgour may have misjudged the effectiveness of his cross-examination of Mr. Morrison, does not, in this case, constitute evidence of incompetence or ineffectiveness. The courts would likely be deluged by applications of this kind if a lawyer’s reasoned opinion to his or her client about the impact of his or her cross-examination constituted evidence of incompetence. It may well be sufficient in certain cases where the lawyer’s conduct falls well outside of the boundaries of competence. However, that is not the case here.

[49] That said, it is understandable that Mr. Mallia chose not to testify after receiving that information from Mr. Kilgour. He may well have been unwilling to testify in his own defence on account of his criminal record. However, a representation from Mr. Kilgour that he did not face the jeopardy of being convicted of attempted murder, and that he had already spent the requisite period of time in custody for a conviction of aggravated assault, undoubtedly played a significant role in his decision not to testify.

[50] Mr. Kilgour testified that he advised Mr. Mallia that he should take the stand. His testimony is corroborated by Mr. Gilmour on this point. Mr. Mallia, however, denies that Mr. Kilgour advised him not to testify.

[51] Mr. Kilgour’s failure to obtain written instructions from Mr. Mallia to that effect raises doubts about his testimony on this point. Mr. Mallia faced very serious charges. Mr. Morrison testified that Mr. Mallia had attacked him while he slept and pursued him with a knife after trying to stab him. He also testified that Mr. Mallia had stated to him that he was going to die that night. One would have expected that, absent a recantation from Mr. Morrison during cross-examination, Mr. Kilgour would have sought to obtain written instructions from his client about not testifying, the more so since his principal, Mr. Gilmour, had advised him to do so.

[52] There is no doubt that Mr. Mallia’s failure to testify was highly prejudicial to him and that but for Mr. Kilgour’s representation that the charge of attempted murder was off the table, the result of the proceedings may have been different. However, I cannot conclude that the result would have been different given that there is no guarantee that I would have accepted Mr. Mallia’s version of events.

MISTRIAL

[53] Should I declare a mistrial in this application? In R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at para. 75 which was cited in R. v. Chaisson, 2009 ONCA 789, the Court noted that a mistrial may be appropriate where such a remedy is necessary to prevent a miscarriage of justice. However, the authority to declare a mistrial should only be exercised in the clearest of cases: see R. v. Arabia, 2008 ONCA 565, at paras. 51-52.

[54] In my view, this case does not fall within the category of the clearest of cases. Mr. Kilgour’s failure to mount a NCR defence does not amount to lawyer incompetence. Neither does the view he expressed to his client about the effectiveness of his cross-examination. This case clearly called for defence evidence in light of the evidence called by the Crown. Given Mr. Kilgour’s statement to Mr. Mallia and his later advice to him about the need to testify, Mr. Kilgour should have, at the very minimum, obtained written instructions from Mr. Mallia about the latter’s decision not to take the stand.

DISCRETION TO REOPEN THE CASE

[55] A court has the jurisdiction to permit an accused to reopen his or her case prior to a conviction: see R. v. Hayward (1993), 86 C.C.C. (3d) 193 (Ont. C.A.). Such a discretion exists even after a conviction has been entered: see R. v. Kowall (1996), 108 C.C.C. (3d) 481; R. v. Robillard, 1978 SCC 200, [1978] 2 S.C.R. 728, 85 D.L.R. (3d) 449; R. v. B.(HS.), 2008 SCC 52, [2008] 3 SCR 32. However, a more vigorous test is required to reopen a case following conviction. The Court noted in Kowall, at page 493 that:

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 the admissibility of fresh evidence on appeal laid down in Palmer v. The Queen (1979), 50 C.C.C. (2d) 193, at page 205 (S.C.C.) (see: R. v. Mysko (1980), 2 Sask.R. 342 (C.A.).)

[56] In Palmer v. The Queen, 1979 SCC 8, [1980] 1 S.C.R. 759, the Supreme Court of Canada set out the following criteria for the reopening of a trial:

(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: see McMartin v. The Queen, 1964 SCC 43, [1965] 1 C.C.C. 142, 46 D.L.R. (2d) 372, [1964] S.C.R. 484; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible in the sense that it is reasonably capable of belief; and (4) 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.

[57] In R. v. Kowall, supra, at 493-494, the Ontario Court of Appeal cautioned that:

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.

[58] In R. v. Katzenback, 2011 ABCA 318, at para. 11, the Alberta Court of Appeal noted that reopening a case in these circumstances is appropriate if two requirements are met:

i) the trial judge must determine that he or she is capable of performing a fresh analysis of the evidence without bias; and ii) an informed person, viewing the matter realistically and practically, would think that the trial judge could still decide the matter fairly: R. v. S. (A.D.), 1997 SCC 324, [1997] 3 S.C.R. 484, 15 D.L.R. (4 th ) 193.

APPLICATION OF THE LAW TO THE FACTS

[59] While the defence evidence could have been adduced at trial with some due diligence, the first criterion set out in Palmer should not be rigidly applied in a criminal case if such application would result in a miscarriage of justice. In my view, a rigid application of this criterion could have such an effect in this case. Mr. Mallia’s anticipated evidence is undoubtedly relevant and if believed, could reasonably be expected to affect the result of the case.

[60] In my view, Mr. Mallia’s failure to testify in his trial was not a tactical decision.

[61] With the exception of the first criterion set out in Palmer, the anticipated evidence meets the other criteria set out in that case. The evidence could clearly have been adduced at trial but for Mr. Mallia’s conclusion, based on Mr. Kilgour’s statement to him, that he could not be convicted of attempted murder. Reopening of the case is important to ensure that Mr. Mallia has a full opportunity to make full answer and defence to the serious charges that he faces.

[62] I am satisfied that I can perform a fresh analysis of the evidence fairly and without bias, if Mr. Mallia is permitted to testify. Finally, I am satisfied that allowing Mr. Mallia to reopen his case would not pose any prejudice to the Crown: see R. v. Nee-Whang, 2000 ONCA 16969, at para. 9.

CONCLUSION

[63] The application is granted. Mr. Mallia is permitted to reopen the trial to call evidence in his defence.

André J. Released: May 19, 2016

COURT FILE NO.: CR-11-1513 DATE: 20160519 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Crown - and – MARCO MALLIA Applicant RULING ON APPLICATION FOR MISTRIAL André J. Released: May 19, 2016