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Recent decision raps Crown for third time

|Written By Shannon Kari

A decision by the Ontario Court of Appeal ordering a new trial on drugs and weapons charges is the third time in the past three years that a court has made critical findings about the conduct of a Brampton-based Crown attorney.

Michael Lacy says he’s concerned the Ministry of the Attorney General argued in the Dhaliwal appeal that a Crown’s actions were not improper.

The ruling in R v. Dhaliwal, issued Aug. 28, stated that the actions of David D’Iorio were “sufficiently prejudicial” that it deprived the defendant of a fair trial.

Last year, a Superior Court judge in Brampton issued a corrective instruction to the jury after D’Iorio’s opening address to a jury in a murder trial. Three years ago, the Court of Appeal ordered a new trial because of improper cross-examination of the defendant by D’Iorio, who joined the Crown office in Brampton in 2007, a year after being called to the bar.

According to Michael Lacy, a vice president of the Criminal Lawyers’ Association, the findings raise questions about training, mentorship and the prosecution culture within some branches of the Ministry of the Attorney General.

Lacy says that while there are many skilled and ethical Crown attorneys in the province, these are not the only examples of improper conduct.

“The issue to me is why does this keep happening? It should not be about winning at all costs. It makes you wonder about oversight,” says Lacy, a partner at Brauti Thorning Zibarras LLP.

In its decision in Dhaliwal, the Court of Appeal ruled that Superior Court Justice David Price should not have allowed D’Iorio to cross-examine the defendant on his “theory” of the case.

The line of questioning “undermined the presumption of innocence,” wrote Chief Justice George Strathy, with Justices Sarah Pepall and William Hourigan concurring.

As well, the appeal court took issue with a phone call that D’Iorio made in the body of the courtroom, during a recess in the cross-examination of a defence witness.

The Crown attorney called a relative of the witness in India (with the defendant present in the courtroom, but not the witness) and asked questions seeking to impeach the credibility of the witness. When the trial resumed in front of the jury, D’Iorio suggested to the witness that she was told about the call he had made, which she denied.

The phone call was “entirely improper” and introduced hearsay “through the mouth of Crown counsel,” wrote Strathy.

As part of a fresh evidence application in the appeal, the defence was permitted to cross-examine D’Iorio.

“His evidence that he made the call in court for purposes of disclosure and transparency is unconvincing when he did not even inform defence counsel in advance that he would be making the call,” stated the Court of Appeal.

James Lockyer, who represented Dhaliwal on his appeal (but not at trial), declined to comment specifically on the conduct of D’Iorio, but he says improper cross-examinations are not unusual.

“In my experience, in appeals that I argue, an issue that I often feel obliged to raise is the conduct of the Crown. The first thing I do [when going over trial transcripts] is to review any cross-examination of the defendant and the closing address,” says Lockyer, a partner at Lockyer Campbell Posner.

The Ministry of the Attorney General argued in the Dhaliwal appeal that D’Iorio’s actions were not improper, which is of concern to Lacy.

“He is being trained by these guys. I think it is significant that the chief justice wrote the judgment. The Court of Appeal is attempting to send a message,” says Lacy.

Improper cross-examination of a defendant facing robbery charges in a jury trial before Superior Court Justice Joseph Fragomeni was cited as the reason the Court of Appeal ordered a new trial in 2013 for Shameel Singh. Cross-examination by D’Iorio of the defendant in a “sustained fashion” about the motives of the co-accused to fabricate their testimony rendered the trial unfair, the appeal court stated.

When he was cross-examined in early 2014, as part of the fresh evidence application in the Dhaliwal appeal, D’Iorio agreed that he asked improper questions of Singh.

“I appreciate now that it is wrong is what I am trying to say, and if I appreciated it then, I would not have asked the questions,” he testified.

About 16 months after that testimony, the conduct of D’Iorio was called into question by the defence in a murder trial he was prosecuting with Brian McGuire, a senior Crown attorney in Brampton.

Superior Court Justice John Sproat issued a “corrective instruction” to the jury in R v. Cargioli after D’Iorio’s opening address to the jury, because aspects of it “exceeded the scope” of what was appropriate.

D’Iorio was also named as a defendant in a civil suit filed in 2009, seeking $3 million in damages for the alleged disclosure of the identity of a confidential informant in a criminal proceeding.

Sean Dewart, who represented the plaintiff, says he cannot provide any specific comment about the action.

“All I can say is the matter was concluded a number of years ago,” explains the partner at Dewart Gleason LLP in Toronto.

D’Iorio forwarded a request for comment by Law Times to David Maylor, senior Crown Attorney for Peel Region. As a result of Crown policy and the sub judice rule, Maylor said in an e-mail that Crown attorneys are “generally not in a position to provide further comment about criminal cases and statements of claim.”

The Ministry of the Attorney General declined to comment on any work-related action it might have taken as a result of the court findings about D’Iorio, because it says all matters relating to employees are confidential.

In a general sense, though, “the Ministry takes judicial rulings very seriously and is careful to monitor the quality of its prosecutions and conduct of Crown counsel,” says spokesman Brendan Crawley.

“Concerns relating to the conduct of any particular assistant Crown attorney are addressed by the local Crown attorney,” he adds.

Crawley said that, in a general sense, remedial action may be taken if warranted and can include mentoring and educational programs.

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