R. v. McAnespie

Sopinka J. ‑‑ In our opinion, the majority of the Court of Appeal erred in directing a new trial. It did so on two grounds:

With respect to (1), we are of the opinion that although disclosure of the information ought to have been made earlier counsel for the respondent failed to bring this to the attention of the trial judge at the earliest opportunity as required. In R. v. Stinchcombe, [1991] 3 S.C.R. 326, in referring to this obligation, we stated at p. 341:

We agree with Labrosse J.A., dissenting, that the trial judge was still seized of the trial and had the discretion to reopen the trial proceedings or to order a mistrial.

In this case, counsel not only did not seek to bring the matter to the attention of the trial judge but made a tactical decision not to have the information disclosed in the sentencing proceedings. In these circumstances, a new trial ought not to have been ordered on this ground.

With respect to (2), applying the factors in Palmer v. The Queen, [1980] 1 S.C.R. 759, in our opinion the proposed evidence ought not to have been admitted. Specifically, we are of the opinion that the respondent failed to satisfy the criterion of due diligence. While this factor is not applied strictly in criminal cases and is not to be considered in isolation, the strength of the other factors is not such that failure to satisfy the due diligence requirement in this case is overborne by the other factors.

Accordingly, the appeal is allowed and the judgment of the Court of Appeal is set aside. The matter is remitted to the Court of Appeal for determination of the respondent's submission of alleged unreasonable verdict and the respondent's appeal against sentence.