COURT OF APPEAL FOR ONTARIO
Doherty, Feldman and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kyle Snyder
Appellant
Brian Snell, for the appellant
Craig Harper, for the respondent
Heard: March 10, 2011
On appeal from the convictions entered by Justice D. Belch of the Superior Court of Justice on May 22, 2007.
I
OVERVIEW
1The appellant was convicted of one count of robbery and one count of breaking and entering with intent to commit robbery. He received a sentence of 29 months. The appellant appeals his convictions.
2Counsel for the appellant advanced three submissions. First, he argued that the trial judge erred in admitting, for its truth, an out-of-court statement made by a Crown witness, Kevin Doucette. In that statement Doucette implicated the appellant in the robbery, but when he testified at trial, he denied knowing the appellant. The trial judge held that the out-of-court statement was sufficiently reliable to justify its admission under the principled approach to the admissibility of hearsay evidence.
3Counsel’s second argument rests on the alleged failure of the trial judge to adequately caution himself as to the dangers inherent in relying on the evidence of the two Crown witnesses, Doucette and Stuart Burgess. Both had participated in the robbery, had criminal backgrounds, and were, by any definition, unsavoury witnesses.
4Third, counsel submits that the affidavit of Stuart Burgess, sworn almost two years after the trial, should be admitted as fresh evidence on appeal. At trial, Burgess testified that he committed the robbery at the appellant’s request in exchange for the forgiveness of a drug debt he owed to the appellant. In the affidavit, Burgess recanted his trial testimony and claimed that the appellant had nothing to do with the robbery. According to his affidavit, Burgess falsely identified the appellant because he was told to do so by others who were involved in the robbery.
5I would dismiss the appeal. The trial judge, no doubt influenced by trial counsel’s express concession that Doucette’s statement was sufficiently reliable to justify its admission as an exception to the rule against hearsay, did not err in admitting the statement. Nor does the record offer any support for the claim that the trial judge failed to take into account the self-evident dangers associated with acting on the testimony of Burgess and the statement of Doucette. Finally, I would not admit the fresh evidence. Burgess’s affidavit, placed in the context of all of the statements he made, the evidence at trial and the cross-examination of Burgess on his affidavit, could not reasonably have affected the reliability of Burgess’s trial testimony implicating the appellant.
II
THE FACTS
(a) The robbery and arrests
6On October 19, 2005, Burgess and Doucette pushed their way into a residence located in Kingston, Ontario. They had reason to believe that a drug dealer lived in the residence and that they would find drugs and cash there. In fact, the drug dealer had moved out about a month earlier, although his brother still lived there.
7Burgess and Doucette entered the residence armed with lead pipes. A melee ensued during the robbery. Burgess was slashed across the face by one of the victims. Doucette was also stabbed. They fled the scene with a small amount of cocaine, cash and electronic items.
8Burgess was bleeding profusely from the slash across his face. His cohorts took him to the nearby hospital where, as it turns out, the police arrived shortly afterwards with the victims of the robbery. The victims identified Burgess and he was arrested at the hospital. Doucette was arrested the next morning.
9Burgess and Doucette gave audiotaped statements to the police after their arrests.1 In those statements, they both indicated that the appellant had asked them to commit the robbery. Both Burgess and Doucette eventually pled guilty to the robbery. Burgess testified at the appellant’s preliminary inquiry and implicated the appellant.
(b) Burgess’s testimony
10Burgess testified at trial that the appellant called him on the day of the robbery and offered to forgive a $600 drug debt if Burgess would take part in the robbery. The appellant assured him that the robbery would yield money and drugs and that it would be “a pushover”.
11According to Burgess, the appellant picked him up later that day outside of the hotel where Burgess lived. They drove to a street near where the robbery was to occur. Burgess testified that he, the appellant and Doucette sat in the backseat. A man and a woman Burgess did not know were in the front seat. The woman was driving. Burgess and Doucette left the car and went to the residence to commit the robbery. The other three remained in the vehicle parked nearby.
12Burgess described breaking into the residence and the ensuing melee during which he was slashed across the face and Doucette was stabbed. According to Burgess, he and Doucette fled the scene of the robbery and ran back to the vehicle where the others were waiting. Burgess testified that he gave the drugs he stole to the appellant and kept the money.
(c) Doucette’s evidence
13When called to testify, Doucette could remember committing the robbery and being stabbed by one of the victims. He could not recall whether anyone was with him during the robbery. Doucette testified that he knew Stuart Burgess. He insisted that he did not know and had never heard of the appellant.
14The Crown was allowed to cross-examine Doucette on the contents of the audiotaped portion of the statement that Doucette gave when he was arrested the morning after the robbery. Doucette repeatedly indicated that he was high on drugs when he made the statement, could not recall what he said, and could not comment on its truth. The trial judge admitted the statement under the principled exception to the rule against hearsay evidence.
15In his statement, Doucette indicated that the appellant called him on the morning of the robbery and asked him to commit the robbery. The appellant indicated that there were drugs and money available at the place that was to be robbed. Doucette’s statement was consistent with Burgess’s trial testimony in many respects. Like Burgess he described driving to the robbery from the hotel, in the back seat with Burgess and the appellant. An unknown male and female sat in the front. In his statement, Doucette described committing the robbery with Burgess and returning to the vehicle. He indicated that both he and Burgess were injured in the robbery. According to Doucette’s statement, the appellant gave him some of the money stolen in the robbery.
16Doucette was also confronted with a transcript of the proceedings at his guilty plea on the robbery charge. In those proceedings, he admitted facts that were consistent with the contents of his statement.
(d) The defence evidence
17The appellant did not testify. He did, however, call an alibi witness who indicated that the appellant was at home at the time of the robbery. The trial judge also admitted the appellant’s statement to the police in which he told them he was at home at the time of the robbery.
III
THE GROUNDS OF APPEAL
(a) The admissibility of Doucette’s statement
18The appellant submits that the audiotaped portion of Doucette’s statement to the police was not shown by the Crown to be sufficiently reliable to warrant its admissibility under the authority of R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. In his submissions, counsel for the appellant focussed on the appellant’s inability to effectively cross-examine Doucette on the contents of his statement. Counsel submitted that as Doucette purported to have no recollection of making the statement, he could not be meaningfully questioned about the truth of its contents or his reasons for making it. Counsel contends that without meaningful cross-examination, the other potential indicia of reliability could not carry the burden of admissibility.
19The ability to cross-examine Doucette on his statement was an important consideration in assessing the reliability of that statement. Clearly, Doucette’s professed inability to recall making the statement was an impediment to cross-examination. Crown counsel’s attempt to cross-examine him on the statement demonstrates the problems posed by Doucette’s insistence that he could not recall making it. Cross-examination on important aspects of the statement was, however, not entirely foreclosed. Doucette could be cross-examined on what was the crucial part of his statement – the appellant’s alleged involvement in the robbery.
20In his statement, Doucette could be heard identifying the appellant by name as the person who had put him up to the robbery. In his trial testimony, Doucette said that he did not know the appellant and had never heard of him. This inconsistency gave rise to the obvious question – how did Doucette come to name the appellant as the person who put him up to the robbery when, according to his testimony, he had never heard of the appellant? Nothing in Doucette’s professed inability to recall making the statement prevented full cross-examination on how he could name a person he claimed to have no knowledge of when he testified.
21Counsel for the appellant did not question Doucette about the obvious and important inconsistency between his statement and his testimony. I can only assume that he was not questioned because the answers would not have been helpful to the appellant. Cross-examination on this issue was certainly possible but apparently not advisable. Without a plausible explanation for identifying a person that he claimed never to have heard of, cross-examination of Doucette on the other details of his statement would have been of little assistance to the appellant’s cause.
22I am satisfied that the trial judge correctly held that Doucette’s statement was admissible for the truth of its contents. I reach this conclusion independently of trial counsel’s concession that the statement was sufficiently reliable to be admitted as an exception to the hearsay rule. I would add, however, that a concession like that made in this case must be given significant weight by this court.
(b) Did the trial judge give himself an adequate “Vetrovec” warning?
23The appellant submits that because the trial judge expressly adverted to some of the reasons for approaching the evidence of Burgess and Doucette with caution, it must be assumed that he did not bear in mind the other reasons for approaching their evidence cautiously. This argument assumes that a trial judge must, in his or her reasons, address “Vetrovec” concerns in much the same manner as the trial judge does in his or her instructions to a jury.
24There is no need to import the requirement of a “Vetrovec” caution designed to alert juries to the danger of relying on the evidence of certain witnesses into a trial judge’s reasons for judgment. Judges know the risks inherent in relying on witnesses like Burgess and Doucette. It would be pure formalism to require judges to articulate those dangers in their reasons.
25This was a straightforward, short, single-issue case. The Crown’s case depended on Burgess’s testimony and Doucette’s statement. The credibility of both was open to question for several obvious reasons. To argue that the trial judge did not properly scrutinize their evidence because he did not specifically enumerate all the reasons for that scrutiny is to suggest that he all but missed the central feature of the entire case. It would take more than a simple failure by the trial judge to expressly advert to the dangers inherent in relying on the evidence of witnesses like Burgess and Doucette to convince me that he did not have regard to those dangers in deciding the case.
(c) The admissibility of the fresh evidence
(i) The substance of the fresh evidence
26On February 5, 2009, almost two years after he testified at the appellant’s trial, Burgess swore an affidavit in which he recanted his trial testimony. In the affidavit he said:
Kyle Snyder was not involved in this robbery in any way whatsoever. I met Kyle a number of times since we had a similar circle of friends, but I did not know him well. We have never really spoken to each other. I never bought drugs from Kyle Snyder, nor have I ever owed him money. The reason I gave Kyle’s name is because the people who drove me to and from the scene told me to give his name as the person who planned the robbery if I was ever caught.
27In the affidavit, Burgess alleged that his drug dealer, whom Burgess refused to identify, had recruited him to assist in the robbery. Burgess stated that when the police interviewed him, he was high on cocaine and pain killers and the police pressed him for the names of other persons involved in the robbery until he gave them the appellant’s name.
28In addition to Burgess’s affidavit and his cross-examination on that affidavit, counsel filed a copy of Burgess’s statement to the police on the night of the robbery, the proceeding on his guilty plea, and his testimony at the appellant’s preliminary inquiry. These materials were not offered as freestanding “fresh” evidence but as context to assist in determining the admissibility of Burgess’s affidavit. Neither counsel suggested that those materials were not properly part of the fresh evidence motion.
29Burgess’s statement to the police on the night of the robbery was given under oath after Burgess was advised of his right to counsel. The interview was video recorded. Burgess told the police that he had received a telephone call from a friend that afternoon. Burgess owed the friend money from a marijuana transaction sometime earlier. The friend offered to forgive the debt if Burgess would go to a residence with another person and “stand there” while the other person robbed the cocaine dealer who lived there. Burgess initially said that he did not want to give the police the names of anyone else involved.
30Burgess went on in his statement to describe being picked up in a motor vehicle and driven to the scene of the robbery. He described the robbery, his injuries and his visit to the hospital. Burgess did not place the person who he said had recruited him for the robbery in the car. He referred to three other individuals in the car, including Doucette.
31After Burgess had gone over the robbery in some detail, one of the police officers said:
You don’t wanna tell us who the fellow that called you, you won’t tell us his name …
32Burgess replied:
His name is Kyle Snyder.
33Burgess explained that Snyder was a drug dealer from whom he had purchased marijuana some time earlier. Burgess owed Snyder money as a result of that purchase. As far as Burgess was aware, Snyder and Doucette had known each other in jail. After Burgess identified Snyder as the person who solicited his assistance in the robbery, the police did not ask Burgess whether Snyder was in the car before and/or after the robbery.
34Burgess testified at the appellant’s preliminary inquiry in May 2006, some seven months after he had been arrested and given his statement to the police. Burgess’s testimony was consistent with his statement, except in his testimony he placed the appellant in the car that had picked him up and driven him, Doucette and two others to the robbery scene and then to the hospital after the robbery.
35At the preliminary inquiry, Burgess testified that he had seen the appellant in jail while awaiting trial. The appellant had asked Burgess to testify on his behalf, but Burgess had refused. Crown counsel asked Burgess whether he had been threatened while in custody. Burgess answered:
Well, not necessarily. Let them come and threaten me …
I’m – I’m not scared of the threatening.
36Eight months after testifying against the appellant at the appellant’s preliminary inquiry, Burgess entered a guilty plea on the robbery charge. The facts read in to support the guilty plea identified Snyder as the person who enlisted Burgess to commit the robbery in exchange for forgiveness of a drug debt. Burgess expressly stated that the facts read in were true and that he had nothing to add to them. He also indicated that he had not been put under any pressure and was pleading guilty of his own free will, insisting that he wanted to take responsibility for his actions.
37In speaking to sentence, Burgess’s counsel stressed that Burgess had been cooperative with the police from the outset and that as a result of his cooperation he had been assaulted in the jail and eventually placed in protective custody. The sentencing judge made it clear to Burgess that he had committed a very serious crime that would call for a penitentiary term but for his guilty plea and cooperation. Burgess acknowledged the seriousness of the offence. Having regard to the plea and the cooperation, the trial judge imposed a sentence of 350 days, having taken into account 52 days of pre-trial custody.
38Burgess testified at the appellant’s trial on April 2, 2007. Once again, he indicated that the appellant had called him and arranged for him to participate in the robbery in exchange for the forgiveness of an outstanding drug debt.
39Burgess completed the custodial portion of his robbery sentence on September 7, 2007. However, he found himself back in custody in 2008 on unrelated matters. While in custody in either late 2008 or early 2009, Burgess was visited by a lawyer who he understood was an associate of counsel for the appellant. According to Burgess, he had no idea how it was that this person came to see him in jail. As he put it, the appearance of a lawyer came “totally out of the blue”.
40In his cross-examination on his affidavit, Burgess explained that the lawyer told him that the appellant was still in custody and was appealing his sentence. He asked Burgess some questions, apparently reading either from the trial transcript or disclosure materials. Burgess immediately decided to tell this lawyer that his testimony was false and that the appellant had nothing to do with the robbery. Burgess indicated that he felt badly about implicating an innocent person.
41A representative of the appellant visited Burgess in jail on February 5, 2009. Burgess signed the affidavit that was eventually tendered on the appeal. According to Burgess, he did not read or even look at the affidavit before he signed it. Burgess made it abundantly clear during his cross-examination on the affidavit that he did not care whether the affidavit was accurate. He acknowledged that several paragraphs were in fact inaccurate. He repeatedly insisted, however, that the appellant had nothing to do with the robbery.
42Although Burgess was cross-examined on his affidavit at some length on two occasions by Crown counsel, the cross-examination was never completed. On both occasions, Burgess became upset, declared that the questions were repetitive and left the cross-examination.
43Apart from Burgess’s explanation in his cross-examination, there is no evidence offered to explain the genesis of the recantation. According to Burgess, he had told no one that he had falsely implicated the appellant before the visit from the appellant’s lawyer during which he recanted.2 On Burgess’s version of events, the recantation was the product of an unexpected, unexplained visit from the appellant’s lawyer that spontaneously precipitated previously unfelt pangs of conscience.
(ii) The applicable legal principles
44Section 683(1) allows an appellate court to receive evidence on appeal “where it considers it in the interests of justice.” The broad discretion vested in the appellate court must be exercised having regard not only to the appellant’s interests in fully pursuing his appellate remedies, but also to the broader long-term interests of the administration of justice. While it cannot be gainsaid that those interests are not served by maintaining verdicts that are shown to be unreliable through fresh evidence, those interests are also not served if the appellate process is routinely used to re-write the evidentiary trial record, often years after the trial. Admitting fresh evidence on appeal of necessity undermines legitimate finality expectations. That negative consequence is justified only if the overall integrity of the process is furthered. Admitting evidence on appeal of facts that were litigated at trial is very much the exception to the accepted appellate process: R. v. M.(P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 at p. 411 (Ont. C.A.).
45The factors to be considered in exercising the discretion to receive fresh evidence have been set out in a long line of cases, most notably the often cited R. v. Palmer and Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at p. 775. This court, in Reference Re Truscott (2007), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92, described the exercise of the discretion as involving the answer to three questions:
Is the proffered evidence admissible under the rules of evidence applicable to criminal trials? [the admissibility requirement]
Is the evidence sufficiently cogent that it could reasonably be expected to have affected the verdict? [the cogency requirement]
What is the explanation offered for the failure to produce the evidence at trial and how should that explanation affect its admissibility on appeal? [the due diligence inquiry]
46The first and third questions are easily answered on this appeal. Burgess’s evidence that the appellant was not involved in the robbery is admissible under the rules of evidence both as substantive evidence going to exculpate the appellant and as evidence impeaching the reliability of Burgess’s trial testimony implicating the appellant: R. v. Babinski (1999), 1999 CanLII 3718 (ON CA), 135 C.C.C. (3d) 1 (Ont. C.A.); R. v. D.V. (1995), 1995 CanLII 760 (BC CA), 60 B.C.A.C. 163 (C.A.); R. v. Trudel (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.).
47The explanation for not producing Burgess’s recantation at trial is obvious. It did not exist until long after the trial. The appellant has no due diligence problems in proffering this evidence on appeal.
48The admissibility of Burgess’s recantation comes down to whether it is sufficiently cogent that it could reasonably, when considered in the context of the rest of the evidence, be expected to have affected the verdict. In Reference Re Truscott, at para. 100, this court described the cogency analysis in this way:
The cogency inquiry requires a qualitative assessment of the evidence proffered on appeal. That evaluation must measure the probative potential of the evidence considered in the context of the entirety of the evidence admitted on appeal and heard at trial. If the fresh evidence considered in this context could reasonably be expected to have changed the result at trial, the evidence is sufficiently cogent to justify its admission on appeal… [Emphasis added.]
49There are features of Burgess’s recantation that give it some potential probative value. His recantation stands. He has not, as in many of the other recantation cases, retracted his recantation and returned to the position he took at trial. Burgess’s recantation, like his trial evidence, also speaks directly to the appellant’s involvement in the robbery, the only live issue at trial.
50The fact that evidence proffered on appeal has some potential probative value is not, however, enough to warrant its admission on appeal. The appeal court must assess the potential value of that evidence. The qualitative assessment referred to in Truscott demands a careful evaluation of the proffered evidence and the credibility of the witness. That evaluation is not made with a view to determining the ultimate reliability and credibility of the evidence, but rather in the context of determining whether the proffered evidence is sufficiently cogent to warrant its admission on appeal.
51The qualitative assessment begins by identifying the purpose or purposes for which the evidence is admissible. As indicated above, Burgess’s recantation is admissible for two purposes. First, it is admissible as substantive evidence that the appellant was not involved in the robbery. Burgess’s recantation has value as substantive evidence only if it is credible.
52Burgess’s recantation is also admissible to impeach his trial testimony implicating the appellant. An out-of-court statement made by a witness that is inconsistent with his or her trial testimony on a material matter can be put to that witness to challenge his or her credibility: R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 at pp. 755-56. The out-of-court statement has potential impeachment value if it was made by the witness and is inconsistent with the trial testimony on a material matter. Burgess’s recantation undoubtedly meets both criteria.
53A recantation can have impeachment value even if it is not believed. Indeed, a demonstrably false recantation can have impeachment value. I agree with the comment of Commissioner Kaufmann in his report on the Commission of Proceedings Involving Guy Paul Morin (1998), at pp. 1174-5:
The focus should not be placed only on the believability of the recantation, but also upon the believability of [the witness’s] original testimony, given the recantation. [Emphasis added.]
54As observed by Commissioner Kaufmann, the believability of the recantation is not the “only” question when its impeachment value is in issue. That is not to say, however, that the credibility of the recantation is irrelevant. In determining whether the recantation has sufficient impeachment potential to merit its admission on appeal, the appeal court must determine what a trier of fact could reasonably make of the recantation in its assessment of the credibility of that witness’s trial testimony. The credibility of the recantation is relevant to that assessment. Sometimes, the falsity of the recantation may enhance its potential impeachment value. In other circumstances, a finding that the impeachment is palpably false may neutralize the impeachment potential of the recantation. The impact of the falsity of the recantation on its impeachment value will depend on the totality of the circumstances, including any explanation offered for the recantation and the extent to which the recantation is supported by either the trial evidence or other evidence offered on appeal.
55Babinski offers a comprehensive analysis of the admissibility on appeal of recantation evidence offered to impeach trial testimony. In Babinski, a witness recanted his trial testimony incriminating the appellant. He then resiled from the recantation. By the time the appeal was heard, it was clear that the recantation was false and that the recanting witness had fabricated evidence in an effort to implicate the appellant in the false recantation.
56Relying on Palmer, itself a recantation case in which the court rejected the recantation as patently false, Rosenberg J.A. explained that the admissibility on appeal of the recantation required an assessment of the credibility of that recantation, even where it was offered only to impeach the contrary evidence given at trial. He said, at paras. 51-52:
... The decision of the Supreme Court of Canada in Palmer instructs the appellate court to assess the credibility of that evidence. ... The appellate court cannot avoid the task of dealing with credibility, i.e. the truthfulness, of fresh evidence, especially recantations, simply on the basis that the evidence is tendered for the limited purpose of impeaching the credibility of the witness' trial evidence.
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. To hold otherwise, would be to shirk the responsibility given to the appellate court by s. 683 of the Criminal Code, as interpreted in Palmer, to receive the evidence of witnesses on appeal. To admit a recantation without regard to its credibility simply because it was made, would run afoul of the admonition in Palmer at p. 205 that it would not serve the interests of justice to “permit any witness by simply repudiating or changing his trial evidence to reopen trials at will to the general detriment of the administration of justice”. [Emphasis added.]
57In addressing the recantation of the witness in the case at hand, Rosenberg J.A. stated, at para. 53:
If the only fresh evidence in this case was the bare recantation by L. [the witness] of the “perfect crime” statement, I would have considerable doubt that the evidence could pass the credibility threshold since the reasons provided for the allegedly untrue trial testimony and for the recantation can be shown to be patently false. ... In those circumstances, the bare recantation is so lacking in credibility that even as impeaching evidence it lacks sufficient forensic value to overturn a conviction otherwise free of error. [Emphasis added.]
58Rosenberg J.A. went on to explain that the impeachment value of the witness’s recantation did not, however, depend solely upon its credibility. Placed in the context of the other evidence, specifically the witness’s fabrication of evidence to implicate the appellant in the false recantation, the recantation had impeachment value. He concluded, at para. 70:
... The fresh evidence in this case is not a simple repudiation. Credible independent fresh evidence demonstrated that L. cannot be relied on at least in respect of evidence implicating this appellant. The nature of that evidence shows him to be unreliable in all respects and not simply with respect to his post-trial statements. [Emphasis added.]
59The analysis in Babinski was applied in R. v. McCullough (2000), 2000 CanLII 1983 (ON CA), 142 C.C.C. (3d) 149 (Ont. C.A.). In that case, the fresh evidence consisted of recantations by two Crown witnesses and some new forensic evidence. The court ultimately admitted the recantation of one of the witnesses (D.) and the forensic evidence. The recantation of the other witness (W.) was not admitted. The court addressed the admissibility of her evidence at paras. 32-33, observing firstly, that “her recantation and her reasons for recanting are not credible” and, secondly, that:
That evidence [W.’s recantation] is not credible and does not affect the credibility of her trial testimony or the testimony of any other witnesses at trial. ... In this case, having had the benefit of seeing W. 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. [Emphasis added.]
60The court in McCullough was satisfied that W.’s recantation was not only false, but also when considered in the context of the other evidence and the explanation for the recantation, had little or no impeachment value. Consequently, the court refused to admit it.
61Babinski also stresses the need for a particularly rigorous qualitative assessment where the evidence proffered on appeal is a post-trial recantation of a witness’s trial testimony. The finality of criminal verdicts would be all too ephemeral if those verdicts fell whenever an important trial witness chose to recant his or her testimony. As stated in Babinski at para. 62:
Simple recantations are properly subject to strict scrutiny because they can be easily fabricated.
62The caution sounded in Babinski echoes those made in R. v. Palmer at 205 and R. v. Pizzardi (1994), 1994 CanLII 1317 (ON CA), 17 O.R. (3d) 623 at p. 630 (C.A.), appeal to S.C.C. dismissed 1994 CanLII 42 (SCC), [1994] 3 S.C.R. 1018.
(iii) Application of the principles to this case
63When I subject Burgess’s recantation to the “strict scrutiny” called for in Babinski, I find it to be incredible. I further conclude that its impeachment value is not such that it could reasonably be expected to have affected the verdict at trial. I reach these conclusions for several reasons.
64Perhaps the most striking feature of the recantation is the manner in which it came about. The recantation appeared fully grown out of nowhere, some three and a half years after the relevant events and almost two years after Burgess had testified at trial. According to Burgess, a lawyer representing the appellant, who had no reason to know that Burgess had lied, appeared “out of the blue” to question Burgess about his trial testimony. Upon learning that the appellant was still in jail, Burgess told the lawyer that he had lied at the trial.
65Burgess’s description of the circumstances of his recantation defies belief. Why would counsel for the appellant suddenly appear unannounced at Burgess’s cell and begin to question him about his testimony? Something obviously caused the lawyer to have reason to believe that Burgess may not stand by his trial testimony. Burgess did not see fit to share any knowledge that he had about the events leading up to the lawyer’s visit. There was no other evidence provided on behalf of the appellant that offered any explanation for the circumstances surrounding the recantation.
66Absent any evidence explaining the origins of the recantation, there are at least two explanations that flow from the circumstances. Either the witness, who was in custody and is clearly part of the criminal subculture, and who no longer had any reason to cooperate with the Crown, saw the opportunity to help out the appellant, another member of the criminal subculture, or the witness was under physical compulsion to recant his trial testimony. According to the submissions made by Burgess’s lawyer at the time of Burgess’s sentencing, Burgess had been assaulted while in jail because of his cooperation with the Crown in this case. Burgess also acknowledged in cross-examination that he had concerns about his safety in jail if he implicated others in criminal activity. He related that concern to his refusal to identify the person whom he now claimed had actually asked him to perform the robbery.
67The affidavit itself is entirely incredible for many reasons. Burgess acknowledges that he did not read it before signing it. He admitted that it contained several inaccuracies. Some of the assertions in the affidavit are manifestly false. For example, in para. 11 of the affidavit, Burgess states:
[T]he police kept asking me over and over who planned the robbery.
68As is evident from the recorded interview, the police did not press Burgess to identify the individuals in the robbery. He initially refused to do so and later when asked about the names of others for a second time, Burgess immediately identified the appellant as the person who planned the robbery. Similarly, in para. 11, Burgess alleged that he had never told the police he owed the appellant money. However, as is evident from the recorded interview, that is exactly what he told the police.
69Burgess also acknowledged in his cross-examination that several other parts of his affidavit were false. Two further examples will suffice. In para. 10 of his affidavit, Burgess stated that he did not know why the others in the car had told him to name the appellant as the person involved in the robbery. In cross-examination, he testified that the others in the car had a “drug beef” with the appellant. In para. 7 of his affidavit, Burgess swore that he did not know the other people in the car. In cross-examination, he testified that he knew one of the persons in the car, but refused to identify him.
70Burgess’s attitude towards the truth of the contents of the affidavit, and why, in my view, the affidavit is virtually worthless, is made apparent in the following exchange during his cross-examination:
Q. So, obviously you didn’t care a great deal what was in here [the affidavit].
A. No. Cause I don’t care if he gets off or whatever. I don’t care, it doesn’t bother me. I just said whatever. They just asked me some questions and I said yeah, it wasn’t true like.
Q. But my question is, as far as the affidavit goes …
A. Do I care what’s in it? No.
71Not only is the affidavit rife with demonstrated falsehoods, other aspects of Burgess’s cross-examination also undermine the credibility of the recantation. Burgess declined to answer various questions that were clearly relevant, including the identity of the person whom he now claimed had put him up to the robbery. Burgess also unilaterally, and in vulgar terms that evince an utter disregard for the process, terminated his cross-examination on two occasions. The cross-examination was never completed. Burgess’s conduct during the cross-examination hardly inspires confidence in the truth of anything he said in the affidavit or in his cross-examination.
72Any potential impeachment value in the recantation is further diluted when that recantation is placed in the context of Burgess’s statement and testimony. Burgess’s statement to the police, his preliminary inquiry testimony, the facts accepted by him as accurate on his guilty plea, and his trial testimony are all fundamentally consistent in their description of the appellant’s involvement in the robbery.3 The consistency in the details provided by Burgess on four separate occasions tends to belie the claim made by Burgess in cross-examination that he was simply making things up as he went along.
73Burgess’s statement to the police, his testimony at the preliminary inquiry, and his trial testimony are also consistent with the statement given to the police by Doucette the morning after the robbery. Both implicated the appellant as the person who recruited them to commit the robbery and provided details of the events leading up to the robbery. There is no suggestion that Doucette and Burgess had any opportunity to collude about those details before each provided his statement to the police.
74The strong similarities between Burgess’s statement and Doucette’s statement cannot be explained by the assumption that Burgess’s recantation is true and that Doucette, like Burgess, decided to implicate the appellant because of what others had said in the automobile. According to Burgess’s recantation, when he was told to implicate the appellant, there were no details provided. He was simply told to indicate that the appellant was the other person involved in the robbery. Burgess’s explanation of how the recantation came about cannot explain the many similarities between Doucette’s description of the appellant’s role in the robbery as provided in his statement to the police and Burgess’s description of the appellant’s involvement in the robbery as provided in his statement and repeated in his subsequent testimony at the preliminary inquiry and the appellant’s trial.
75My examination of Burgess’s recantation brings to mind the admonition of McIntyre J. in Palmer, at p. 205:
The overriding consideration must be in the words of the enactment “the interests of justice” and it would not serve the interests of justice to permit any witness by simply repudiating or changing his trial evidence to reopen trials at will to the general detriment of the administration of justice.
76I find the recantation incredible and unworthy of belief. I am also satisfied that it could not reasonably be expected to affect the assessment of the reliability of Burgess’s trial testimony implicating the appellant in the robbery.
IV
CONCLUSION
77I would dismiss the appeal.
“Doherty J.A.”
“I agree K. Feldman J.A.”
“I agree Gloria Epstein J.A.”
RELEASED: “DD” “JUN 10 2011”
Footnotes
- Doucette’s statement was only partially recorded as the equipment malfunctioned. The Crown relied only on the recorded portion of the statement.
- At another point in his cross-examination, Burgess contradicted his earlier statement and stated that he had told some friends about falsely implicating the appellant. He declined to identify those friends in his cross-examination.
- In his statement, Burgess initially indicated that the person who called him and asked him to participate in the robbery was not in the automobile that drove him to the scene of the robbery. However, later in his statement, after Burgess identified the appellant as the person who called him, the police did not ask Burgess whether the appellant was present in the automobile when Burgess was picked up and driven to the scene of the robbery.
