Ontario Criminal


Appeal

NEW TRIAL
Trial judge reopened prosecution’s case on his own motion

Appeal from conviction. Constable investigated driver at R.I.D.E. checkpoint and made demand for sample of breath into ASD. Driver provided driver’s licence, with photo matching driver, and name of accused. Eventually accused provided samples into Intoxilyzer 8000C of blood alcohol concentration of 130 mls alcohol in 100 mls blood. Accused pleaded not guilty to driving “over 80”. Throughout his evidence, constable never referred to accused by name or pointed him out in court as person he had arrested. After Crown closed its case, accused’s counsel elected to call no evidence but pointed out his client had never been identified. Trial judge said Crown could reopen its case to identify accused, but then went on himself to ask officer if he saw accused in court. Officer indicated accused. Appeal allowed; new trial ordered. Crown never sought to reopen and played no role in calling additional evidence to supplement its case. Those steps were taken by trial judge, and real issue was whether his conduct gave rise to reasonable apprehension of bias. There was no allegation of actual bias. Manner in which trial judge responded to accused’s submission that Crown had failed to prove fact essential to finding guilt would reasonably cause accused to consider trial judge had stepped away from position of neutrality and was endeavouring to assist prosecution. On his own motion, and without inviting submissions from either Crown or defence, trial judge reopened prosecution’s case, called witness himself, adduced missing evidence, and found accused guilty. Conviction must be set aside. Accused sought acquittal on basis there was no evidence of identity. However, there was prima facie case that accused was person investigated. In absence of evidence to contrary, it would have been open to trial judge, based only on evidence introduced as part of Crown’s case, to conclude accused was person investigated.

R. v. Pepe (Jan. 29, 2013, Ont. S.C.J., MacDonnell J., File No. CR-12-50000027-00AP) 105 W.C.B. (2d) 359.

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