V. Zenobio

The Crown applied for a declaration of mistrial following the emergence of a not criminally responsible (NCR) defence after the accused had entered a guilty plea to aggravated assault pursuant to a plea bargain.

The Crown argued that the accused was attempting to resile from the plea agreement and that the judge's ordering of a mental health assessment, which led to the NCR opinion, created a reasonable apprehension of bias.

The court dismissed the Crown's application, finding no bias or apprehension of bias, and holding that the emergence of the NCR issue was a natural consequence of the mental health assessment ordered for sentencing purposes.

The court found that even if an NCR finding resulted, the Crown would not be prejudiced as the facts of the serious assault would remain before the court or Ontario Review Board.

The Crown appealed a trial decision granting a directed verdict of acquittal at the close of the Crown’s case on a charge of theft under $5,000.

The trial judge held that there was an absence of evidence against the accused and dismissed the charge.

On appeal, the court held that the trial judge misapplied the legal test governing motions for non-suit and improperly treated circumstantial evidence as mere speculation.

Applying the principles from Shephard and Arcuri, the court concluded that circumstantial evidence capable of supporting an inference of guilt met the low threshold required to send the case to the trier of fact.

The appeal was allowed and the matter remitted for trial.