R v Alvaro

R. v. Alvaro

[No citation provided]
Ontario Court of Justice — Justice B. Cayton | July 19, 2001

Background

Danyelle Alvaro was charged with disobeying a stop sign under the Highway Traffic Act. At trial, after the Crown finished presenting its case, defence agent Mr. Pelaccia told the court "I am not providing a defence." The Justice of the Peace then immediately moved to Crown submissions, heard the Crown's argument, and made a finding of guilt — all without ever asking the defence if they wanted to make submissions on the evidence that had been presented.

When the judge said "Okay" to Mr. Pelaccia after convicting, Pelaccia simply responded "Certainly, Your Worship" without objecting. Alvaro appealed the conviction, represented by agent T. Brown, arguing that the trial judge failed to give the defence an opportunity to make submissions before deciding the case.

Issues

1. Whether a defendant has the right to make submissions even when they elect not to call evidence
2. Whether the failure to offer this opportunity constitutes a fatal procedural error

The Right to Make Submissions

Justice Cayton was crystal clear on this point: "A person has a God given right to make submissions." Even when the defence chooses not to call evidence, they are still entitled to argue about the evidence the Crown has presented. The proper procedure is for the court to ask defence counsel if they wish to make submissions before moving to a decision.

The Crown prosecutor, Ms. Jackson, acknowledged that "obviously that opportunity should be given" but argued that the defence should have objected when the judge said "Okay" after the conviction. Justice Cayton rejected this argument, noting that by that point "the judge has already made his decision" — it was too late for the defence to meaningfully participate.

As Justice Cayton explained, the normal flow should be: Crown calls evidence, defence decides whether to call evidence, Crown makes submissions, defence makes submissions, then the judge decides. Here, the judge jumped straight from Crown submissions to conviction, cutting the defence completely out of the process.

Key Takeaway

You have an absolute right to make submissions even if you don't call any witnesses or evidence.

If a judge tries to convict you without asking if you want to make submissions, speak up immediately — don't wait until after the conviction is announced. Justice Cayton called this violation "typically fatal" and ordered an acquittal rather than a new trial, since it wouldn't be fair to make Alvaro face the charge again due to the court's procedural error.