COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Gravesande, 2015 ONCA 774
DATE: 20151113 DOCKET: C58782
Hoy
A.C.J.O.,
Weiler and Pardu JJ.A.
BETWEEN
Her
Majesty the Queen
Respondent
and
Deryk Gravesande
Appellant
Marie Henein, Scott Hutchison and
Matthew Gourlay, for
the appellant
Luc Boucher and Jim Marshall, for the respondent
Luc Boucher and Jim Marshall, for the respondent
Heard:
October 8, 2015
On appeal from the conviction
entered by Justice Wayne G. Rabley of the Ontario
Court of Justice on
February 13, 2014.
Pardu J.A.:
[1] The appellant,
an experienced
defence lawyer, was
convicted of
smuggling drugs into the Toronto
Jail for a former client
in the course of a professional visit.
[2] A correctional officer, Darryl
Beaulieu, found the drugs
on the appellant’s former client, Joacquin Rowe. Beaulieu claimed
that he searched
Rowe before and
after the appellant’s visit. He claimed that he did not find
any
drugs on Rowe during the first search;
however, that first search did not comply with the prison’s protocols and, significantly, Beaulieu did not conduct a
full
strip search.
During the second search, drugs were found in
a sock
hidden in Rowe’s underwear.
[3] The Crown alleged that the appellant was the one who provided
the drugs to Rowe. The appellant denied the charge. Rowe did
not
testify nor did
he
provide any
information about how he acquired the
drugs.
[4] The Crown’s case against the appellant was circumstantial. Beaulieu and
Nicu Sava, another correctional officer on duty on the night
of the appellant’s visit, were the Crown’s most significant witnesses. Ultimately, the trial judge
accepted the
evidence of the
Crown, including that of Beaulieu
and Sava. Consequently, the trial judge rejected the appellant’s
evidence, and convicted him.
[5] For the reasons that follow, I conclude that the trial
judge’s verdict
must be set aside. I come to
that conclusion for two reasons. First, a
review of the trial judge’s reasons demonstrates that he applied a stricter
level of scrutiny to the appellant’s
evidence than to the prosecution witnesses. Second, the trial judge erred in
concluding that certain
third-party records requested by the appellant were
not likely relevant to an issue in
the
trial and, on that basis, refusing to review
documents that had already been
produced.
A.
BACKGROUND IN BRIEF
[6] The appellant had
represented Rowe in a trial which ended with Rowe being
found guilty. Rowe had asked the appellant to represent him
on a
retrial for the same charges.
According to the appellant, he was visiting Rowe to let him
know
that the appellant
would not be able to represent him.
[7] The appellant arrived at the Toronto Jail around 7:10 p.m. He passed
through security. The two
guards on duty at the front desk spent
about two minutes with
him, but noticed nothing
unusual – in particular, no unusual smell
despite one
of
them being within 10 feet of
the appellant.
[8] After passing through security, the appellant proceeded to the second floor where
he was met by Beaulieu.
At trial, Beaulieu testified that he immediately noticed a “strong
smell of cologne
and what I thought was marijuana mixed in with that smell”. Sava also testified that he
noticed an odour of marijuana when the appellant arrived
on the second floor – despite the fact
that
he was not in the
hallway but at a
table
reserved for guards located at least 10 or 20 feet away.
[9] After directing the appellant to an interview room, Beaulieu contacted his
supervisor, conveyed his suspicion that the appellant was
carrying drugs, and asked for
instructions. Beaulieu’s supervisor told him to follow the
Standing Orders. The Standing Orders required a strip search
of the inmate and a
search of the
interview room, before and after every professional
visit. As will be discussed in greater detail later on, the correctional officers on duty did not comply with the
Standing Orders.
[10] Beaulieu retrieved Rowe and
took him to a
room
out of
range
of surveillance cameras in order to search him. Beaulieu had asked another
correctional officer, William
Greene, to be present for the search. However,
Greene left shortly
after the search began. Video
surveillance played at trial showed
Beaulieu briefly handling Rowe’s orange jumpsuit. Beaulieu gave the
jumpsuit back to Rowe within three or four seconds of
receiving it. Rowe was in
the
room for 75 seconds.
[11] During
his examination-in-chief at trial, Sava
testified that the interview room had been searched. However, when confronted
with evidence to the contrary, he admitted that he had not searched the interview
room.
[12] The appellant spent about
35 minutes in the interview room with Rowe.
Following the meeting,
Rowe was searched
again and a
black
sock containing
eight cellophane wrapped packages
of marijuana, a
package of lidocaine,
some rolled marijuana cigarettes, and a
piece of cellophane with lubricant on it was found in
his underwear.
B.
PROCEEDINGS BELOW
[13] The
appellant was charged with one
count of trafficking.
[14] Before his trial had begun,
the appellant applied for production of certain third-party records that, broadly speaking,
related to the frequency, prevalence, and
nature of drug smuggling at
the Toronto Jail. With the exception
of some records not at issue on
appeal, the trial
judge dismissed the application. The application and the trial judge’s decision are discussed at greater length later on in these reasons.
[15] At trial,
the Crown
called a number of employees working at the Toronto Jail, the investigating
officer, and an expert witness who testified about
the value of the drugs
found on Rowe. The appellant testified on his
own
behalf and also called a character
witness.
[16] Ultimately, the
trial judge decided that the appellant had smuggled the drugs found on Rowe. In coming to that decision, the trial judge reached the
following conclusions
as well:
·
The smell of marijuana identified by Beaulieu
and Sava arrived
with the appellant, and that there was no
innocent explanation for it.
·
Rowe did
not have the drugs on his person when he entered the
interview room.
·
Rowe did
not have the black sock hidden in
his jumpsuit before the interview and Beaulieu had searched his underwear to make sure nothing
was
hidden there.
[17] The trial judge stated that the appellant was a reasonable witness. However, the
trial judge noted some weaknesses in
his testimony and stated that the appellant
was not compelling enough to leave the trial judge in
a state of reasonable doubt. Ultimately, the trial judge accepted the Crown’s evidence, rejected that
of the defence, and
convicted the appellant.
C. DIFFERENT STANDARDS OF SCRUTINY
[18] This court has repeatedly
stated that it is
an error of law
for a trial judge to apply a higher
or stricter level of scrutiny to the
evidence of the defence than to the
evidence of the Crown:
R.
v. Owen (2001), 150
O.A.C. 378, at para. 3;
R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 62; R. v. Phan, 2013
ONCA 787, 313 O.A.C. 352 at para. 30. However, as noted by
Laskin J.A. in R.
v. Aird, 2013 ONCA 447, 307
O.A.C. 183, at para.
39:
The "different standards of scrutiny" argument is
a difficult argument to succeed on in an appellate court. It is difficult for two related reasons:
credibility findings are the province of the trial
judge and attract a
very high degree of deference
on appeal; and appellate
courts invariably view this argument with skepticism, seeing it
as a veiled invitation to
reassess the trial judge's
credibility determinations.
[19] For an appellant to successfully advance this ground
of appeal, she must identify something clear in the trial judge’s reasons
or the record indicating that a different
standard of scrutiny
was applied and something sufficiently significant to displace the deference due to a trial judge’s credibility
assessments: R. v. Howe (2005),
192 C.C.C. (3d) 480 at para.
59 (Ont. C.A.); R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at
para. 98.
[20] In this case, the appellant succeeds on
this ground of appeal.
The
trial judge’s reasons demonstrate that he rejected the appellant’s testimony for speculative reasons, while failing to apply similar scrutiny to the
evidence of the
Crown.
(1)
Evidence of the appellant
[21] The trial judge summarized the appellant’s evidence in his reasons convicting the appellant
as follows:
[The appellant] testified on his own behalf. [The
appellant] was at the time of
the trial 61 years
of
age and
had practised as a lawyer for
22 years. He explained that
he did not and would never have
brought drugs
into the Toronto Jail. He testified that every
seasoned criminal lawyer knew
that inmates were strip
searched before and after visits with lawyers. According to Mr. Paul Copeland,
[the
appellant] is
a lawyer who is
a man of good
reputation in the community as well as within the legal fraternity. Why, the
question must be asked, would
a lawyer who is
in good
standing, be so foolish as
to take the chance
to
bring drugs
into a jail and give
them to a former
client?
[22] The trial judge indicated that he could not “point to an area of [the appellant’s] examination in
chief or cross-examination where I
would say that his evidence was implausible or
unbelievable.” However, he continued “[that] does not mean I found his
evidence compelling enough to say I believed him or that it left me in a state of reasonable doubt”.
[23] The
trial judge went on
to note what he
described as weaknesses
in the appellant’s
evidence. He identified the following “weaknesses”:
·
The appellant was suffering from depression and taking medication for his depression at the time of the visit.
·
The appellant could not remember his exact income when cross-examined on the issue.
In respect of this issue, the
trial judge stated that “a sole
practitioner not only
runs a law practise,
he runs a business. It is hard to believe that he has no idea
of what his bottom line was.”
·
The trial judge found the appellant’s explanation for the visit, specifically that he went to inform
Rowe
that he could not
represent him, hard to accept. The
trial judge stated that “[on] its face,
[the
appellant’s] income
seems to suggest that he might
have room for other clients” and
that the appellant
could have “done the necessary steps to do a pre-trial
and
then set
the matter once again for trial.”
The trial judge stated that the appellant would
“have had ample time to
do the actual preparation given that the trial would likely be
a
number of
months
after the homicide
case had
been
completed.”
·
The trial judge also
held against the appellant the fact that he was carrying
a slender file. The trial judge stated that “it is
curious that [the appellant]
would be working on a factum with respect to a serious fraud
and
have such
a thin file with him. If
he
had said that he grabbed
a piece of the
file and put it
into a
file folder
that would have made more sense.”
[24] With respect, it is
difficult to see how any of the issues identified
by the trial judge constitute “weaknesses” in the appellant’s testimony. The fact that, at the time
of the visit, the
appellant was
suffering from
depression does not make
it
more likely that he committed a
criminal offence or was less credible at trial. The
trial judge’s conclusions about a sole practitioner’s
knowledge about his
business, the appellant’s schedule, or the size of his file
are all based on speculation.
[25] The trial judge described the deficiencies in the appellant’s evidence as “small weaknesses”. He said he would not reject his evidence on the basis of these small
issues but indicated “they
are a bit troublesome and cause
me some concern.” In respect of
the size of the file brought
to
the jail, the trial judge stated that “[again], this
is a small issue
and the explanation
could be true, but it didn’t give me the sense that I was hearing the
actual facts when I was
listening to [the appellant].” Reading the trial judge’s reasons as a whole, it is inescapable
that he took these matters into
consideration in evaluating the appellant’s credibility.
[26] In addition to identifying the weaknesses noted above, the trial judge rejected the proposition that Rowe had the drugs
secreted
on his person and
that Beaulieu did not see them, saying “I agree with the defence proposition there are drugs in
the Toronto
Jail. In
my
mind that is
not
the issue and it is certainly not the relevant
issue for me to determine.”
[27] The trial judge rejected the
proposition that Rowe could have gotten the
drugs from someone else
based on his observations of the drugs which
he described as somewhat smaller than eight golf balls. He said
he looked closely at the
photographs and concluded that there was “no evidence that there are feces on them”. There was no expert
evidence that the packages would necessarily
have been contaminated, or that such contamination would be visible in pictures. The trial judge’s observations
were, once again, based on speculation and went
beyond the acceptable scope of judicial
notice.
(2) Evidence of Beaulieu and Sava
[28] As noted, Beaulieu met the appellant on the second
floor after he
was allowed into the
Toronto Jail. Beaulieu testified that he immediately noticed “a strong smell of cologne and what I thought was
marijuana mixed in
with
that smell”. Sava, who was assigned
to the same floor, also testified that he
noticed a
smell
of marijuana when the appellant
arrived on the second floor.
[29] However, when the
appellant initially arrived at the Toronto
Jail, he had to
pass through security. There were two officers on duty at the front
desk,
and the appellant was within 10 feet of one of them. Neither
noticed anything
unusual, and
in particular neither noticed any smell about the appellant.
[30] Moreover, on cross-examination, Sava admitted that he was not
in the hallway,
but at a table reserved for guards some distance away.
Sava continued maintaining that he
could
smell
marijuana emanating from
the
interview room where the
appellant was sitting waiting for
Rowe.
[31] Beaulieu contacted his supervisor for instructions,
because he suspected
that the appellant was carrying drugs. Beaulieu’s supervisor instructed him to follow
the Standing Orders. The Standing Orders required a strip search of an
inmate before and after every professional
visit. The Standing Orders also
required that the
strip search be conducted in the presence of two officers, and required that
the inmate “undress completely” and “bend over to allow a visual inspection of the external
surface areas of body
cavities.”
[32] After Beaulieu retrieved Rowe, they proceeded to an interview room out of range of surveillance cameras for the search.
Beaulieu had asked
Greene to be present
for the search. However, at trial, Greene admitted that he was not
present for much of the search
and did not remember how far
the
search got. Video surveillance recorded activity in the hallway, outside of
the room where the search
occurred. Greene did not go in
that room. After Rowe entered
the room, Beaulieu remained
standing in the doorway and briefly handled Rowe’s orange jumpsuit. At
this time, Greene
wandered down the hallway
and does not observe the rest of the search. Beaulieu gives the
jumpsuit back to Rowe within three or four seconds and Rowe comes out of the room
fully dressed.
[33] At trial, Beaulieu initially claimed that he had conducted a “strip search” of Rowe. However, he conceded that the search was not
in
accordance with the standing
orders. Beaulieu testified as follows about his
usual manner of
conducting a strip search:
I just want to make sure that I
am satisfied that there is no weapons or contraband on them so I
make
sure that
I have them take off their jumper, I
have
them take off their shoes, their T-shirt,
their socks. I
usually leave them
in their boxers to
keep dignity intact, and I
always have them run their thumbs along the rim
of their boxers, pull up boxers
and run their thumb along, so if
they are concealing anything I will be able to see it or it
will
fall out onto the floor.
Q.
And is that what you
did that day?
A. I believe so, yes.
[Emphasis added.]
[34] According to the video surveillance
played at trial,
this part of the search occupied
three or four seconds. Rowe
spent a total of 75 seconds in the room where the search occurred.
[35] Sava, during
his examination-in-chief, claimed that he searched the interview
room before
and after the visit. However, and only when confronted
with the fact
that
both the logbook for recording
searches and video recording of the room demonstrated the contrary, he admitted that he had
not searched the room but just assumed that others had.
[36] The trial judge noted that there were some issues
with the evidence of both Sava and Beaulieu. The trial judge found that Sava “shaped his evidence” to make it seem as if
he
and his
colleagues had followed the required protocols, and that
he did so to protect his job. Moreover, the trial judge
found that the correctional
officers had not acted in accordance with “all of the procedures
that they were obligated to follow.”
(3) The
trial judge
applied uneven scrutiny
[37] In spite of the problems the trial judge himself identified, and in
sharp
contrast to his focus on “small weaknesses” in the appellant’s evidence,
the trial judge accepted the evidence of both Sava and Beaulieu. Even though he concluded that Sava had been
shaping his evidence, the trial judge states that “he was also telling the truth about the events that unfolded when [the appellant] arrived.” As noted, Sava was forced to admit that he had not searched the interview room after he was confronted with evidence to
the contrary. The trial judge characterized
this retreat as follows: “Once he realized that detail
was important, Sava made realistic concessions.”
[38] In respect of Beaulieu, the trial judge
noted that, “it is difficult
not
to be a little critical of the failure of a correctional officer to follow
procedures” and that this
error was “further
magnified by the fact
that the correctional officer’s
direct supervisor had instructed him to follow the
standard procedures”. However, the
trial judge essentially dismissed these concerns, and stated that “in fairness to [Beaulieu] this was a challenging
situation that he could not
have contemplated in advance” and that “[to] err is human.”
[39] In addition, and once again in sharp contrast to his approach towards the
appellant’s case, the trial judge did not focus on or consider weaknesses in the Crown’s
case. For instance, the trial judge
accepted Beaulieu’s evidence that he “believed” he had performed the kind of search he would
usually have conducted, including making sure that Rowe was not hiding anything in his underwear.
Beaulieu did not unequivocally
say he conducted a search of Rowe’s
underwear. However, in coming to this conclusion, the trial judge never
considered the fact
that Beaulieu spent a very small
amount of time searching Rowe. He did not turn
his mind to the fact
that
Greene, who
was
required to observe the search, just happened to be absent at the critical time. The trial judge
never considered that Beaulieu
may have done nothing to search Rowe’s underwear, despite his repeated failures
to follow the Standing Orders and his supervisor’s instructions.
[40] Similarly, the trial judge accepted and placed a great deal of emphasis on Beaulieu and Sava’s evidence that they noticed
an odour of
marijuana as soon as the
appellant arrived. The
trial judge never considered the
fact that smell evidence can be highly subjective and suspect: R. v. Polashek
(1999), 134 C.C.C. (3d) 187 (Ont.
C.A.). Nor did he ever turn his mind
to the fact that the two guards
who had interacted
with the appellant moments ago, when
he was passing through security, did not notice any such
smell.
[41] Finally, the trial
judge concluded that
Sava was a credible witness on at least some
issue, even though
he had been “shaping” his
evidence. At the same time,
he rejected the appellant’s
otherwise credible evidence on the basis of weaknesses which even
the trial judge admitted were small and
insignificant. In the context of this case, the trial judge’s decision to accept
the
evidence of Sava while rejecting the evidence
of the appellant as not “compelling enough
to say that I believed him” is
deeply incongruous.
[42] When read as a whole,
the trial judge’s reasons demonstrate a degree of scrutiny of the prosecution evidence that was tolerant and relaxed as compared to
the irrelevant, tenuous and speculative observations largely about
collateral matters applied
to unfairly discount
the appellant’s evidence.
[43] Even if the evidence
was capable of supporting
a conviction, where the trial
judge has applied different standards to the assessment of prosecution
and defence
evidence the appellant has not
received a fair trial,
and thus has been the victim of a miscarriage of justice:
R. v. T.T., 2009 ONCA 613, 68 C.R. (6th)
1,
at para. 74.
[44] I would allow the
appeal and order a
new trial on this ground.
D.
THIRD-PARTY RECORDS
[45] The
appellant also submits that the
trial judge erred in refusing to inspect third party records to assess whether they should
be produced to
the defence.
(1)
Dismissal of third-party records application
[46] The appellant brought a written application for
the
production of a number of
third-party records in the possession
of the Ministry of Community
Safety and Correctional
Services, the Ministry’s Correctional
Investigation and Security Unit,
the Toronto Jail, and the Toronto Police Service, for a period roughly
five years before the date
of the alleged offence,
January 20, 2012. The documents requested included the following:
·
Prison records
for each incident in which a
Toronto Jail employee was suspected,
investigated or convicted of smuggling contraband
into the jail between January 1, 2007 and
January 20,
2012.
·
Internal
correspondence, memoranda, emails and similar
communication between the Toronto Jail staff and the Correctional Investigation and Security
Unit concerning smuggling activity by inmates, prison staff,
custodians and visitors between January 1, 2007 and January 20, 2012.
·
Investigation
files and reports for
any staff working at the Toronto Jail in January 2012
who have been investigated
or disciplined for smuggling
contraband into jails.
·
Statistical
documents or reports showing
the number of investigations into drug smuggling by Toronto Jail
staff
for the years 2007 to 2012.
[47] As noted by the trial judge, the appellant was seeking production
of these documents in order to assist him
to
test the reliability of the Crown’s circumstantial case, and to develop evidence of pervasive drug smuggling at the
Toronto Jail.
[48] The
appellant had served a subpoena duces tecum
upon the custodian of the records. The
records noted above had been assembled and were in two binders in the
courtroom.
[49] In his reasons
dismissing the appellant’s application, the trial judge was clearly concerned
about the efficient use of judicial resources and ensuring that the court remained focus on the issue before him. He concluded
that:
It is important that Courts remain
focussed on the issues at hand. The documents sought by the defence in these paragraphs relate
to a wider issue and that is the smuggling of drugs
into jails and more particularly, the Toronto Jail. The
Crown concedes that drugs are smuggled
into the Toronto Jail and it is obvious from the extensive case law
relative to smuggling contraband
into penal institutions that this is an issue
of
concern in many jurisdictions.
In
my view, this fact is not relevant as to whether or not Mr.
Gravesande smuggled contraband into the Toronto
Jail on the day in question. I
would
therefore dismiss this
part
of the Application.
(2) Test
for third-party records and “likely relevance” standard
[50] The procedure for production of third party records was set out in
R. v.
O’Connor, [1995] 4
S.C.R.
411, at
para. 20:
·
The accused must bring a written
application supported by an
affidavit setting out a basis to believe that the records are likely relevant1.
·
Notice must be given to the custodian
of the records and, if
known, to persons who have a privacy interest in the
records.
·
The accused must ensure that the custodian and the records are subpoenaed to ensure their attendance
in court.
·
The application should be heard well in advance of the trial so that the
trial is not
disrupted.
[51] If the record holder or some other interested party opposes the application,
then the trial judge must determine
whether production
should be compelled
in accordance with the two-stage
test established in
O’Connor.
At the first stage, the trial
judge must determine if the records are “likely relevant” to the proceedings and if
they should be produced for the court’s inspection. At the
second stage, the trial
judge examines the
documents to determine whether, and to what extent, production to the accused should
be ordered:
R. v.
McNeil, 2009 SCC 3, [2009] 1
S.C.R.
66, at para.
27.
[52] Likely relevance in this context means “a reasonable possibility that the information is logically probative to an issue at trial”: O’Connor,
at para.
22. An “issue at trial” includes not only material issues
concerning
the
unfolding of the events
which form the subject matter
of the proceedings, but also evidence relating
to the credibility of witnesses and
to the reliability of other evidence in the
case:
McNeil, at para. 33.
[53] “Likely relevant” is not to be interpreted as an onerous
burden on the accused. Considerations of privacy and admissibility are not relevant at this stage: O’Connor, at para. 24. As indicated in O’Connor, at para. 24: “A relevance threshold,
at this stage,
is simply a requirement
to prevent the defence from engaging
in ‘speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming’ requests for production.”
(3)
The records requested were likely relevant
[54] The appellant’s
application,
in this case, could not be characterized
as a
fishing expedition or unmeritorious request.
[55] The application was brought in a timely
fashion, and was not a
last-minute request. This
application was brought well
in advance of the trial date. The application was
heard
on September 11, 2013 and
reasons were delivered on October 21, 2013. Evidence on the trial proper
did not begin until December 9, 2013.
[56] The application was amply supported by an affidavit.
The affidavit also indicated that the information was unlikely to
be available pursuant to the Freedom of Information and Protection of Privacy Act, R.S.O
1990, c. F-31 because of concerns that divulgation
could impair jail security. The affidavit filed in support
of the application cited
a 2003 University of Toronto study indicating
that 45% of inmates housed within
a provincial institution
in Ontario had used drugs in the
preceding year. The affidavit
also referred to a June 11,
2013 Ombudsman’s report about the code of silence that exists among correctional officers:
The Applicant is unlikely to obtain
information by speaking
to current or former
jail staff. In a
June 11, 2013 report entitled
“The Code”, Ontario Ombudsman André Marin detailed the “code of silence” that exists
among correctional officers in Ontario. It
is “essentially
an unwritten social incentive for staff to conceal information
that might have negative consequences for
a co-worker.” Correctional
officers who break
“the code” are “shunned, threatened, and risk personal
harm for “ratting” on their colleagues.” The Ombudsman spoke to one jail superintendent
who is “aware of cases where threats of death and physical violence have
been made against those who told the truth in the face of the code.” [Footnote omitted.]
[57] Furthermore,
and
contrary
to
the trial judge’s conclusion, the source
of the drugs on Rowe’s person was highly relevant to the issues at trial. If, for example, drugs were
rampant in the Toronto Jail, this might have affected the assessment of the probability that Rowe was carrying
them
when he came to the interview
room. The information requested might have shed light on methods used by inmates
to
smuggle drugs, and participation by staff
and visitors in these activities. The slender concession by the Crown, that there were drugs in
the
jail, in all probability did not convey the extent of
the problem.
[58] There is a reasonable possibility
that the information was
logically relevant
to an issue at
trial: did the appellant bring
drugs
to Rowe, knowing that Rowe would be searched
before and after the
visit or was Rowe carrying those drugs on his
person when he came
to the interview room. The trial
judge could have narrowed the time period to some extent. A
criminal trial
is not a public inquiry into jail management. A more focused time range, of say two or three years
around the date
of the offence could well
have been sufficient.
The trial judge’s failure to conclude that the records were likely
relevant was clearly wrong. This error is sufficient to require
a new trial.
E.
DISPOSITION
[59] In light of these two
errors, both of which justify a
new
trial, it is not necessary
to address whether another group of documents sought by the appellant should
or should not have been ordered
produced for inspection by the trial judge.
[60] Accordingly, for these reasons, I
would allow the appeal, set
aside the conviction and order a
new
trial.
Released:
November 13, 2015
“G. Pardu J.A.” “I agree Alexandra Hoy A.C.J.O”
“I agree K.M. Weiler J.A.”
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