Reasons for Decision

Court File No.: CR-21-40000058-00AP
Date: 2025-01-06
Ontario Superior Court of Justice

Between:
His Majesty the King, Respondent
and
Gediminas Kevalas, Appellant/Applicant

Appearances:
J. Andres Hannah-Suarez, for the Respondent Crown
Paul J.I. Alexander, for the Appellant/Applicant

Heard: March 26 and December 6, 2024

J.M. Barrett

Overview

[1] On October 5, 2021, Mr. Kevalas was convicted by Chaffe J. in the Ontario Court of Justice of five offences relating to an unlawful entry into a dwelling on May 6, 2018.

[2] At trial, the appellant did not dispute the actus reus of any of the offences. Rather, he argued that he was too intoxicated to form the requisite specific intent for each offence. The appellant claimed to have no memory of the incident. The trial judge rejected the appellant’s intoxication defence. The appellant was sentenced to a total of 4 months’ imprisonment and 18 months’ probation.[^1]

[3] Mr. Kevalas appeals his conviction and sentence. In support of his conviction appeal, the appellant seeks to admit medical and related records as fresh evidence to bolster his intoxication defence. Although the records were available at trial, the appellant argues that the admission of these records as fresh evidence is in the interests of justice because they cast doubt on whether he had the requisite mens rea.

[4] Aside from the fresh evidence application, the appellant argues that:

i. The trial judge applied the wrong test when determining the issue of intent by using the test required for general intent offences rather than the applicable test required for specific intent offences; and,

ii. The trial judge erred by relying on an expunged discharge as an aggravating factor on sentence.

[5] The matter was originally scheduled to be heard on March 26, 2024. On that date, I raised concerns regarding the form and sufficiency of the proposed fresh evidence. Given its potential materiality to the issue of whether the appellant possessed the requisite mens rea for the five specific intent offences, the appellant was granted an adjournment to supplement his fresh evidence application.

[6] For the reasons that follow, the fresh evidence is admitted and a new trial is ordered.

The Trial Proceedings

Evidence at Trial

[7] On May 6, 2018, the victim, Steven Robertson, left his home for about 25 to 30 minutes to get gardening supplies from Home Depot. Upon returning home, at about 1:00 p.m., Mr. Robertson found his front door damaged due to forced entry and the appellant was fleeing out of the bathroom window at the back of the house. The appellant was carrying Mr. Robertson’s work bag containing a laptop, wallet, and other property. Mr. Robertson tackled the appellant and yelled to his neighbour to call 911.

[8] Mr. Robertson and his neighbour, Zoltan Zsibok, pinned the appellant to the ground. As they waited for the police, the appellant squirmed. The appellant told Messrs. Robertson and Zsibok “I’m going to come back and kill you bitches, you’re dead.”

[9] Sergeant (“Sgt”) Helen Dixon was dispatched at 1:02 p.m. and arrived on scene within minutes. She found the appellant pinned to the ground in Mr. Robertson’s backyard. Sgt. Dixon placed the appellant under arrest and handcuffed him. A pat-down search led to the discovery of cash and jewellery stuffed into the pockets of the appellant’s pants and hoodie. Even in handcuffs, the appellant was “quite aggressive” and told Sgt. Dixon “fuck you.” Sgt. Dixon described the appellant as “sickly” and believed he was on drugs. The appellant was wearing a hospital bracelet and had hospital ECG stickers on his lower legs.

[10] Police Constable (“PC”) Allawneh and his partner PC D’Sena arrived at about 1:12 p.m. to assist. During a search incident to arrest, PC Allawneh noticed the appellant had monitor patches on his chest and stomach. The appellant had an odour of alcohol on his breath and PC Allawneh believed he was “in an intoxicated state”. PC Allawneh testified that the appellant appeared to pass out in the back seat of the cruiser and was not fully alert when being booked at the station.

[11] The appellant testified that he had no memory of the incident. His last memory was of waking up in the hospital at around 11:00 a.m. with wires stuck to his body. His next memories were of lying on the grass while surrounded by police officers, and later waking up in jail.

[12] The appellant testified that he did not know how he got to the hospital or why he was there.[^2] Nor did he recall how he got to Mr. Robertson’s home or anything that happened there. He explained that he had no memory of how he got to the police station. His only memory of the night preceding his arrest, was being at a bar where he met two women and drank “a little bit” but “not much”. He remembered being in the backseat of a car driven by one of the two women. The car belonged to the appellant’s friend, Vlad, who had loaned the car to the appellant.

[13] No other evidence was adduced by the defence.

The Trial Judge’s Reasons

[14] In his Reasons for Judgment (“Reasons”), the trial judge noted that the actus reus was not “seriously in dispute.” Rather, the issue was whether the appellant “acted with intention.” The trial judge described the appellant’s testimony as follows:

Mr. Kevalas’ account of the evening was scant in detail. His evidence described a pattern of blackouts without explanation. Perhaps the most logical potentially exculpatory explanation, that he was extremely intoxicated by drug or alcohol, had little foundation. He admitted to drinking the evening before the event, but not too much. He maintained his assertion that he ‘did not remember’ regarding any aspect of the offence.

[15] In considering the appellant’s intoxication defence, the trial judge referred to the fact that the appellant had ECG patches on his body and a hospital identification bracelet. Further, the police witnesses described the appellant as being under the influence of drugs and/or alcohol. The trial judge stated that “without more” it did “not raise a reasonable doubt regarding his state of mind at the time of the offence” as he found “the evidence supporting the inference that the appellant had an operating mind is somewhat overwhelming.”[^3]

The Sentencing Proceedings

[16] The appellant sought a conditional discharge, noting the significant collateral immigration consequences arising from a conviction given his status as a permanent resident. The Crown sought a one-year jail sentence followed by eighteen months of probation. In opposing the request for a conditional discharge, the Crown referenced a prior conditional discharge in 2016[^4] following a finding of guilt on a charge of dangerous driving in circumstances involving alcohol consumption. The Crown argued that alcohol was a common thread in the appellant’s criminal offending.

[17] During the sentencing hearing, the trial judge expressed a concern about the evidence which suggested that the appellant was hospitalized sometime prior to his unlawful entry into Mr. Robinson’s home. Defence counsel then advised that he was in possession of “some initial records” but they had “very little words” which he viewed to be of “little benefit” given the appellant’s lack of memory. The trial judge adjourned sentencing and asked defence counsel to make inquiries about why the appellant was in hospital as this might assist in determining whether the appellant’s conduct was a “one-off” due to alcohol consumption.

[18] On the next date, medical records were filed showing that the appellant arrived by ambulance at the Emergency Department of Humber River Hospital at 1:50 a.m. While in the emergency department, the appellant was physically restrained and injected with Haloperidol and Lorazepam. Blood was drawn at 2:27 a.m. and showed a blood serum level of 63.5 mmo/L described in the lab report as “potentially toxic”. The hospital records showed no discharge time. Rather, the last entry at 7:15 a.m. described the appellant as “still somnolent” and that discharge was planned once awake and sober.

[19] Aside from Humber River Hospital records, the defence filed records from Toronto Paramedic Services. Paramedics responded to a 911 call about a male sleeping in his car at the side of Yorkdale Road. On arrival at 1:18 a.m., paramedics found the appellant “awake but drowsy” with slurred speech and an odour of alcohol, despite his denial that he had been drinking.

[20] No request was made to re-open the trial proceedings. The trial judge sentenced the appellant to a total of four months’ imprisonment and eighteen months of probation.

The Appeal

History of the Proceedings

[21] The hearing of the summary conviction appeal commenced on March 26, 2024. At that time, the appellant sought to admit, as fresh evidence, the medical records previously filed at his sentencing hearing in addition to an email from a toxicologist with the Centre of Forensic Sciences (“CFS”) who explained a blood serum level of 63.5 mmo/L was equivalent to a blood alcohol concentration of 252 mg/100 ml. When I questioned whether the proposed fresh evidence could impact the result at trial in the absence of any expert report, counsel for the appellant sought and was granted a short adjournment to obtain an expert report.

[22] On the return date of May 3, 2024, counsel for the appellant advised that he had retained Dr. Julian Gojer and a toxicologist. On consent, a hearing on June 14, 2024 was set. The hearing did not proceed on June 14, 2024, because two days prior, the appellant received a report from pharmacologist Dr. David Rosenbloom. The parties jointly sought additional time to consider whether, in addition to Dr. Rosenbloom’s report, a report from a psychiatrist was also required. The hearing was adjourned to August 23, 2024. A week prior to the hearing, the appellant filed a supplementary factum and a supplementary fresh evidence application seeking to adduce as fresh evidence Dr. Rosenbloom’s curriculum vitae and report. On August 23, 2024, the parties jointly sought a further adjournment. The appellant wished to obtain a report from a psychiatrist, Dr. Gojer, after which the Crown intended to cross-examine Dr. Gojer on his report. A new hearing date of December 6, 2024, was scheduled.

[23] On December 5, 2024, counsel for the appellant filed an application to adjourn the hearing explaining that through oversight, Dr. Gojer was never asked to prepare a report. This oversight was discovered on November 8, 2024. Once discovered, counsel for the appellant had difficulty reaching Dr. Gojer, as Dr. Gojer was involved in a serious car accident. Once reached, Dr. Gojer advised that he needed until the end of February 2025 to prepare his report, after which the Crown required time to conduct a cross-examination. It was suggested that the hearing be adjourned to mid-April 2025.

[24] The Crown opposed the adjournment. The Crown urged the court to proceed with the hearing considering only the initial records sought to be admitted as fresh evidence and barring the admission of Dr. Rosenbloom’s report.

[25] After hearing submissions, I denied the adjournment request. I directed that the hearing proceed and that counsel should address the admissibility of Dr. Rosenbloom’s report.

The Proposed Fresh Evidence

[26] On appeal, the appellant seeks to file as fresh evidence the following records:

(i) Medical Records: the medical records consist of four pages of records from Humber River Hospital and three pages of records from Toronto Paramedic Services. These were filed as exhibits during the sentencing hearing. The hospital records show that the appellant was “agitated upon arrival” in the emergency department. He was physically restrained and injected with the antipsychotic drug Haloperidol and the tranquilizer Lorazepam. Even then, he continued to struggle. His blood serum level at 2:27 a.m. was 63.5 mmol/L.

(ii) Correspondence from CFS Toxicologist: Inger Bugyra, a forensic toxicologist with CFS, sent counsel an email in which she stated that a blood serum level of 63.5 mmol/L is the equivalent to blood alcohol concentration (“BAC”) of 252 mg/100 ml.[^5]

(iii) Report of Dr. David Rosenbloom: Dr. Rosenbloom’s report explains the nature and effects of alcohol, and other drugs, including lorazepam and haloperidol. Dr. Rosenbloom opined that the doses administered to the appellant “are large enough to cause automatism and last more than long enough to still be active at the time of the events in question.”

[27] Counsel for the appellant concedes that with due diligence, all of the records could have been adduced at trial. The appellant has not alleged any ineffective assistance of trial counsel. He argues that the failure to exercise due diligence ought not to bar their admission as fresh evidence because in the circumstances of this case, their admission is in the interests of justice. To deny their admission risks a miscarriage of justice as the appellant may well have lacked the mens rea required for each of the five offences.

[28] The Crown argues against the admission of the proposed fresh evidence because the failure to adduce this evidence was a tactical decision of trial counsel, who determined they were unhelpful to the appellant’s defence. To admit it now, in the absence of any claim of ineffective assistance of counsel, undermines the integrity of the criminal justice process as it effectively affords a second kick at the can contrary to the principle of finality.

Governing Legal Principles

Test Governing the Admission of Fresh Evidence

[29] Section 683(1)(d) of the Criminal Code, RSC 1985, c C-46 permits an appellate court to “receive the evidence, if tendered, of any witness” where this is determined to be in the “interests of justice.”

[30] The admission of fresh evidence is governed by the principles set out by the Supreme Court of Canada in the leading decision of Palmer v. R. The Palmer test considers the following four factors:

(i) fresh evidence is generally inadmissible if, by due diligence, it could have been adduced at trial;

(ii) the evidence must be relevant and bear upon a decisive or potentially decisive issue in the trial;

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

(iv) the evidence 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.

[31] The due diligence criterion is a factor of consideration, not a condition precedent to admissibility.[^7] It promotes the integrity of the criminal justice process by ensuring finality and order.[^8] It is not applied as strictly in criminal proceedings as it is in civil proceedings.[^9] Rather, the ultimate question is whether the admission of the evidence is in the interests of justice.

[32] As Watt J.A. explained in R. v. Manasseri, the “due diligence inquiry is context-sensitive. It demands consideration of the totality of circumstances including, but not limited to, the nature of the proceedings.” In circumstances where the proposed fresh evidence is so compelling as to “give strong reason to doubt the factual accuracy of the verdict” it may be admitted despite a lack of due diligence.[^11]

Analysis

[33] As I will explain, in my view, the interests of justice weigh in favour of the admission of the fresh evidence. To deny its admission risks a miscarriage of justice.

[34] The proposed fresh evidence is compelling. It is relevant and credible to the sole issue at trial: whether the appellant had the requisite mens rea. In rejecting the appellant’s intoxication defence, the trial judge found that:

• The appellant’s evidence “described a pattern of blackouts without explanation.”
• The appellant’s explanation that he was extremely intoxicated “had little foundation.”
• The appellant’s “bare assertion that he does not remember, is not evidence of his state of mind at the time of the offence.”
• The appellant’s “threatening conduct attempting to secure escape […] all speak to a responsive, operating mind.”

[35] The proposed fresh evidence undermines all of these findings. It provides both an “explanation” and “foundation” for the appellant’s conduct. Contrary to the appellant’s testimony that he only drank “a little bit”, the hospital records show that at 2:27 a.m., he had a “potentially toxic” level of alcohol in his blood. The records also show that high doses of a tranquilizer and antipsychotic were administered intravenously. Specifically, at 1:55 a.m., the appellant received 2 mg of lorazepam and 5 mg of haloperidol. About an hour later, at 2:50 a.m., he received a further 2 mg of lorazepam.

[36] The medical records on their own arguably augment the appellant’s intoxication defence. The trial judge rejected the appellant’s testimony because it was no more than a “bare assertion”. The appellant’s claimed lack of memory was incredulous in light of his testimony that he only consumed “a little bit”. It did not accord with common sense and general human experience.

[37] When tested against the Palmer criteria, the medical records are admissible as ordinary evidence and are cogent. As explained in Manasseri, cogency “embraces elements of relevance, credibility and probative value. The proposed evidence must bear on a decisive or potentially decisive issue, must be reasonably capable of belief and, when considered with the evidence adduced at trial, must reasonably be capable of affecting the verdict at trial.” The medical records meet the cogency requirement. They offer highly reliable and credible evidence of the intoxicants in the appellant’s body hours before the commission of the offences. The records provide an alternative explanation for the appellant’s offending conduct that is inconsistent with intentional behaviour. The records could raise a reasonable doubt.

[38] While the Crown concedes the reliability and credibility of the medical records, Dr. Rosenbloom’s expert report is different. The Crown vigorously opposed the admission of Dr. Rosenbloom’s report.

[39] Dr. Rosenbloom’s report details the impact of alcohol, lorazepam, and haloperidol on the human body, and states:

• Given the half-life of lorazepam and haloperidol, both drugs would have been active at the time of the offences.
• Lorazepam can cause amnesia.
• While alcohol alone can cause blackouts, amnesia and behaviour atypical for an individual, the added effects of lorazepam and haloperidol are additive, if not synergistic (multiplicative), with the effects of alcohol.
• “It is more likely than not” that the appellant was in a state of automatism at the time of the offences.

[40] To be admissible, Dr. Rosenbloom’s evidence must satisfy the threshold requirements of the Mohan test as well as the gatekeeping analysis set out in White Burgess Langille Inman v. Abbott and Haliburton Co. The admissibility of the evidence at the first threshold step of White Burgess turns on whether it is relevant, necessary to assist the trier of fact, not subject to any exclusionary rule, and the proposed expert must be properly qualified to give the opinion. The second White Burgess step entails weighing the potential risks and benefits of admitting the evidence.

[41] In this case, the Crown challenges Dr. Rosenbloom’s expertise to opine on matters beyond pharmacology. Dr. Rosenbloom is a licensed pharmacist, not a psychiatrist. He has no expertise in automatism. Dr. Rosenbloom has been criticized in several other decisions for straying beyond his expertise.[^14] In fact, Dr. Rosenbloom has been found to have “demonstrated bias” and described as someone who presents as “more experienced and knowledgeable” than he is.[^15] One jurist found that Dr. Rosenbloom “misled” the court about the currency of his qualifications.[^16]

[42] Further, the Crown argues that without any supporting psychiatric report, Dr. Rosenbloom’s report would not impact the result at trial. I disagree. Notably, because all offences are specific intent offences,[^17] the Crown was required to prove a higher “more sophisticated reasoning process.”[^18] Consequently, an advanced degree of intoxication would suffice to negate intent. In other words, the appellant may have an absolute defence without the need to show his extreme intoxication caused a state of automatism at the time of the offences.[^19]

[43] Dr. Rosenbloom’s opinion that the drugs administered to the appellant were still active at the time of the offences and can cause amnesia is within his expertise. Further, this evidence is relevant and necessary to assist the trier of fact. Ultimately, at this stage, I need not be satisfied that Dr. Rosenbloom’s opinion should be believed. Rather, the only question is whether it is reasonably capable of belief.[^20] Evidence of an expert pharmacologist is not uncommon in circumstances akin to this case.[^21] In my view, Dr. Rosenbloom’s evidence meets the test for admission. Whether it is ultimately accepted is for the trier of fact.[^22]

[44] The scope of Dr. Rosenbloom’s evidence at the new trial will be a matter for the trial judge to decide.

[45] I find that denying the admission of the proposed fresh evidence based on a lack of due diligence would be contrary to the interests of justice. To do so risks upholding convictions for serious criminal offences in circumstances where the appellant may have lacked the requisite mental element. As Watt J.A. explained in Manasseri, at para. 248, “[d]ue diligence is not a trump card that denies entry to all evidence tendered for the first time on appeal that satisfies the admissibility and cogency requirements for admission.” The fact that other trial counsel would have adduced the medical records and supporting expert evidence is not fatal. In my view, to deny admission based on the appellant’s lack of due diligence would constitute a miscarriage of justice.

The Other Grounds of Appeal

[46] Given my finding that the fresh evidence is admissible and requires a new trial, it is not necessary to determine the appellant’s other grounds of appeal.

Disposition

[47] The fresh evidence is admitted. The appeal from conviction is allowed. The appellant’s convictions are set aside. A new trial is ordered on all counts.

J.M. Barrett

Released: January 6, 2025

Endnotes

[^1]: The appellant received concurrent sentences of 3 months’ imprisonment and 18 months’ probation for the offences of unlawfully in a dwelling house, theft under $5000, and possession under $5000. For the two convictions of threatening death, the appellant received a sentence of one month imprisonment consecutive, but concurrent to each other. In addition, the sentencing court imposed a DNA order and a 10-year weapons prohibition order.

[^2]: During submissions, counsel advised that Mr. Robertson’s home is 4.1 kilometres from Mr. Robertson’s home.

[^3]: The trial judge referred to “operating mind” throughout his reasons, which is the standard for general intent offences.

[^4]: Although the trial judge’s Reasons note that the prior conditional discharge was in 2015, in fact it was in 2016.

[^5]: Applying the standard alcohol elimination rate of 10 mg of alcohol every hour, the appellant’s BAC at the time of the offence would have been approximately 147 mg/100 ml. The court may take judicial notice of this standard elimination rate: R. v. Paszczenko, 2010 ONCA 615, para 61.

[^7]: R. v. Smith

[^8]: Palmer v. R., para 23; R. v. Manasseri, 2016 ONCA 703, paras 206, 219-222; R. v. Prasad, 2024 ONCA 601, paras 88-89

[^9]: R. v. Manasseri, 2016 ONCA 703, paras 202, 219-225

[^11]: R. v. Manasseri, 2016 ONCA 703, para 222

[^14]: R. v. Phung, para 226; R. v. Mathisen, 2008 ONCA 747; R. v. Griecken; R. v. Hall, 2011 ONSC 6634; R. v. Tucker, 2016 ONCJ 371; R. v. McCaw, 2019 ONSC 53, para 229; R. v. Osborne, 2019 ONSC 907

[^15]: R. v. Phung, para 226

[^16]: R. v. McCaw, 2019 ONSC 53, para 229

[^17]: R. v. Proudlock, para 29; Leclair v. R., para 2; R. v. Tatton, 2015 SCC 33, para 38; R. v. McRae, 2013 SCC 68, para 23

[^18]: R. v. Tatton, 2015 SCC 33, para 34

[^19]: R. v. Daley, 2007 SCC 53, paras 41-43; R. v. Tatton, 2015 SCC 33, paras 27-28, 35-39

[^20]: R. v. Manasseri, 2016 ONCA 703, para 244

[^21]: R. v. Daley, 2007 SCC 53, para 18

[^22]: R. v. Warsing, para 52