Background

[1] On September 9, 2014, I found Mr. Brown guilty of a number of serious offences, including robbery with a firearm and aggravated assault, as a result of his participation in a robbery that occurred at the Humberview Motorsports car dealership on May 3, 2012.

[2] I also found Jacob Jeffrey and Clarence Morrison, guilty of a number of offences as a result of their participation in the robbery with Mr. Brown. Mr. Jeffrey and Mr. Morrison have been sentenced. The Crown has applied to have Mr. Brown declared a dangerous offender. That application is still pending.

[3] During the robbery, Mr. Brown shot and wounded Pat Cubellis, the sales manager of the dealership, and Mr. Jeffrey assaulted Sam Mazzulla, who was the only customer at the dealership.

[4] Mr. Brown has applied to re-open his trial and has asked me to declare a mistrial on the basis that the Crown did not disclose to him, until after his trial, an occurrence report relating to drug charges against Mr. Mazzulla in 2003.

[5] During the hearing of Mr. Brown’s application, I granted his counsel’s request to have Mr. Mazzulla testify on the application so that he could be cross-examined on the occurrence report.

Facts

[6] The theory of the defence was that Mr. Mazzulla was at the dealership to purchase drugs from Mr. Cubellis. At trial Mr. Mazzulla denied that he was involved in a drug transaction at the dealership.

[7] The occurrence report that was disclosed after the trial shows that in 2003 Mr. Mazzulla was charged with possession of one pound of marijuana for the purpose of trafficking and possession of the proceeds of crime. These charges were withdrawn at the request of the Crown.

[8] Prior to trial the Crown had provided the defence with a CPIC printout that referred to charges of possession for the purpose of trafficking and possession of property obtained by crime against Mr. Mazzulla. The CPIC printout recorded that these charges were withdrawn in 2003. The defence did not request the occurrence report referable to these charges prior to trial. Further, defence counsel did not cross-examine Mr. Mazzulla about the circumstances of these charges at trial.

[9] The defence position on the mistrial application is summarized in Mr. Lafontaine’s written submissions as follows:

It is submitted that Mr. Mazzulla’s evidence on the mistrial application was an obvious effort to feign a lack of memory to avoid acknowledging his involvement in a drug deal. It is submitted that this Honourable Court should find that his evidence at the trial in this matter was also the product of feigned lack of memory to avoid acknowledging that he was at the car dealership before business hours to engage in a drug transaction with Mr. Cubellis. Consequently, the mistrial application should be granted.

[10] Mr. Mazzulla testified at trial that when he was at the dealership on May 3, 2012 he was hit in the face by someone’s fist. After that he testified that everything became “pretty fuzzy” and he could not remember what had occurred until later when he recalled speaking to a police officer.

[11] At trial Mr. Mazzulla was subjected to a thorough and skillful cross-examination by Mr. Jeffrey’s counsel and by Mr. Lafontaine on behalf of Mr. Brown. Both counsel suggested that he had gone to the dealership to buy drugs and that he was feigning his memory loss to avoid telling the truth about what had really happened. Examples of his cross-examination include the following:

Q. I’m suggesting to you, sir that you got that hit as you were trying to force your way out of the vehicle to go and assist Mr. Cubellis who you heard in an argument with someone. That’s what I’m suggesting to you. Again, you can …

A. I disagree.

Q. …disagree. You disagree with that. I’m suggesting to you, sir, that you were sitting in the vehicle, that you had gone there to purchase some cocaine off Mr. Cubellis, and you were looking at some cocaine in the cab of your vehicle. You disagree with that?

A. I disagree with that.

Q. And I’m suggesting to you, sir that you were actually in the process of a transaction with Mr. Cubellis involving cocaine when these other three individuals arrived at the dealership.

A. I disagree.

Q. That’s what I’m suggesting to you.

A. I disagree.

Q. And I’m suggesting to you that you were with Mr. Cubellis around the Range Rover and that these three individuals arrived, and Mr. Cubellis was upset because you and he were in the course of this transaction.

A. I disagree.

Q. Yeah. Okay. And sir, you knew Mr. Cubellis from before. Didn’t you, sir?

A. No, I did not.

Q. You bought drugs from him before, sir?

A. No.

Q. You know he sells drugs at the wholesale level, sir. Right? Cocaine?

A. No, I don’t.

Q. And you supplement your income by selling cocaine. Right, sir?

A. No, I don’t.

Q. Okay. And sir, Mr. Cubellis, you’d expected him to meet you there sometime before business hours. Right, sir?

A. No, I disagree.

Q. So you could do a drug deal before the public was there. Right, sir?

A. I disagree.

[12] In my reasons for decision I made the following findings with respect to Mr. Mazzulla’s testimony at trial:

[69] Mr. Mazzulla testified that he had never met Mr. Cubellis before and he had never been to the dealership before. He told Mr. Cubellis that he was interested in the Range Rover and wanted to look at it.

[70] Mr. Cubellis told him that the Range Rover was in the mechanic shop at the back of the dealership. He invited him in to look at it. The door to the mechanic shop at the back of the dealership was locked. Mr. Cubellis got the key and opened the door. He let Mr. Mazzulla into the mechanic shop to look at the Range Rover.

[71] The vehicle was locked. Mr. Cubellis told him he would get the keys. After Mr. Cubellis unlocked it Mr. Mazzulla got into the driver’s side of the vehicle. He was sitting in the vehicle with the windows open for a minute or two when he noticed something going on at the door to the mechanic shop, which was about five to six feet away from him.

[72] All of a sudden he was hit once or twice in the face with what he assumed was someone’s fist. He was then pulled out of the vehicle and pushed to the ground. Mr. Mazzulla testified that he was hit “pretty hard” and everything became “pretty fuzzy”. He testified that he could not recall anything that occurred after he was pushed to the ground near the Range Rover although he did recall hearing some talking as he was on the floor.

[73] According to Mr. Mazzulla, the next thing he remembers was being outside the dealership in front of his truck speaking to a police officer. The officer told him that someone had been shot and asked him for identification.

[74] Mr. Mazzulla testified that he had left his wallet and other personal documentation in a green “Diesel” camera bag in his truck. When he looked for the bag in the truck it was missing. His iPhone was also missing from his truck. He testified that the camera bag had contained his wallet, credit cards, driver’s licence, vehicle registration, a cheque book and $1,500 in cash.

[75] He explained that he was carrying a large quantity of cash because he and his wife intended to purchase a laptop computer as a birthday present for their daughter that evening.

[76] Mr. Mazzulla testified that he only took the keys to his truck with him when he went into the dealership. He testified that he had locked his truck before he went into the dealership.

[77] Mr. Mazzulla identified his green camera bag in the photograph marked as Exhibit 1A. He testified that he got his camera bag and his iPhone back from the police approximately one month after the incident.

[78] According to Mr. Mazzulla he did not suffer any long-term injuries as a result of the incident. However, he did have a swollen cheek, black eye and a small scar on the left side of his upper lip as a result of being punched. His injuries are depicted in photographs taken by the police after the incident, which are marked as Exhibits 2A and 2B.

[79] Mr. Mazzulla testified that he did not see anyone else inside the dealership other than Mr. Cubellis. He testified that he had never seen Mr. Brown, Mr. Jeffrey or Mr. Morrison before. He could not identify the person who hit him.

[80] Under cross-examination, Mr. Mazzulla denied that he had gone to the dealership to buy cocaine from Mr. Cubellis. He also denied that he had taken the green camera bag into the dealership. He testified that he believed that the green camera bag and the other items that were stolen from his truck were taken by someone who took his keys when he was inside the dealership.

[81] Mr. Mazzulla denied that he was feigning memory loss to avoid having to testify about what really happened.

[127] Mr. Mazzulla did not witness any of this [the assaults upon Mr. Cubellis], or if he did, he testified that he has no memory of it. According to Mr. Mazzulla after he was struck in the face he cannot remember anything that happened until he was outside of the dealership talking to a police officer after the shooting had taken place. Defence counsel have suggested that he is not a credible witness because he is feigning memory loss to avoid disclosing what actually happened at the dealership. While his complete absence of memory of what happened after he was punched seems questionable, I do not regard his evidence as crucial to the issues that I have to decide. There is no dispute that he was assaulted and suffered injuries. I also accept his evidence that his green “diesel” camera bag was stolen and later returned to him by the police. The remainder of the issues that I must decide turn on the evidence of Mr. Jeffrey and Mr. Cubellis.

[13] Mr. Mazzulla was again thoroughly cross-examination by Mr. Lafontaine during the mistrial application. Mr. Mazzulla admitted he had been charged with possession of one pound of marijuana for the purpose of trafficking and possession of the proceeds of crime. He explained that the charges resulted from an incident in April 2003 when he agreed to drive a friend to a bar in Brampton. His friend purchased a pound of marijuana from a third party outside the bar. The police apparently observed the drug transaction and arrested Mr. Mazzulla and his friend and charged them both with possession of the marijuana for the purpose of trafficking. Mr. Mazzulla explained that the charges against him were withdrawn because his friend told the police the marijuana belonged to him and that Mr. Mazzulla did not know about it. Mr. Mazzulla denied he was aware that the drug transaction had occurred or that he had seen the marijuana in his car. Mr. Mazzulla also denied that he had ever sold marijuana.

[14] I found Mr. Mazzulla to be a credible and reliable witness when he testified on the mistrial application. His testimony was consistent with the occurrence report and with the fact that the charges against him were withdrawn. His evidence on the mistrial application would not have influenced me to change any of the findings of fact I made at Mr. Brown’s trial.

Law

[15] The Ontario Court of Appeal set out the test that I must apply to determine whether I should permit the re-opening of Mr. Brown’s defence case at trial in order to declare a mistrial. In R. v. Kowall, [1996] O.J. No. 2715 (C.A.), the Court explained the test for exercising this discretion in the following way at paras. 31 and 32:

The test for re-opening the defence case when the application is made prior to conviction has been laid down by this court in R. v. Hayward (1993), 86 C.C.C. (3d) 193. 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 and 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.).) That test is as follows:

(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 …;

(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.

These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. 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. Should the trial judge find that the test for reopening has been met, then the judge must consider whether to carry on with the trial or declare a mistrial.

[16] I have concluded that Mr. Brown has failed to satisfy this test for the following reasons:

(1) The occurrence report could have been obtained by the defence prior to trial. The CPIC printout that was provided to the defence prior to trial referred to the charges against Mr. Mazzulla. No effort was made by defence counsel to follow up on this by requesting the occurrence report referable to these charges. Further, Mr. Mazzulla could have been cross-examined by the defence at trial on the CPIC printout. This was not done either as a result of a tactical decision or an oversight. In either event, these circumstances do not satisfy the first criteria of the test in Kowall.

(2) Mr. Brown does not satisfy the second criteria of the test either. The occurrence report relating to charges against Mr. Mazzulla that were withdrawn ten years before the robbery has very little import, if any, upon his credibility. This is particularly the case when his evidence on this mistrial application is considered. I accept his explanation about the incident and the reason the charges against him were withdrawn. Further, his evidence was not relevant to a decisive issue at Mr. Brown’s trial as he did not remember what had occurred during the robbery. It is clear I did not rely upon his evidence at trial because of my comments at para. 127 of my Reasons for Decision in which I concluded that Mr. Mazzulla’s evidence was not crucial to the issues I had to decide.

(3) Finally, the fourth criteria of the test has not been satisfied because the occurrence report would not have affected the result at trial. It would not have influenced my decision in any way.

Conclusion

[17] For all of these reasons, Mr. Brown’s application to re-open his trial and for a mistrial is dismissed.

HAINEY J.

Released: January 25, 2017

CITATION: R. v. Brown, 2017 ONSC 562

COURT FILE NO.: CR13100005090000

DATE: 20170125

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Respondent

– and –

JORDAN BROWN

Applicant/Appellant

RULING ON MISTRIAL APPLICATION

HAINEY J.

Released: January 25, 2017

R. v. Brown, 2017 ONSC 562

Case Summary

Background

Facts

Law

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 2