COURT OF APPEAL FOR ONTARIO
Laskin, Pepall and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Gerald Raymond Kelly
Appellant
Breana Vandebeek, for the appellant
Jocelyn Speyer, for the respondent
Heard: May 5, 2014
On appeal from the conviction entered on August 31, 2011 by Justice Patrick A. Sheppard of the Ontario Court of Justice.
1The appellant was convicted of a home invasion robbery. The sole issue at trial was identity. The Crown’s case rested entirely on a K.G.B. statement given by the appellant’s accomplice, who then recanted his statement at trial. The trial judge found that the statement was reliable and admitted it for the truth of its contents. The appellant did not testify.
2The appellant advances three grounds of appeal:
(1) The trial judge erred in drawing an adverse inference from the late disclosure of the recantation;
(2) The trial judge erred by relying on the K.G.B. witness’s guilty plea for the truth of its contents; and
(3) The trial judge erred in admitting the K.G.B. statement for the truth of its contents;
3The appellant also brings a motion to introduce fresh evidence concerning a discussion in the trial judge’s chambers before the trial started.
4We did not call on the Crown on either the third ground of appeal or on the fresh evidence motion.
5In our view, the trial judge did not err in relying on the K.G.B. statement for the truth of its contents. The “circumstances of the taking of the statement” established its threshold reliability. Although not under oath, the statement was videotaped in its entirety. The witness was cautioned and the statement was voluntary. Most important, the witness testified at trial and thus defence counsel had a full opportunity to cross-examine him, though counsel chose not to do so.
6We dismiss the appellant’s motion to introduce fresh evidence. The discussion in the trial judge’s chambers did not prejudice the defence and was irrelevant to the fairness of the appellant’s trial.
7We turn now to the two grounds of appeal on which we asked the Crown to respond.
(1) Adverse Inference
8The witness sought to recant his K.G.B. statement. He did so in a brief letter, which was written in March 2011 and delivered by defence counsel to the Crown on the first day of trial in July 2011. The witness then testified consistently with his recantation.
9In convicting the appellant, the trial judge drew an adverse inference from the late disclosure of the recantation. The trial judge said:
Once Mr. Scully receives the letter and we do not know the precise date that that happened except that it is sometime after it was given in the second week of March, 2011, the letter is retained by counsel and produced for the Crown on the trial date of July 12th, 2011 and not before.
Whether or not an alibi case is truly analogous is not something the Court need decide today but, I do draw an adverse inference from the fact that the recanting of Mr. McIntosh as to the second person present with him at the time of the home invasion was never conveyed to Crown counsel who could then cause a proper investigation of it to be made and, any investigation that was ultimately made by the Kingston Police had to be made by virtue of the fact this trial continued in August from its initial trial date of July the 12th.
10The appellant submits that it was an error of law for the trial judge to draw this adverse inference because it undermined the presumption of innocence and the appellant’s right to remain silent. We agree with this submission.
11Ordinarily accuseds have no obligation to disclose their defence. This principle has exceptions that would justify the drawing of an adverse inference for late disclosure. The requirement for the timely disclosure of an alibi defence is one such exception. However, no exception applies to this case, and thus the trial judge erred in law in drawing an adverse inference.
12The Crown’s answer to the appellant’s submission is that the adverse inference for late disclosure of the recantation was drawn not against the appellant but against the witness. Thus, according to the Crown, the adverse inference did not undermine the appellant’s right to remain silent, but simply undermined the witness’s credibility.
13We disagree. It is evident from the passage of his reasons we have quoted above that the trial judge drew an adverse inference against the appellant. He was wrong to do so. Moreover, he then used the late disclosure of the recantation to support his finding of guilt. The trial judge said:
The passage of this time plus the failure to disclose the recanted identity plus the Court[‘s] own observations of the demeanour of Mr. McIntosh on the tape have all satisfied me to the level of beyond a reasonable doubt that Mr. Kelly was the second person in possession of the two knives at the home invasion on December the 6th, 2009, that was described in detail by Mr. McIntosh in his video statement of April the 8th, 2010.
In reaching this conclusion, the trial judge’s reliance on the late disclosure was wrong.
14As the trial judge’s error cannot be disentangled from his other reasons for convicting the appellant, the error deprived the appellant of a fair trial. On this ground alone, the conviction cannot stand.
(2) The witness’s guilty plea
15The appellant also submits that the trial judge erred by using the witness’s guilty plea and the guilty plea proceedings for the truth of their contents. We do not accept this submission. The trial judge did not use the guilty plea proceedings for a hearsay purpose, which would have been improper. He used these proceedings solely to assess the reliability of the witness’s recantation. This was a proper use of the guilty plea proceedings. We therefore do not give effect to this ground of appeal.
16However, because the trial judge erred in drawing an adverse inference from the late disclosure of the recantation, the appeal is allowed, the conviction is set aside and a new trial is ordered.
Released: May 13, 2014 (“J.L.”)
“John Laskin J.A.”
“S.E. Pepall J.A.”
“G. Pardu J.A.”
