Court of Appeal for Ontario
Before: Doherty, Laskin and Feldman JJ.A.
Her Majesty the Queen Respondent
and
Maher Ibrahim Appellant
Counsel: Diane Condo, for the appellant Gavin MacDonald, for the respondent
Heard: March 20, 2014
ENDORSEMENT
1This motion, brought pursuant to s. 683(1)(b), seeks an order compelling the complainant to attend for cross-examination in support of the appellant’s fresh evidence application. The proposed fresh evidence consists of the affidavit of the appellant’s daughter, cross-examination of the daughter on that affidavit and certain phone records referable to the complainant. In her affidavit, the daughter summarized conversations she allegedly had with the complainant in 2012, long after the trial. The daughter’s cross-examination related to those conversations. The daughter’s affidavit and her cross-examination allege that the complainant lied at trial.
2Crown counsel takes the position that the purported cross-examination does not relate to facts material to the conviction and further advised the court that that he had chosen not to ask the complainant for a responding affidavit. Consequently, the appellant brings this motion for an order permitting cross-examination of the complainant.
3Counsel for the appellant submits that the affidavit and cross-examination, taken together, provide an evidentiary basis for the allegation that the complainant lied at trial on matters that were germane to her credibility. Counsel further argues that it is in the interests of justice that she be allowed to pursue that allegation through cross-examination of the complainant.
4As pointed out in R. v. Sihota, 2009 ONCA 770, the interests of justice require a consideration of the obvious interests of the appellant, but also the interests of the witness who is sought to be cross-examined. The interests of the witness are particularly significant when the witness is a complainant who has already testified at some length at a trial that occurred many years ago.
5We are satisfied that on a reading of the affidavit and the cross-examination, the proposed fresh evidence goes no further than statements by the complainant to the daughter that the complainant had learned that her husband had lied to her about the alleged extramarital affair and that she no longer believed, as she had at trial, that there had been no affair. Further, the complainant advised the daughter that she would not “lie” about the affair in the future. The fresh evidence suggests not that the complainant lied in her evidence at trial, but rather that she had been deceived by her husband about the affair and, having learned the truth, would no longer say that there had not been an affair.
6The statements allegedly made by the complainant to the daughter as clarified in the cross-examination do not provide a basis upon which the complainant’s credibility could be successfully challenged on a fresh evidence application on appeal. As the fresh evidence stands, there is no reasonable possibility that it could undermine the complainant’s credibility on the portions of her trial testimony that are material to the harassment allegations. Cross-examination of the complainant is not in the interests of justice.
7If the appellant pursues a fresh evidence application, it will be for the panel hearing the appeal to decide the ultimate admissibility of the evidence. That panel is, of course, not bound by the assessment made on this motion. The appellant is also entitled to rely on the absence of any response by the complainant to the allegations in support of its motion. The significance of the absence of that response is, of course, also for the panel.
8Insofar as the proposed cross-examination would relate to the information in the phone records, we see nothing in those records that would call the complainant’s credibility into question in a manner that could reasonably be expected to have affected the verdict. Furthermore, this line of inquiry could have been pursued at trial.
9In the result, we are satisfied that the motion should be dismissed. This appeal should be listed immediately. Counsel have advised that they have agreed on April 28, 2014 for the hearing of the appeal.
“Doherty J.A.”
“John Laskin J.A.”
“K. Feldman J.A.”