Background Facts

The patient consulted Dr Colagrande for the purpose of undergoing a breast augmentation procedure. On 12 May 2014, the operation was performed. On 1 May 2015, when the patient consulted with Dr Colagrande again, she indicated that she wanted further breast augmentation and a lip enlargement. The patient subsequently alleged that during the consultation, Dr Colagrande made sexual advances toward her, including touching her inappropriately. Dr Colagrande claimed that during the consultation, the patient asked him for a refund (which he refused) and to perform further procedures on her for free. A main issue in the case went to credit.

Withdrawal of Complaint

On 16 December 2016, the patient went to the police station and informed police that she wished to withdraw her complaint. She stated that she had gotten personal and professional support (including from Victims of Crime and a psychologist) and had moved on. She signed a Withdrawal of Complaint form. On 24 January 2017 (about a week before the trial), the patient attended a conference with the Crown prosecutor where she indicated that she no longer wished to proceed with the case because 'the experience of going to court [made] her feel sick'. The Crown prosecutor informed her that the Crown would be proceeding with the case for public interest reasons. While the note from the meeting with the Crown prosecutor was provided to the defence before the trial, the details of the first attendance to the police station was not communicated until 3 February 2017 (the fifth day of the trial when evidence had concluded).

Submission by the Defence

At trial, the defence submitted that by not being made aware of the patient's attendance at the police station on 16 December 2016, it had been denied the opportunity to cross-examine her about issues that could have assisted its case, especially her consultations with the Victims of Crime and her psychologist. However, the defence did not make any application for a stay of the trial or to discharge the jury. On 6 February 2017, the jury convicted Dr Colagrande. On appeal, the defence applied for leave to adduce further evidence based on the new material.

Decision and Orders

The Court of Appeal examined the duty of the prosecution in criminal proceedings, under the Criminal Code (the Code), to make full and early disclosure of all evidence it wishes to rely on in the proceeding, and all things in its possession that would tend to assist the case of the accused. The Code relevantly provides that the documents which the prosecution must disclose to the defence include 'a copy of any statement of the witness in the possession of the prosecution'. The court also examined judicial authority that a miscarriage of justice is present 'where there has been a departure from the requirements of a properly conducted trial…'

The court unanimously agreed that the evidence received by the defence regarding the patient's attendance at the police station on 16 December 2016, was potentially relevant to issues of credit and could have assisted the case of the defence. It held that there was a real possibility that Dr Colagrande had been disadvantaged. The appeal was allowed, the conviction was quashed and a retrial was ordered.