Marco Trotta and Anisa Trotta v Her Majesty the Queen: Determining the Test for Post-Conviction Disclosure

Marco Trotta and Anisa Trotta v Her Majesty the Queen is to be heard by the Supreme Court of Canada (“SCC”) on October 12, 2007. At issue in this appeal are the rules of disclosure established in R v Stinchcombe, [1991] 3 SCR 326 [Stinchcombe], namely whether these rules continue to be applicable post-conviction. The SCC will also discuss whether the onus is much higher than simple relevance to establish a right to post-conviction disclosure, whether the trial judge’s charge to the jury undermined the appellants’ right to a fair trial, and whether the fresh evidence now available is admissible. The appeal from the Trottas’ convictions was dismissed by the Ontario Court of Appeal (“OCA”), and their application for disclosure was denied by the OCA as well. These previous decisions, particularly the application for disclosure, shed light on how the case will be presented to the SCC this week.

Eight-month old Paolo Trotta died in May 1993. His death was initially attributed to Sudden Infant Death Syndrome (SIDS), but after a second post-mortem, the authorities concluded that Paolo was abused and his death was ruled a homicide. Marco Trotta, his father, was convicted of second degree murder, aggravated assault, and assault causing bodily harm, while Paolo’s mother Anisa was convicted of criminal negligence causing death and failure to provide the necessaries of life. She was acquitted on the charge of manslaughter.

The Trottas applied to the OCA for disclosure as a result of the doubt that has, in the years following these convictions, been cast upon the work of forensic pathologist Dr. Charles Smith. Dr. Smith performed the second autopsy on Paolo and testified for the Crown. Based in part on the doctor’s testimony, the Trottas were convicted on the above charges. However, Dr. Smith subsequently came under criticism in the media and other cases, and the Office of the Chief Coroner was compelled to review some of his past work. These developments formed the basis for the Trottas’ application for disclosure at the OCA. This application was denied, for reasons to be explored below.

The decision regarding the application for disclosure is mainly at issue in the SCC appeal, and I would like to focus the majority of this post on this thwarted disclosure application. However, it is important to note that the OCA’s dismissal of the conviction appeal will also be analyzed by the SCC, specifically the question of whether the trial judge undermined the appellants’ right to a fair trial. As part of the OCA appeal, the appellants alleged that the trial judge erred in law by failing to exclude potentially prejudicial evidence adduced by the Crown, and that the trial judge made several errors in his instructions to the jury. The OCA found that though the trial judge should have excluded certain demeanour evidence offered by the Crown, and that there were errors in the judge’s instructions to the jury, these errors did not account to a substantial wrong or miscarriage of justice. Accordingly, the OCA dismissed the appeal. The full decision can be found here.

The appellants brought the disclosure application to the OCA in order to introduce fresh evidence on the appeal. This fresh evidence would serve to challenge Dr. Smith’s competency and objectivity by demonstrating that his work in other cases was not competent, and that he was biased in favour of the Crown. The appellants planned to argue that this evidence rendered his opinion evidence in their case unreliable. In order to prove this, the applicants sought materials associated with reviews of Dr. Smith’s work in previous criminal matters, as well as material provided by Crown attorneys in response to inquiries from the Attorney General’s Department.

In its written decision, the OCA first elaborated on the jurisprudence surrounding disclosure and fresh evidence. The Crown is obliged to make timely disclosure to an accused of all relevant information in the Crown’s possession, as the SCC asserts in Stinchcombe. The Court of Appeal defines relevant information as that in which a reasonable possibility exists that the evidence may assist the accused in making a full answer and defence. The Crown must disclose any information that surpasses this low relevance hurdle, unless the Crown can establish a privilege that precludes disclosure.

The resolution of disclosure disputes on appeal requires a different analytical framework. The OCA outlined two reasons for this alternate approach: a convicted accused is no longer presumed innocent, and the accused has exhausted his or her right to make a full answer and defence. Yet the accused still has broad rights of appeal under the Criminal Code, RSC 1985, c C-46: the accused may challenge the legal and factual aspects of the trial record, and may also adduce fresh evidence under s. 683(1) if the interests of justice so require. These rights, along with the court’s wide remedial powers, are designed to maximize protection against wrongful convictions.

To obtain production, an applicant must first demonstrate a connection between the request for production and the fresh evidence they propose to adduce. In a fresh evidence motion, the applicant must show that there is a reasonable possibility that the material sought could assist on the motion, either by yielding admissible fresh evidence or by assisting in obtaining such evidence. Then the applicant must demonstrate that there is a reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal. Both links must be made in order to find a reasonable possibility that the material sought could assist in the prosecution of the appeal; only then will the court require the Crown to disclose this material.

In the case under consideration, the OCA found that the applicant established the first link, but not the second. Counsel for Mr. Trotta had a sense of the nature, if not the specifics, of the content of the material sought. There was a demonstrable link between the desired material and the evidence that would challenge Dr. Smith’s competence as a pediatric pathologist, as well as his objectivity when testifying for the Crown. However, the second link was not established. The Court of Appeal focused its analysis on the common law requirement that fresh evidence, considered with the rest of the evidence adduced at trial, is reasonably expected to affect the verdict. If evidence is not sufficient to give cause for concern over the verdict, it serves no purpose at the appellate stage.

When deciding whether the evidence at issue would indeed create this cause for concern, the Court of Appeal looked at the grounds of appeal in the applicant’s factum. One of the grounds alleged that the trial judge misstated Dr. Smith’s evidence, which the OCA found to have nothing to do with Dr. Smith’s competence or objectivity. The two other grounds of appeal suggested that Dr. Smith was biased in favour of the Crown, but the OCA did not find how evidence of Dr. Smith’s Crown bias in other cases could assist in advancing the causes of appeal in this case. The OCA said that the trial record speaks for itself, and that the trial transcript should have been reviewed, not Dr. Smith’s actions in other cases. The applicant therefore did not offer any evidence to suggest that the opinions given by Dr. Smith were debatable or controversial. The OCA did not see how a reasonable trier of fact could possibly find the opinions given in this case to be unreliable solely based on Dr. Smith’s conduct in other cases. The manner in which Dr. Smith chose to express his opinions could be the subject of controversy on appeal, but would not be illuminated by evidence of his conduct in other cases. It was ultimately found that evidence questioning Dr. Smith’s competence and objectivity in other cases could not affect the verdict in this case. Consequently, this evidence could not be received as fresh evidence on appeal, and the application for production was dismissed.

The SCC’s consideration of the rules of, and standard of relevance required for, post-conviction disclosure will be quite interesting to observe. It is clear from Trotta that the requirement of reasonable probability that the evidence produced will be received as fresh evidence is highly subjective. How relevant must the evidence be to compel disclosure? What is the standard of reasonability? These are questions left unanswered in the OCA case. Though the OCA found that evidence of Dr. Smith’s Crown bias in other cases had no bearing on his finding in this case, the SCC may view the relevance of his other findings too compelling to leave undisclosed. By the end of next week, the SCC will be on its way to determining the questions left unanswered by the current test of post-conviction disclosure.

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