R v Figliola

R. v. Figliola

2011 ONCA 457
Court of Appeal for Ontario — Rosenberg, Goudge and Blair JJ.A. | June 17, 2011

Background

Maria Figliola and Daniele Di Trapani were charged with first-degree murder in the death of Frank Figliola, Maria's husband. The Crown alleged Maria hired Dan (Di Trapani) to kill her husband. A key Crown witness was Teresa Pignatelli, a close friend of both accused who had important evidence about their movements on the night of the murder and their relationship.

At trial, the Crown successfully applied to have Pignatelli declared an "adverse witness" under section 9(1) of the Canada Evidence Act because her testimony contradicted previous statements to police. But then Crown counsel went much further — conducting a wide-ranging cross-examination suggesting Pignatelli was lying to protect both accused, essentially painting her as part of a conspiracy to cover up the murder.

Issues

1. Did the Crown improperly cross-examine its own witness in a way that prejudiced the accused?
2. Should Di Trapani's trial have been severed from Figliola's due to prejudicial evidence?

The Soobrian Problem

The Court of Appeal found that while the Crown was entitled to declare Pignatelli adverse and cross-examine her on prior inconsistent statements, they crossed a dangerous line. By suggesting she was lying to protect the accused, the Crown created what's called a "Soobrian scenario" — where attacking your own witness's credibility can make the jury think: if this witness is lying to protect the accused, then the accused must be guilty too.

The court emphasized that declaring a witness "adverse" under s. 9(1) only allows limited cross-examination on prior inconsistent statements — not a general attack on credibility. The trial judge should have immediately instructed the jury that even if they found Pignatelli incredible, they couldn't use that finding to conclude the accused were also incredible or guilty.

The Severance Disaster

Di Trapani had originally sought to have his trial severed because Geoffrey Gonsalves (Figliola's former lover) would testify that Figliola told him she hired "Dan" — a big, husky Italian connected to organized crime — to kill her husband. This evidence was admissible against Figliola but highly prejudicial to Di Trapani (whose name is Dan and who matches that description).

Initially, the trial judge ruled this identifying evidence would be excluded. But after eight weeks of trial, he reversed this ruling, allowing the Crown to present the full prejudicial evidence twice — once in chief and once on reply. The court found this mid-trial reversal created an injustice, as Di Trapani's counsel had prepared his entire defence strategy around the original ruling.

Key Takeaway

The Crown can't have it both ways — calling a witness and then destroying their credibility in a way that makes the accused look guilty by association.

This case shows how procedural safeguards in criminal trials exist for good reason, and courts will intervene when prosecutorial tactics cross the line from zealous advocacy into unfair prejudice.