COURT OF APPEAL FOR ONTARIO

DATE: 20000111

DOCKET: C12092

McMURTRY C.J.O., ROSENBERG and MOLDAVER JJ.A.

B E T W E E N :

Brian H. Greenspan,
Sharon E. Lavine, and
HER MAJESTY THE QUEEN
Peter Copeland,
for the appellant

Respondent

• and -

John J. Corelli,
Shawn Porter, and
Catherine A. Cooper,
CHRISTOPHER GORDON McCULLOUGH
for the respondent

Appellant

Heard: November 3 and 4, 1997;
September 8, 9 and 10, 1998;
December 3, 1998;
November 1, 1999; and
December 13 and 14, 1999

On appeal against his conviction by Mr. Justice P. Philp, sitting
with a jury, on December 18, 1991 and against the sentence
imposed on January 24, 1992

ROSENBERG J.A.:

[1] B. A. P. was sexually assaulted, forcibly confined, and
murdered on the evening of February 13, 1989. Two men, Steve
Clarke and Terry Pearce, pleaded guilty to various offences for
their involvement in the murder. Clarke, who became the Crown’s
principal witness at the appellant’s trial for first degree
murder, pleaded guilty to forcible confinement and to being an
accessory to the murder after testifying at the appellant’s
preliminary inquiry. Clarke received four years' imprisonment.
Pearce, who was originally charged with first degree murder with
the appellant and a fourth man, Nicholas Nossey, pleaded guilty
to manslaughter after the appellant was convicted of second
degree murder, and received seven years' imprisonment. Pearce
did not testify at the appellant’s trial. However, his then
common-law spouse, Tammy Waltham, was an important Crown witness.
Nossey, who was tried with the appellant, was acquitted. The
appellant was convicted of second degree murder and sentenced to
life imprisonment without parole for eighteen years. After the
murder trial, the appellant pleaded guilty to counselling to
commit murder. The intended victim of the murder plot was
Clarke. The appellant was sentenced to ten years' imprisonment
concurrent for the counselling conviction.

[2] The appellant appeals his conviction and sentence for murder
and the sentence for counselling. The nature of the conviction
appeal evolved over time. Originally, the main grounds of appeal
concerned fresh evidence relating to Tammy Waltham and the
reasonableness of the verdict. Tammy Waltham testified before
the court and recanted most of her evidence implicating the
appellant. The appeal was then adjourned for further argument.
During the adjournment, counsel for the appellant learned that a
second witness also wished to recant. This witness, D.,[^1] had
been the appellant’s cellmate for part of the time the appellant
was awaiting trial. He testified at the trial that the appellant
had confessed to him. D. was also involved in the plot to kill
Clarke. He notified the authorities, who arranged for the
appellant to speak to an undercover police officer posing as a
“hit man”. D. also testified before this court and recanted
virtually all of his evidence implicating the appellant. The
case was adjourned again for argument.

[3] During this adjournment, the Centre of Forensic Sciences did
DNA testing of items associated with the deceased, the deceased’s
car, and the place where the body was found. The appellant seeks
to have the results of this testing admitted as fresh evidence.
The Crown concedes that this evidence meets all of the
requirements for fresh evidence. In particular, the DNA evidence
has a significant impact on Clarke's version of the events and
the role allegedly played by the appellant in the killing.
Accordingly, the Crown agrees that the appeal should be allowed.
The Crown submits that the proper disposition is a new trial.
The appellant seeks an acquittal in this court. For the reasons
that follow I would admit the results of the DNA testing and the
evidence of D., allow the appeal and order a new trial. I would
also allow the sentence appeal and reduce the sentence for
counselling to commit murder to time served.

THE FACTS

The forensic evidence

[4] On February 13, 1989, the deceased, a 55 year old school
teacher, went missing after driving her daughter to a night
school class. At the time, she was driving her husband’s car.
Her partially-clad body was found two days later in an isolated
field on Tapleytown Road. The police found two napkins near the
body. For reasons that have not been explained, the Centre of
Forensic Sciences initially reported that there were no
significant findings in relation to these items. Testing done
this year now shows that one napkin was soaked with semen and the
other contained three pubic hairs. A DNA profile was generated
from the semen. It does not match the appellant, Clarke, Nossey,
or Pearce. A partial DNA profile was generated from the pubic
hairs. The profile is a mixture of DNA from at least two people,
at least one of whom is male. The male who is the source of the
semen cannot be excluded as the male whose DNA was found on the
pubic hair. The other person whose DNA was found on the pubic
hair is not the deceased.

[5] The deceased’s husband’s car was found a day after the body
was discovered. The vehicle was parked in a garage on Grandville
Street. The police found a number of cigarette butts in the
vehicle. Some can be associated with the deceased’s husband.
The other cigarette butts were subjected to serology testing
prior to trial and those results were in evidence at the trial.
Based on that testing, it was possible that Clarke had smoked
some of these cigarettes, bearing the brand name Player's Light.
None of the cigarettes could be linked to the appellant through
the serology testing. The DNA testing that could be done this
year now eliminates all of the four men as having smoked any of
these cigarettes. The DNA profiles from the cigarettes relate to
three other persons, two of whom are male. These are not the
same persons whose profiles were generated from the napkins.
Some strands of hair were also found in the car. These hairs
were also subjected to DNA testing this year. They relate to a
further unknown male.

[6] There was evidence that the deceased had been sexually
assaulted before she was killed. At the time of the initial
investigation, oral and vaginal swabs were taken and examined by
the Centre of Forensic Sciences. At the time of the trial, the
Centre reported that no semen was detected. Further
investigation this year disclosed that a very small amount of
sperm, two spermatozoa heads, had been detected on one of the
oral swabs. At present, the technology does not permit DNA
testing of this material.

[7] To summarize, the fresh DNA evidence shows four unknown
males and two other unknown persons linked to evidence found in
the deceased’s car and near the body possibly connected with the
killing. The four men, including the appellant, thought to have
had some involvement with the killing and with the vehicle have
been eliminated as being any of these six people.

Steven Clarke’s evidence

[8] Over a year after the murder, Steven Clarke was approached
by the police for information about it. In the next year and a
half, he gave a series of statements in which he gradually
disclosed his involvement in the offences and implicated a number
of other persons including the appellant, Pearce and Nossey. In
the course of these disclosures, Clarke implicated two persons,
Mitch Petrola and Ray O’Brien, who were clearly innocent, and a
third person, Ratti, who has never been charged.

[9] Clarke’s evidence at trial was that he, Nossey and the
appellant met by chance in an abandoned parking area on
Grandville Street. The appellant and Nossey were ingesting
cocaine and beer. Clarke was smoking Player's Light cigarettes.
The three men went to a nearby grocery store parking lot to steal
a car. According to Clarke, when the deceased returned to her
car they stole her keys, forced her into the backseat and drove
away. They drove to Pearce’s home because Nossey wanted Pearce
to drive the car. Pearce and Tammy Waltham came out of the
house. Waltham entered the car briefly until she was told to get
out by Pearce and Clarke. They then drove off, with Pearce
driving and Clarke in the front passenger seat. Nossey and the
appellant were in the backseat with the deceased. In the course
of the trip, the deceased was thrashing around and the appellant
was hitting her. Pearce drove to a field off Cascade Avenue
where Nossey and Clarke removed the deceased.

[10] According to Clarke, the appellant then began to rip the
deceased’s clothing and slap her. Clarke assisted in ripping off
the clothes and he fondled her breasts. [In fact, the deceased’s
clothes had not been ripped.] He then stopped and watched while
the appellant digitally penetrated the deceased and raped her.
Clarke claimed that he tried to get the appellant to stop and
then he walked away. At some point, he observed the appellant
choking the deceased. He and the others joined in by kicking
her. Nossey then took a rope from the car’s trunk. The
appellant tied the rope around the deceased’s neck, hands and
feet. Clarke and Pearce held her arms while the appellant was
doing this. They then tried to put the deceased into the trunk
but were unable to do so. [The deceased was a large woman.]
They then put her in the passenger compartment and with Pearce
driving and the appellant giving directions, they drove to the
Tapleytown Road field where they left the body.

[11] They then drove back to the Grandville area and split up
some items they had taken from the deceased. The appellant and
Nossey left and Pearce and Clarke parked the vehicle in the
Grandville garage. The following morning, Pearce called Clarke
to assist him in cleaning the car. The two met at the garage and
used some gasoline to wipe off the car. Pearce stole the rear
tires.

Tammy Waltham’s evidence

[12] At the same time that the police were in contact with
Clarke, they were also investigating Pearce. They spoke to him
on several occasions and put increasing pressure on him to
cooperate. At one point, the police falsely told Pearce that his
fingerprints had been found in the car. On May 22, 1990, Pearce
admitted involvement in the killing and he was charged with
forcible confinement and released on bail. During this time, the
police were also surreptitiously intercepting the conversations
of Pearce and Tammy Waltham. Waltham testified at trial as a
Crown witness.

[13] At trial, Waltham testified that the appellant arrived in
the deceased’s car at about 7:00 p.m. on February 13, 1989. The
appellant was in the driver’s seat, Nossey was in the back seat
behind the driver, and the deceased was in the front passenger
seat. Pearce was told that his services might be required later.
The car returned about half an hour later and Pearce and Waltham
both entered the front seat. On this occasion, Clarke was also
present, seated in the back seat. Nossey was also in the back
seat and the deceased was between them. The appellant was in the
front seat. Pearce was asked to drive as everyone else was
impaired. The appellant told Waltham to get out and she obeyed.
The deceased looked anxious and frightened and tried to signal
Waltham to call the police. She did not do so. Pearce returned
over four hours later. He was shaking and crying. They went out
to a restaurant and on the way walked through the garage where
the deceased’s car had been left. They saw the appellant
attempting to clean off the foot pedal of the car. The appellant
confessed to having murdered the deceased. Later that night
Waltham and Pearce went out in an attempt to find the deceased to
help her if she was still alive. They could not find her.

[14] Like Clarke, Waltham’s statements to the police underwent an
evolution. Before she spoke to the police, her wiretapped
conversations indicate her belief that Pearce is innocent. A few
weeks later, as Pearce was given more information by the police
and Clarke, Waltham spoke to a friend and said that she now
recalled an incident when Pearce, Clarke and other men drove a
lady home. At trial, she testified that she first spoke to the
police on May 23, 1990. In the course of this statement she
viewed a photographic lineup and identified someone named Rennie
(who she knew was not involved) as one of the persons who had
been in the car with the deceased when the men came to her home
the night of the killing to pick up Pearce. She did not identify
Clarke or Nossey as one of these men. She did implicate the
appellant. In the next month, Waltham had a number of contacts
with the police and she eventually implicated Clarke and Nossey.
At trial, Waltham testified for the first time that about a month
after the killing she saw Clarke and he admitted that he alone
had killed the deceased by choking her. Waltham had not revealed
this information to the police or in her preliminary inquiry
testimony.

[15] Soon after the appellant was convicted, Tammy Waltham
contacted a reporter at the Hamilton Spectator and told the
reporter that she had lied at the trial. As a result of this
disclosure, the police commenced a further investigation.
Waltham gave a statement confirming that she had lied at the
trial. Waltham testified before this court over a period of two
days. She testified that her trial testimony was untrue, that
she had not seen the appellant in a car along with three other
men on February 13, 1989. She claimed that she gave the police
false information because of pressure from the police and
Pearce’s relatives. She testified that her information about the
involvement of the appellant and Nossey was fed to her by the
police or simply made up. She testified that in fact the only
person she saw was Clarke who came to her home alone in a stolen
car on Friday night. They refused to go with Clarke because they
had decided to spend the Valentine’s weekend together. When it
was pointed out to Waltham that the deceased was abducted on the
night of February 13th, which was a Monday, Waltham conceded that
Clarke’s attendance had nothing to do with February 13th.

[16] The essential point of Waltham’s testimony before this court
was that the police fed her the information implicating the
appellant. She then provided this information back to the police
in her oral statement on May 23, 1990 and a written statement she
gave on May 29th, after meeting with a lawyer. This assertion is
patently untrue. The police evidence is that their first
conversation with Waltham was on May 23rd. This is consistent
with Waltham’s trial testimony and with the contents of the
wiretap conversations intercepted prior to May 23rd. It is
unnecessary to set out those conversations, nor the many
inconsistencies in Waltham’s testimony before this court. Many
of her assertions about the police providing her with information
are provably false by independent evidence. In my view, she was
a completely incredible witness before this court. I will return
to the effect of this finding when I discuss the admission of her
evidence.

The inmate witnesses

[17] Six inmates were called at the trial to testify about
admissions the appellant made to them while he was incarcerated.
D. gave the most extensive evidence. The appellant was arrested
on May 24, 1990 and was kept in custody pending his trial at the
Hamilton Wentworth Detention Centre. D. became the appellant’s
cellmate in July. Initially, the appellant maintained his
innocence. Gradually, he admitted that he had raped and killed
the deceased. He also said that Pearce, Nossey and Clarke were
involved. He said he was not worried about the forensic evidence
because he did not ejaculate. He said that Clarke also raped the
victim. The appellant asked D. to assist him in concocting an
alibi.

[18] D. also testified that the appellant asked him to arrange
for Clarke to be killed. The appellant was concerned that Clarke
was the only witness who could hurt him. D. told the police and
the police provided D. with a telephone number for a “hit man”.
D. gave the number to the appellant. The appellant made contact
with the hit man on the telephone and then in a conversation in
the visiting area of the detention centre.

[19] Constable Baltin posed as the hit man. He briefly spoke to
the appellant on the telephone and then met with him at the
detention centre. Following the meeting, Baltin made notes of
the conversation. In his testimony, the appellant conceded that
the conversation as recorded by Baltin was mostly accurate. He
disputed the interpretation Baltin placed on some of the words.
In the conversation, the appellant said that he did not take part
in the killing and wanted Clarke killed because he was falsely
accusing him. However, the conversation also included the
following:

Baltin: So there’s just the two of you.

Appellant: No, there was four of us
but the other two I’m not too worried about.

[20] The appellant testified that he meant four of them were
charged. In answer to a question whether he thought Nossey was a
problem, the appellant said “He hasn’t said anything. I told him
right at the start don’t say fuck all to nobody, and so far he
hasn’t.” The appellant said that after the killing he would show
Nossey the newspaper and tell him, “See what happens?” The
appellant denied making this statement. The appellant also
testified that D. had persuaded him to kill Clarke.

[21] D. also testified before this court. He too recanted his
testimony. He testified that the appellant never confessed to
the murder. Rather, D., who had contacts with the police even
before he became the appellant’s cellmate, learned of the police
theory from one of the investigating officers. He then weaved
information provided by the appellant and presented it to the
police as if it were an admission by the appellant. D. testified
that he convinced the appellant that he would inevitably be
convicted and his only option was to kill Clarke. D. then
arranged with his police contact to have the “hit man” meet the
appellant. D. testified before this court that the officer knew
that his evidence was fabricated. The police gave D. some
assistance with outstanding charges. He was placed in the
witness protection programme because of his testimony against the
appellant. The police also provided him with money, and helped
him get $8,000 in reward money. D. testified that following the
trial he was concerned for his safety, if he should recant.

[22] D. was an impressive witness in this court and would have
been an impressive witness before the jury. He is obviously an
accomplished liar. The police officers involved with D. have
denied some of his allegations, particularly the allegation that
they knew D. was fabricating evidence. There are also some
problems as to how D.’s recantation evolved. His allegation that
he was afraid of the police is inconsistent with his conduct
throughout the years since the trial. Nevertheless, I cannot say
that I am satisfied that his testimony that he fabricated the
admissions by the appellant and his role in the plot to kill
Clarke is untrue. I will return to the effect of this finding
below.

[23] The evidence of the other inmate witnesses may be briefly
summarized. K. was the appellant’s cellmate after D. The
appellant told K. that he and two others grabbed a lady in a
parking lot, took her to a deserted road, took her out of the
trunk, strangled her, and threw her into a field. The appellant
said that one of the others fondled the victim and that he
strangled her with a rope. The appellant also had K. write out a
statement in which the appellant allegedly told K. that he had
just had a visit from a friend of D.’s to try and get drugs but
later realized that this person was a police officer. This was
part of the appellant’s attempt to mitigate the damage once he
realized that D. had set him up with an undercover police
officer.

[24] M. was on the same range as the appellant during most of the
time covered by the inmates D. and K. Originally, the appellant
maintained his innocence when talking to M. However, in the fall
of 1990, the appellant began to discuss his proposed alibi with
M. and in doing so he drew a map. The map, which was an exhibit
at trial, shows the approximate location where Clarke said the
killing took place, i.e. at the Cascade field. The next day, the
appellant admitted that he participated in the murder. He said
that he, Clarke and Nossey abducted the deceased from the grocery
store parking lot and took her to Pearce’s house. Pearce came
out with Waltham and they told her to leave. Pearce then drove.
During the drive the appellant was hitting the deceased. When
they stopped, they took her out of the car and Clarke fondled her
and the appellant raped her. The appellant then strangled her.
They tried to put her in the trunk but she would not fit and so
they put her in the car and drove to Tapleytown Road where they
dumped her body. The appellant also said that they left the car
in a garage and wiped it down with gasoline. The appellant told
this witness, as well as D. and K., that he threw the deceased’s
purse in the Kenilworth Road sewer.

[25] R. was with the appellant in the holding cells at provincial
court. He did not know the appellant and was merely a witness to
a conversation in which the appellant was bragging about how
Clarke was “screwing up” while giving his evidence. According to
the appellant, Clarke was not sure if there were three or four
people involved. The appellant then said that there were
actually four people.

[26] B. became the appellant’s cellmate after K. According to
B., the appellant told him where each person sat in the
deceased’s car. B. also testified that the appellant attempted
to have him give a written statement in which he denied that the
appellant said anything to him about the murder.

[27] R.R. was Pearce’s cellmate for some period of time and
therefore came in contact with the appellant. The appellant told
R.R. that he was “all screwed up” on drugs and alcohol when the
murder occurred. The appellant was bragging about his
participation in the murder and discussed getting certain people
out of the way such as Waltham and the Crown Attorney.

[28] The appellant denied making the admissions of guilt to the
various inmate witnesses. There were also serious concerns with
these witnesses. They had criminal records and were seeking
favours of one sort or another in exchange for their information
about the appellant.

The Wiretap Conversations

[29] The police surreptitiously intercepted the appellant's
communications before and after the arrest. The conversations
are, on the whole, equivocal and consistent with the appellant's
belief that his conversations were being recorded.

THE GROUNDS OF APPEAL AGAINST CONVICTION

[30] While counsel for the appellant raised a number of grounds
of appeal against conviction, developments in the course of the
appeal proceedings make it necessary only to deal with the fresh
evidence and the reasonableness of the verdict.

ANALYSIS

The fresh evidence

[31] The test for fresh evidence as set out in R. v. Palmer,
1979 8 (SCC), [1980] 1 S.C.R. 759 at 775 is as follows:

(1) The evidence should generally not be
admitted if, by due diligence, it could have
been adduced at trial provided that this
general principle will not be applied as
strictly in a criminal case as in a civil case . . .

(2) The evidence must be relevant in
the sense that it bears upon a decisive
or potentially decisive issue in the
trial.

(3) The evidence must be credible in
the sense that it is reasonably capable
of belief, and

(4) It must be such that if believed it
could reasonably, when taken with the
other evidence adduced at trial, be
expected to have affected the result.

[32] I have already stated my opinion that Tammy Waltham’s
evidence before this court was not credible. Her recantation and
her reasons for recanting are not credible. In R. v. Babinski
(1999), 1999 3718 (ON CA), 44 O.R. (3d) 695 (C.A.) at 716, this court held as
follows:

If the appellate court, which has the obligation to consider
the sufficiency of the fresh evidence, is satisfied that the
fresh evidence is not credible and does not affect the
credibility of the testimony given by the witness or another
witness at the trial, the evidence cannot meet the third Palmer
requirement, and it is inadmissible.

[33] I am satisfied that this holding applies to Waltham’s
proposed fresh evidence. That evidence is not credible and does
not affect the credibility of her trial testimony or the
testimony of any other witness at the trial. I should point out
that this case is unlike Palmer in one respect. In Palmer, the
Supreme Court of Canada, in concluding that the proposed fresh
evidence of the recanting witness was not credible, was assisted
by the obvious credibility of the witness’s trial evidence. In
this case, having had the benefit of seeing Waltham testify and
the opportunity to examine her evidence against other objective
facts, I have been able to reach the conclusion that her proposed
fresh evidence is incredible, without the need to pass on the
veracity of her trial testimony. The weight to be attached to
her trial testimony is a matter to which I will return when
dealing with the reasonableness of the verdict.

[34] The proposed fresh evidence of the inmate witness D. raises
another issue. In my view that evidence should be admitted. It
clearly meets the first two parts of the Palmer test. While
parts of D.’s proposed fresh evidence are suspect, I cannot say
that I am satisfied that his testimony that he fabricated the
admissions by the appellant and his role in the plot to kill
Clarke is untrue. In those circumstances, the court is required
to consider the application of the fourth Palmer criterion, as
this court held in Babinski at p. 715:

[W]here the court of appeal, having fully reviewed the
record, is unable to find that the evidence is not credible, even
though it is unable to say that it is credible, the court must go
on to consider the fourth Palmer requirement on the theory that
the evidence may nonetheless have substantial impeachment value
if made available to a reasonable trier of fact.

[35] In my view, D.’s testimony before this court, if believed,
could reasonably, when taken with the other evidence adduced at
trial, be expected to have affected the result. While D. was
only one of six inmate witnesses, he gave the most extensive
evidence and he was involved in the plot to kill Clarke. That
plot was important evidence of consciousness of guilt on the
appellant’s part. If D.’s fresh evidence were believed, it would
support the appellant’s testimony about the plot and could
undermine the value of that evidence as circumstantial evidence
of guilt. In addition, as I have previously observed, D. is an
impressive witness. His testimony about the admissions made to
him by the appellant would carry some weight with the jury. His
recantation would have been similarly persuasive before the jury.
It is true that many of the things testified to by D. were also
related by the other inmate witnesses. However, all of these
witnesses were suspect and D.’s impressive credibility would have
bolstered their evidence as well. His recantation could also
tend to impact on the reliability of the other inmate witnesses
who had similar motives for implicating the appellant. Most of
the inmate witnesses were hoping for and expecting some
assistance from the authorities. The fact that, if believed, D.
was prepared to falsely implicate the appellant to obtain that
assistance would give the jury pause when considering the weight
to be attached to other similarly situated witnesses.
Accordingly, I would admit D.’s fresh evidence.

[36] As indicated, the Crown concedes that the new forensic
evidence meets the Palmer requirements and should be admitted.
While I agree with that concession, it is necessary to put that
evidence in context. At the trial, the jury was aware that there
was no forensic evidence connecting the appellant with the crime
scene or the car. The main value of the forensic evidence at the
trial was that it tended to support Clarke’s assertion that he
had been in the car because he claimed to have been smoking
Player’s Light cigarettes that night and that brand of cigarette
butt was found in the deceased’s car. The serology evidence in
respect of those cigarette butts did not exclude Clarke as having
been in the car. The fresh evidence suggests that this part of
Clarke’s evidence may have been fabricated to fit some of the
known facts. It does not exclude the possibility that Clarke was
in the car at some point. Assuming that some of the cigarettes
were at least connected with the deceased’s abduction, and this
seems a reasonable conclusion, the fresh evidence tends to
undermine Clarke’s testimony as to how the appellant was involved
in the killing. The more unknown males placed in the car at the
time of the abduction, the less likely it is that the appellant
was present for any length of time. On the other hand, the fresh
evidence about the cigarettes is not conclusive. It will be
recalled that the deceased was driving her husband’s car the
night she was killed. Unfortunately, by the time of the trial
Mr. Perrin had died and so his daughter gave the only evidence
about the car. She could not say who might have been in the car
before the deceased took it out that night. She could only say
that her father was a smoker, was in the habit of keeping the car
clean, and she did not recall anyone smoking in the back seat.

[37] The further evidence about the DNA analysis of the two
napkins found where the body was dumped is also very important
but not conclusive. If these napkins are connected to the sexual
assault and the killing, it is obvious that Clarke is lying about
who sexually assaulted the victim. Obviously if Clarke had been
faced at trial with this evidence, the jury would have had
further reason to doubt that he was telling the truth.

[38] I attach less importance to the finding of the two
spermatozoa in the deceased’s mouth. The appellant argues that
this shows Clarke is lying about the manner of the sexual assault
because he did not refer to any forced oral sex. However, the
fresh evidence shows only that a small amount of semen was in the
deceased’s mouth and it might well have been transferred there in
the course of the further physical assaults upon her if, for
example, the assailants had semen on their hands.

[39] Accordingly, I would admit the DNA evidence as fresh
evidence. It remains to decide whether this court should order a
new trial or enter an acquittal. In R. v. Stolar, [1988] 1
S.C.R. 480 at 488, the court held that a new trial will not be
required in every case, for “there will be cases where the new
evidence may be so conclusive that the Court of Appeal can
determine the proceedings on its own”. On behalf of the
appellant, Mr. Greenspan submits that while the fresh evidence
may not itself be conclusive, that evidence when considered with
what he submits was already a fragile Crown’s case, renders the
verdict unreasonable.

[40] There is considerable merit to this submission. The
forensic evidence substantially undermines Clarke’s credibility.
On the other hand, it is apparent that the jury was very aware of
the frailties of Clarke’s evidence. It was before the jury that
Clarke had falsely implicated at least two other persons and his
story was at odds with Waltham’s version of events. Had the jury
accepted Clarke’s testimony in full, they would have convicted
the appellant of first degree murder. It seems likely the jury
was only prepared to accept Clarke’s evidence to the extent it
was supported by some other evidence. Clarke’s evidence was
supported in part by the evidence of Constable Baltin. It would
be open to a reasonable trier of fact to find that the appellant
admitted to Baltin that he was present for the murder with three
others. Thus, while the jury was not prepared to accept Clarke’s
description of the sexual assault and the killing, they were
prepared to find that the appellant was present in circumstances
that made him a party to the killing.

[41] D.’s fresh evidence substantially undermines the value of
the admissions the appellant allegedly made to him and the value
of the murder plot as circumstantial evidence of guilt. The fact
remains, however, that there was evidence that the appellant made
admissions of one kind or another to five other inmates. D.’s
fresh evidence does also impact on the credibility of these
inmates. As well, the alleged admissions are in some respects
inconsistent with the new forensic evidence. However, I cannot
say that evidence must be accorded absolutely no weight. The
evidence of the inmate M., supported in part by the map drawn by
the appellant, is of some significance.

[42] With respect to Tammy Waltham, since I would not admit her
proposed fresh evidence, her trial evidence stands unimpaired by
her purported recantation. On the other hand, that trial
testimony was of questionable value. Her story clearly evolved
over time and like Clarke, she implicated another person, who as
of yet has never been shown to have had a role in the crime. She
had an obvious motive to implicate other persons in an attempt to
minimize the role of her common-law husband, Pearce. As with the
inmate witnesses, I would attach little weight to her testimony.

[43] In conclusion, while in my view, the case against the
appellant has been significantly weakened, the appellant has not
shown that even with the fresh evidence, the verdict is
unreasonable as that test has been set down by the Supreme Court
in R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, R. v. W. (R.), [1992] 2
S.C.R. 122 and R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474. It will be for
Crown counsel to decide whether it is in the interests of justice
to proceed with a new trial given the time that has elapsed and
the substantial damage that has been done to the credibility of
important Crown witnesses.

THE SENTENCE APPEAL

[44] In the course of this appeal, Moldaver J.A. released the
appellant from custody pending completion of the appeal. By that
time, the appellant had served almost seven years of the sentence
and had spent fifteen months in pre-trial custody. The trial
judge gave the appellant no credit for the pre-trial custody on
the sentence for counselling to commit murder because pre-trial
custody would be taken into account on the parole eligibility for
murder pursuant to s. 746 of the Criminal Code. Now that the
murder conviction has been set aside, I think it proper to take
the pre-trial custody into account. The trial judge also imposed
sentence on the appellant on the basis of the facts as testified
to by D. at the trial. That version of events can no longer be
supported. For these reasons, I would reduce the sentence to
time served.

DISPOSITION

[45] Accordingly, I would admit the fresh evidence from the
Centre of Forensic Sciences and of D., allow the appeal from
conviction for murder, and order a new trial on second degree
murder. I would also grant leave to appeal sentence for
counselling to commit murder, allow the appeal, and reduce the
sentence to time served.

(signed) "M. Rosenberg J.A."

(signed) "I agree R McMurtry CJO"

(signed" "I agree M J Moldaver JA"

RELEASED: January 11, 2000

[^1]: The trial judge ordered that the identities of inmate
witnesses not be disclosed. That order continues.