COURT OF APPEAL FOR ONTARIO
Laskin, Cronk and Miller JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jason McGown
Appellant
Brian Eberdt and Eva Taché-Green, for the appellant
Craig Harper, for the respondent
Heard: March 10, 2016
On appeal from the convictions entered by Justice B. MacDougall of the Superior Court of Justice, sitting without a jury, on February 17, 2012.
I. Introduction
1Late in the evening on December 29, or early in the morning on December 30, 2009, two armed and masked men broke into a home in the village of Bethany, Ontario. The first man was carrying a sawed-off shotgun, while the second man was brandishing a handgun. Both men were wearing balaclavas. The two occupants of the house were bound to kitchen chairs with duct tape while the intruders searched the house and stole drugs and cash.
2The victims did not initially report the incident to police because of the presence of drugs in their home. However, when their house was broken into again about three months later, this time by four men, they contacted the police and reported both home invasions. Three individuals were ultimately charged with a series of offences relating to the first home invasion and robbery – the appellant Jason McGown, Gregory Keenan and Stephen Kelman.
3Following a trial by judge alone, the appellant was convicted of four offences relating to the robbery and home invasion: i) robbery with a prohibited firearm; ii) break and enter and committing robbery with a firearm; iii) disguise with intent; and iv) possession of a prohibited weapon without a licence. His convictions rested on Keenan’s trial testimony implicating the appellant in the robbery and home invasion.
4The appellant appeals from his convictions. The central issue on appeal is whether the trial judge erred in his assessment of the credibility and reliability of Keenan’s evidence. For the reasons that follow, I would dismiss the appeal.
II. Background in Brief
(1) Co-Accused
5Keenan and Kelman lived together in Kelman’s house in Lindsay, Ontario at the time of the robbery. Both men were drug users and dealers in their community.
6In February 2010, before being charged for any offences relating to the home invasion and robbery, Keenan was arrested and charged with several unrelated drug offences. While in custody, the police told him that they were having trouble locating a handgun used during the home invasion. They said that Kelman was in custody and that, if either of them provided information about the gun’s whereabouts, bail would not be opposed. In the cells, Keenan told Kelman the location of the gun, and Kelman then led the police to the gun. Keenan was released on bail with the Crown’s consent.
7Two months later, in April 2010, Keenan went to the police station to retrieve some of the property seized during his arrest on the drug charges. At that time, the police informed him that he was going to face further charges, including armed robbery, in relation to the December 2009 robbery and home invasion. Keenan provided a statement to the police, saying that he had only been the driver of the getaway car and that the appellant and Kelman broke into the victims’ residence and carried out the robbery. Keenan claimed that he did not enter the house or otherwise participate in the robbery and home invasion.
8As a result of Keenan’s statement, he, together with Kelman and the appellant, were charged with robbery and related offences regarding the break-in. Kelman pleaded guilty and was sentenced shortly thereafter.
9On April 12, 2011, one week before the appellant’s preliminary inquiry was to commence, Keenan pleaded guilty as a party to a single count of robbery. His plea was based on his claim in his police statement that he was a party to the robbery, not a principal – that is, that he was involved only as the driver of the getaway car and did not enter the victims’ residence.
(2) Appellant’s Preliminary Inquiry
10Keenan testified for the Crown at the appellant’s preliminary inquiry on April 19, 2011. In doing so, he invoked the protections against self-crimination set out in s. 5(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the “CEA”) and s. 13 of the Charter of Rights and Freedoms1.
11At the preliminary inquiry, Keenan acknowledged a much greater degree of participation in the home invasion and robbery than he had previously disclosed. In contrast to his police statement, he testified that he, rather than Kelman, had entered the victims’ residence and carried out the home invasion and robbery with the appellant. Kelman, he said, had remained in the getaway car.
(3) Appellant’s Trial
(i) Case for the Crown
12At the appellant’s trial, it was common ground that Keenan and Kelman were involved in the robbery. The sole issue was the identity of the third robber.
13The victims and Keenan testified for the Crown. Neither of the victims saw the robbers’ faces and, hence, could not provide a physical description of the two men, other than the fact that one was taller than the other.
14By the time of the appellant’s trial, Keenan had not yet been sentenced on his robbery conviction and his February 2010 drug charges remained outstanding. His sentencing hearing had been adjourned numerous times. At trial, he testified that he did not know why his sentencing had been delayed and that he was unaware of any agreement between his lawyer and the Crown on his expected sentence. As I will elaborate, the Crown indicated that its position on Keenan’s future sentencing was fixed prior to the appellant’s preliminary inquiry, but that it understood that the defence would argue for a lesser sentence.
15At trial, Keenan again invoked the protections against self-crimination under s. 5(2) of the CEA and s. 13 of the Charter. The Crown confirmed on the record that it would not attempt to use Keenan’s evidence against him and that it had accepted his earlier guilty plea on the robbery charge based on his assertion in his police statement that he was only the getaway driver.
16Keenan’s trial testimony was consistent with his evidence at the appellant’s preliminary inquiry. He said that Kelman and the appellant had devised the plan to conduct the home invasion in order to steal drugs and money. However, things did not go according to plan. According to Keenan, when the three men arrived in Bethany, Kelman decided he could not go through with the break and enter. Keenan, therefore, switched places with Kelman and entered the residence with the appellant, carrying his own loaded handgun and wearing a balaclava. Kelman stayed in the car. Keenan further described how he and the appellant carried out the break-in and what each did during the ensuing robbery.
(ii) Case for the Defence
17The appellant did not testify. Kelman was the sole defence witness.
18Kelman testified that he and the appellant were friends. He claimed, for the first time, that the appellant had no involvement in the home invasion and robbery. He said that Keenan was his drug supplier; that the robbery was Keenan’s idea; and that Keenan had proposed that Kelman drive Keenan and a friend to the targeted residence, wait there and then drive them back to Lindsay, in exchange for a credit on an outstanding drug debt. According to Kelman, on the day of the robbery, Keenan drove with him to a parking area on Highway 35 where they picked up Keenan’s friend “from the City”. Kelman then drove the trio to Bethany and waited in the car while Keenan and his friend broke into the victims’ house and carried out the robbery.
19Kelman provided only a brief physical description of Keenan’s alleged friend. Kelman claimed that he did not know the friend or anything about him, as there was no conversation among the three men in the car enroute to Bethany. He said that, after the robbery, he drove Keenan and his friend back to Highway 35, dropped the friend off, then returned with Keenan to Kelman’s home in Lindsay, where they divided the drugs stolen in the robbery.
20Kelman also admitted that he owned the sawed-off shotgun used in the robbery and that the shotgun was in Keenan’s car at the time of the home invasion. He testified that, two weeks prior to the robbery, he had given the gun to Keenan to hide with Keenan’s “stash”, because he did not want the shotgun in his house where his young son lived.
III. Trial Judge’s Decision
21The trial judge rejected Kelman’s evidence, holding that he was not credible and that his testimony did not give rise to a reasonable doubt regarding the appellant’s participation in the home invasion and robbery. The trial judge found that numerous aspects of Kelman’s testimony did not “make a lot of sense”, including: i) his claim that he had participated in a robbery with a complete stranger; ii) his provision of only “very scant details” about Keenan’s alleged “friend”; iii) his explanation about the prior whereabouts of his shotgun; and iv) most significantly, his failure to disclose, at any point prior to his trial testimony, that the appellant, his friend, had not been involved in the home invasion and robbery, despite knowing that the appellant was facing charges in relation to the incident.
22The trial judge was also alert to the weaknesses in Keenan’s evidence. Given Keenan’s long history as a major drug dealer in the Lindsay area, his criminal behaviour as a drug user, his prior illegal possession of a loaded handgun that he loaned to others for criminal conduct, and his past untruthfulness to the police, the trial judge regarded Keenan as an unsavoury witness. He therefore cautioned himself to evaluate Keenan’s credibility and reliability in accordance with the principles set out by the Supreme Court of Canada in Vetrovec v. The Queen, 1982 20 (SCC), [1982] 1 S.C.R. 811 and R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104. Those principles require that the testimony of witnesses who, “because of their amoral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial, cannot be trusted to tell the truth”, be approached with skepticism and particular scrutiny: Khela, at paras. 3-5.
23The trial judge indicated that he took these principles into account in considering whether Keenan was telling the truth that the appellant was his accomplice in the robbery and home invasion. He noted, in this regard, Keenan’s outstanding drug charges; the fact that he had not yet been sentenced for his role in the home invasion and robbery; his invocation of the protections against self-crimination under the CEA and the Charter; the change in his trial testimony from his statement to the police – namely, that he was one of the intruders and was carrying a loaded handgun during the robbery; and his criminal record.
24The trial judge went on to conclude that several areas of Keenan’s testimony were not credible. He held, in effect, that Keenan had downplayed his involvement in the home invasion and robbery and that he had actually played a central role in its planning and execution. Further, as Keenan had pleaded guilty only to being a party to the robbery, his assertion at trial that he intended to take full responsibility for his criminal conduct should be “taken with a grain of salt”.
25However, the trial judge also identified several factors that bolstered Keenan’s credibility. He found that: i) there was no evidence that the police had held out any promises to Keenan if he admitted his own involvement or identified his accomplices in the home invasion and robbery; ii) there was also no evidence of any motive by Keenan to fabricate the appellant’s involvement to protect some other person; iii) indeed, as compared to the victims’ evidence, Keenan had minimized the appellant’s conduct during the robbery; iv) Kelman’s testimony confirmed some aspects of Keenan’s evidence; v) no inconsistencies had emerged between Keenan’s trial evidence and his prior testimony at the appellant’s preliminary inquiry; and vi) Keenan was genuinely intent on achieving rehabilitation and “overcoming his substance abuse issues and criminal lifestyle”.
26Weighing all these factors, the trial judge accepted the core of Keenan’s testimony. He held:
Taking into account all the legitimate concerns regarding his past and that he is an accomplice, as well as the way in which his charges have proceeded, I accept his testimony that the [appellant] was the other accomplice in the home invasion and robbery.
27Accordingly, the trial judge convicted the appellant of the four offences charged.
IV. Proposed Fresh Evidence
28The appellant seeks leave to file, as fresh evidence on appeal: i) the transcripts of Keenan’s remand appearances after entering his guilty plea to the robbery charge; ii) the pre-sentence report filed at Keenan’s sentencing hearing; and iii) the transcripts of Keenan’s pleas on the drug charges and the sentencing hearing on the robbery and drug charges.
29The appellant argues that this evidence establishes that Keenan gave manipulative accounts of his involvement in the robbery, depending on the nature of the proceeding, in order to attract the greatest personal gain and with no regard for the truth. He submits that, contrary to the trial judge’s findings, the proposed fresh evidence demonstrates that Keenan was not willing to take, and did not take, full responsibility for his conduct and that he was essentially disingenuous in his professed commitment to rehabilitation.
30I have reviewed the proposed fresh evidence sought to be filed by the appellant. It reveals that, on July 9, 2012, about five months after the appellant’s trial, Keenan entered guilty pleas to two counts of possession for the purpose of trafficking (marijuana and cocaine) before Rosenberg J. of the Ontario Court of Justice. A global sentencing hearing then proceeded, on both the robbery and drug convictions.
31At the sentencing hearing, the Crown filed synopses of the victims’ video statements and an agreed statement of facts (“ASF”) that encompassed all charges. The ASF described Keenan as the driver of the getaway car during the robbery and stated that he had brought his handgun with him for the appellant. It contained no mention of his evidence at the appellant’s preliminary inquiry and trial that he had been one of the two masked and armed intruders.
32Further, Keenan’s counsel at the sentencing hearing stressed, as mitigating factors on sentencing, Keenan’s co-operation with the authorities in respect of the robbery, the importance of his testimony to the Crown’s case against the appellant, and his genuine regret and remorse. Defence counsel urged the imposition of a suspended sentence for the robbery conviction and a conditional sentence for the drug convictions.
33Crown counsel (not counsel at the appellant’s trial) relied on the ASF to note that Keenan did not enter the victims’ residence. However, she submitted that Keenan still played a “very key role” in the robbery. She also acknowledged that his statement to the police and his testimony at the appellant’s preliminary inquiry and trial were mitigating factors. She sought sentences of 22 months in jail for the robbery and a total of 20 months’ imprisonment for the drug offences, consecutive.
34The sentencing judge sentenced Keenan to 18 months’ imprisonment for his involvement in the robbery and 10 months in jail for his drug offences, consecutive, for a total of 28 months. In so doing, she relied on the description of Keenan’s limited role in the robbery, as set out in the ASF. She also identified, in mitigation of sentence, Keenan’s co-operation with the authorities and the evidence before her of his remorse, the turnaround in his life and his professed commitment to making a positive impact in his community.
V. Issues
35There are three main issues on appeal:
(1) Did the trial judge err in his assessment of Keenan’s credibility and reliability:
i) by failing to exercise the necessary caution in accepting Keenan’s evidence, in light of Keenan’s status as a co-accused awaiting sentencing and his outstanding criminal charges;
ii) given the proposed fresh evidence, by finding that Keenan was willing to take responsibility for his actions and tell the truth?
(2) Did the trial judge err by holding that Kelman’s testimony confirmed parts of Keenan’s evidence?
(3) Did the trial judge err by applying a more stringent level of scrutiny to Kelman’s evidence than that brought to bear on Keenan’s testimony?
VI. Analysis
(1) Assessment of Keenan’s Credibility and Reliability
36The appellant argues that Keenan’s evidence implicating the appellant in the robbery and home invasion should have been given no weight because the risk of fabrication by Keenan was too great. Because Keenan was an accomplice who had not been sentenced for his role in the robbery and also had outstanding drug charges at the time of the appellant’s trial, the appellant argues that the trial judge was obliged to approach his testimony with special care. The trial judge failed to do so, the appellant says, because he failed to consider what Keenan’s expectations were in implicating the appellant. Specifically, the trial judge did not adequately address Keenan’s unsavoury character and failed to appreciate that Keenan had a strong motive to fabricate, given his alleged pattern of co-operating with the authorities to gain favour for himself.
37The appellant further submits that this error is manifest when the trial judge’s findings are considered in light of the proposed fresh evidence. As set out in his factum, the appellant maintains that this evidence establishes that the information provided by Keenan to the authorities “was, at every instance, tailored to ensure that it afforded him the greatest personal gain, with no regard for the truth” and that, contrary to the trial judge’s findings, Keenan did not intend to take responsibility for his actions.
38I turn first to the trial judge’s approach to Keenan’s evidence.
(i) Trial Judge’s Approach to Keenan’s Evidence
39It is well-established that a court must exercise caution in accepting the evidence of an accomplice or co-accused who is awaiting trial or sentencing. Caution is mandated because witnesses of this type may have a motive to give false evidence in the hope of gaining an advantage in their own cases: see for example, R. v. Williams (1974), 1974 1576 (CMAC), 21 C.C.C. (2d) 1 (Ct. Martial App. Ct.), at pp. 10-12, leave to appeal refused, [1974] S.C.R. xii; United States of America v. Shulman, 2001 SCC 21, [2001] 1 S.C.R. 616, at paras. 55-59. As S. Casey Hill, David M. Tanovich and Louis P. Strezos explain in their text, McWilliams’ Canadian Criminal Evidence, loose-leaf (2016-Rel. 1), 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2016), at pp. 34-76 to 34-77: “[t]he danger is that the witness may be tempted to falsely testify in a fashion overly favourable to the prosecution expecting that such cooperation will yield dividends in his or her pending sentencing hearing.”
40The need for a cautious approach, however, does not render the evidence of an accomplice who is awaiting sentencing or trial inadmissible. Rather, the evidence is admissible and it is up to the trier of fact, employing requisite care, to determine the weight to be assigned to it.
41In Shulman, a well-known extradition case, the Supreme Court addressed this issue directly. In that case, the extradition judge at Mr. Shulman’s committal hearing relied on affidavits from two alleged co-conspirators who had pleaded guilty and were awaiting sentence. On appeal, Mr. Shulman argued that use of the affidavits violated his s. 7 Charter rights because it constituted “an invitation to perjury by the alleged co-conspirators, who could tailor their evidence in favour of the prosecution to seek a lesser sentence”: Shulman, at para. 56.
42The Supreme Court disagreed. It held, at para. 59, that “the fact that the [co-conspirators] were awaiting sentence at the time of their evidence goes to weight, not admissibility.” In so holding, the court, at para. 58, endorsed the comments of McIntyre J. in Williams, at p. 11, as cited with approval by Ritchie J. for the majority in United States of America v. Shephard (1976), 1976 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1086:
While the practice of calling an accomplice against whom unresolved legal proceedings are outstanding is to be frowned upon and even condemned involving as it does grave dangers in that a witness may be provided with a strong motive to colour his evidence or give false evidence I cannot say that such evidence is inadmissible nor that its reception will void a conviction. The effect of the Canadian decisions is to indicate that while such a step may affect the weight of evidence offered in this fashion it does not go to the question of admissibility. [Emphasis added.]
43The same principles have been held to apply where a co-accused who is awaiting sentencing gives evidence under the protection of the CEA against self-crimination. In R. v. Caulfield (1972), 1972 ALTASCAD 90, 10 C.C.C. (2d) 539, at p. 540, for example, the Alberta Court of Appeal stated:
The fact that [the co-accused] gave evidence under the protection of the Canada Evidence Act, R.S.C. 1970, c. E-10, before being sentenced, but after pleading guilty, does not render the conviction bad. We agree that it is a practice that should not be followed but should be discouraged, but provided the tribunal, if a jury, is warned of the dangers of this or a judge sitting alone realizes them, as he did in this case, where he warned himself specifically of the dangers of accepting this evidence, it is not fatal to the conviction. [Citations omitted; Emphasis added.]
44In this case, the appellant accepts that Keenan’s evidence was admissible. However, as I have said, the appellant submits that the trial judge erred by assigning any weight to Keenan’s testimony given Keenan’s alleged history of opportunism, directed at obtaining a benefit from the authorities in exchange for his co-operation. During oral argument, the appellant’s counsel put it this way: “[w]hile Keenan’s evidence might have been admissible … the risks of fabrication here were too great to afford any weight to his evidence.” In other words, the appellant contends that the trial judge failed to exercise the necessary caution in accepting Keenan’s evidence.
45I disagree. In my view, the trial judge’s reasons belie this contention.
46First, as I have said, the trial judge recognized that Keenan was an unsavoury witness and cautioned himself in accord with the principles enunciated in Vetrovecand Khela regarding Keenan’s testimony, although such a caution was not mandatory in this judge alone trial. He summarized the Supreme Court’s central instructions in Khela, in this fashion:
[Caution is required regarding] [a]ll witnesses who, because of their amoral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial cannot be trusted to tell the truth even when they have expressly undertaken by oath or affirmation to do so.
Also the trier of fact is to be alert to the concern that unsavoury witnesses are prone to favour personal advantage over public duty.
In determining the veracity of the suspect evidence, the trier of fact should look for evidence from another source tending to show that the untrustworthy witness is telling the truth as to the guilt of the accused.
Evidence to be considered confirmatory does not have to implicate the accused.
47The trial judge also referenced this court’s decision in R. v. Drabinsky, 2011 ONCA 582, 107 O.R. (3d) 595, leave to appeal refused, [2011] S.C.C.A. No. 491, regarding the assessment of the credibility of Crown witnesses who have a self-interest in assisting the prosecution to protect themselves from the consequences of their own criminal activity. Having found Keenan to be an unsavoury witness and having considered Vetrovec, Khela and Drabinsky, the trial judge then stated:
In considering whether Keenan is telling the truth that his accomplice in the robbery was the [appellant], I have taken into account the “Vetrovec/Khela” instructions referred to.
48On my reading of the trial judge’s reasons, he did precisely what he said he had done. In undertaking his Vetrovec/Khela analysis of Keenan’s evidence, he detailed many of the problems associated with Keenan’s testimony, alluding to his criminal record (which included convictions or findings of guilt for mischief, possession of narcotics and theft), his plea of guilty as a party to the charge of simple robbery in connection with the incident before the court, his outstanding drug charges, and the fact that he was yet to be sentenced.
49Importantly, the trial judge was also aware that Keenan’s guilty plea had been based, and accepted by the Crown at the plea hearing, on the facts asserted by him in his police statement. Those facts limited his participation in the robbery to being the driver of the getaway car, without direct involvement in the home invasion or the ensuing robbery. Similarly, the trial judge knew that Keenan had pleaded guilty only to being a party to the offence and not a principal.
50This information emerged at trial in various ways. First, the transcript of Keenan’s plea proceeding on April 12, 2011 was filed by the defence at the appellant’s trial. It contained the following description by Keenan’s counsel of the facts asserted to support the plea and a finding of guilt:
The brief facts are that on that day, Mr. Keenan drove a motor vehicle with a number of other individuals to the residence of [the victims] on the understanding that there was likely to be a theft taking place. It did take place and, during the course of that, violence was used. He then drove the individuals away from there. He had knowledge that it had taken place. He had knowledge that it had taken place, and he – certainly he is entering a plea as a party to the offence. Obviously, the matter will be fleshed out in greater detail sometime subsequently, as well as dealing with the large number of federal offences which have been at the moment delegated to the province. [Emphasis added.]
51That the trial judge understood the foundation for Keenan’s guilty plea was confirmed during closing submissions. In her closing at the appellant’s trial, at the request and with the consent of defence counsel, Crown counsel detailed the Crown’s position on sentencing concerning Keenan’s drug charges and his robbery conviction. The following exchange with the trial judge took place:
[The Crown]: [I]t’s a plea to a possession for the purpose of trafficking being cocaine, possession for the purpose of trafficking being marijuana, and the robbery in relation to this incident: robbery simpliciter. The Crown’s position on the robbery was 17 months in jail, on the possession for the purpose of cocaine, 13 months consecutive, and on the possession for the purpose marijuana, 7 months consecutive.2 I should point out that … the federal Crown and the provincial Crown crafted our position together for a total of 37 months. It is not a joint submission on sentence. In other words, counsel for Mr. Keenan, as I understand it, will be arguing for a lesser sentence. I can also indicate that this position was formulated prior to Mr. Keenan testifying at the preliminary hearing, such that the only admissible evidence that the Crown had against Mr. Keenan respecting his involvement in this matter came from the statement that he gave to the police. That, of course, remains the case given that he did seek the protection of the [CEA] and the Charter, that is, that that remains the only admissible evidence against Mr. Keenan.
The Court: [W]ould it be fair to say, then, that since you were basing your acceptance of the plea on his statement to the police, in that statement, he said he was the driver and did not go into the residence?
[The Crown]: That’s correct, yes. [Emphasis added.]
52Thus, to summarize, when assessing Keenan’s credibility and reliability, the trial judge was well aware: i) that Keenan had yet to be sentenced on his robbery conviction; ii) that his sentencing hearing had been repeatedly adjourned; iii) that his drug charges remained outstanding; iv) that the facts underpinning his guilty plea on the robbery charge contemplated his involvement only as the getaway driver and not as a principal; v) that Keenan had invoked the protections against self-crimination of the CEA and the Charter when testifying both at the appellant’s preliminary inquiry and trial; vi) that the Crown had essentially undertaken to Keenan and confirmed to the trial court that it would not seek to rely on Keenan’s trial testimony at his sentencing hearing; and vii) of the Crown’s position, fixed prior to the appellant’s preliminary inquiry, as to the appropriate sentences for Keenan’s offences.
53The trial judge explicitly factored these considerations into his evaluation of Keenan’s testimony. For example, he stated:
In addition to Keenan’s “unsavoury background”, I need to weigh the effect of the rather unusual way in which the charges that Keenan was facing have been dealt with. They include both the charges for the possession of drugs for the purpose of trafficking … as well as the charges arising out of his involvement in this robbery.
For some unexplained reason, no date has yet been set for the [drug] charges – the Preliminary Hearing and further, although he pleaded guilty on April 12, 2011 to being a party to the break and enter and robbery, he still has not been sentenced. The Crown agreed not to oppose his plea based on Keenan’s statement to the police...that he was only the driver of the car, but he was aware that a break and enter, and robbery would be committed by the two other people.
Under the protection of the [CEA] and the Charter, we now know that he was not just “the driver” but he was one of the intruders and that he was carrying and brandishing a loaded handgun in the home invasion and robbery. [Emphasis added.]
54Against the backdrop of these explicit considerations, the trial judge ultimately accepted Keenan’s evidence of the appellant’s involvement in the robbery and home invasion. As the Crown emphasizes, the trial judge did not accept this evidence unquestioningly. To the contrary, he listed those parts of Keenan’s testimony that he viewed as not being credible, recognized that Keenan’s declaration that he intended to accept responsibility for his criminal conduct must be taken with a “grain of salt” in light of his willingness to plead guilty only as a party to the robbery, and identified those parts of Keenan’s evidence that he did accept, for reasons he explained.
55I see no error in the trial judge’s approach to or evaluation of Keenan’s evidence. He took all relevant factors into account and considered the specific and inherent frailties in Keenan’s testimony, in the circumstances. He rejected parts of his testimony as unworthy of belief and accepted others. These tasks were squarely within the trial judge’s purview. At the end of the day, no material misapprehension of evidence having been alleged, the trial judge’s appreciation of the evidence, his assignment of weight to Keenan’s testimony and his credibility findings all attract deference from this court.
(ii) Fresh Evidence
56I turn now to the admissibility and effect of the proposed fresh evidence.
57Under s. 683(1) of the Criminal Code, R.S.C. 1985, c. C-46, this court may receive fresh evidence on appeal “where it considers it in the interests of justice” to do so.
58There is no dispute as to the criteria for receipt of fresh evidence under s. 683(1). They require that the proposed fresh evidence: i) could not have been adduced at trial, through the exercise of due diligence; ii) is relevant, in that it bears upon a decisive or potentially decisive issue in the trial; iii) is credible, in the sense that it is reasonably capable of belief; and iv) is such that, if believed, and when taken with the other evidence at trial, it could reasonably be expected to have affected the result. To this must be added that the due diligence criterion will not be applied as strictly in criminal cases as in civil cases: Palmer v. The Queen (1979), 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 775; Shulman, at para. 43.
59In Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92, this court clarified and restated the Palmer criteria, in this fashion:
[The Palmer] criteria are well known. They encompass three components:
Is the evidence admissible under the operative rules of evidence?
Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict?
What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence?
60The appellant argues that the proposed fresh evidence satisfies all the Palmer criteria. In particular, he submits that it could have resulted in different verdicts.
61The appellant says that the proposed fresh evidence establishes that, contrary to the trial judge’s finding, Keenan in fact was not willing to take responsibility for his role in the robbery. It shows that, at his sentencing hearing, Keenan was permitted to revert to his claim of minimal involvement in the robbery notwithstanding his clear admission at the appellant’s trial that he was a principal participant.
62The thrust of the appellant’s argument is that the trial judge would have rejected Keenan’s evidence, and therefore acquitted the appellant, if he had known that: i) Keenan would later revert back to his “getaway driver” story; and ii) Keenan would seek and receive a significant mitigation benefit on sentencing as a result of his co-operation with the authorities. According to the appellant, Keenan’s actions after the appellant’s trial vitiate the trial judge’s findings concerning Keenan’s credibility. These findings, the appellant submits, were based primarily on the trial judge’s erroneous holding that Keenan had reformed and was willing to tell the truth and take responsibility for his criminal conduct.
63I would reject these arguments.
64In my view, the proposed fresh evidence adds nothing significant to what the trial judge already knew when he was assessing Keenan’s credibility. To the contrary, based on the information before him, the trial judge had a full picture of the material considerations regarding Keenan’s guilty plea, his outstanding charges and sentencing, the Crown’s intended position on his sentencing and the defence entitlement to argue for a lesser sentence. I am therefore not persuaded that, if the trial judge had known what would occur at sentencing, he would have come to a different conclusion regarding Keenan’s credibility. Nor, on this record, can there be any serious suggestion that the trial judge was under the impression that Keenan, after insisting on the protections afforded to him by s. 5(2) of the CEA and s. 13 of the Charter, would later admit to greater involvement in the robbery to assist the Crown in aggravating his sentence beyond the fixed position described by the Crown at the appellant’s trial.
65In these circumstances, I conclude that the proposed fresh evidence is not sufficiently cogent that it could reasonably be expected to have affected the trial verdicts. I reach this conclusion for the following reasons.
66First, as I have already emphasized, the trial judge was aware of the factual basis for Keenan’s guilty plea on the robbery charge. Based on the transcript of the plea proceeding, Keenan’s statement to the police, and the Crown’s closing submissions, the trial judge knew that Keenan had entered a plea only as a party to the robbery on the basis that he was the driver of the getaway car and did not enter the victims’ residence.
67The trial judge also knew that Keenan had twice explicitly invoked his rights under s. 5(2) of the CEA and s. 13 of the Charter, including at trial, and that the Crown had agreed that it would not seek to rely on Keenan’s trial testimony at his sentencing hearing. Consequently, for the purpose of that hearing, Keenan could not be held to the altered version of events outlined by him at trial.
68Crown counsel also informed the trial judge of the Crown’s position on sentence regarding Keenan’s robbery conviction and his outstanding drug charges, and acknowledged that Keenan’s counsel could argue for a lesser sentence.
69Nothing in the proposed fresh evidence adds materially to any of these facts. It simply confirms what the appellant, his trial counsel and the trial judge already knew: i) that Keenan pleaded guilty to robbery on facts less blameworthy and inculpatory than those to which he admitted at the appellant’s preliminary inquiry and trial; ii) that his admission of greater involvement in the robbery placed him squarely at the heart of the crime, as a principal; iii) that his trial testimony was sheltered under s. 5(2) of the CEA and s. 13 of the Charter; iv) that, as a result, barring subsequent perjury or contradictory evidence by Keenan (which did not occur), the Crown had no admissible evidence against Keenan upon which it could rely, except what he had said in his police statement; v) that the Crown and defence had not agreed on a joint sentencing position; and vi) that the Crown’s position on sentence was fixed before the appellant’s preliminary inquiry, when Keenan first gave a more damning account of his role in the robbery and home invasion.
70Second, the defence theory that Keenan had a motive to fabricate and had only changed his version of events to gain a benefit for himself, was put squarely before the trial judge. During Keenan’s cross-examination and in final submissions, defence counsel relied heavily on Keenan’s plea of guilty to simple robbery, his outstanding sentencing hearing, and his reliance on the CEA and the Charter at the preliminary inquiry and again at trial to argue forcefully that Keenan was untrustworthy, self-interested, unreformed, unaccountable and unprepared to accept responsibility for his actions.
71For example, with respect to the significance of Keenan’s invocation of the protections against self-crimination afforded by the CEA and the Charter, defence counsel argued:
The Court: Well what’s – what would be the downside, you’d say, of not [invoking s. 5(2) of the CEA]?
[Defence Counsel]: Of not doing it? Well he would be exposing himself, of which admitted to, to, you know, possible ramifications in the criminal justice system by virtue of his evidence. So he’s – he gives the evidence that he did and he can say anything he wants in terms of past criminal behaviour and not face any repercussions with respect to that. So, in my view, it’s just – because he says, “I want to be accountable,” but he doesn’t really want to be accountable, in my submission. [Emphasis added.]
72Defence counsel also specifically alerted the trial judge to the benefit that Keenan stood to gain on sentencing as a result of implicating the appellant in the robbery and home invasion (a benefit that Keenan ultimately did obtain):
[Keenan is] prepared to turn on friends, and to escape responsibility for himself … We still don’t know why the sentence hearing has been put over for such a long period of time … Mr. Keenan, in a statement, indicated that he thought he might be spending five years in jail, prior to leaking the statement to the police … My friend attempts to say that his character is changed. I totally disagree with that given the evidence in this particular case. I’m thinking Mr. Keenan has somehow been able to, in effect, play the system by gaining advantages for himself to the point where we now know that he’s looking at a 17-month sentence with respect – an extremely serious matter that would probably attract a much longer penitentiary time than 17 months. So Mr. Keenan, in my view, continues to be very artful and manipulative.
73Defence counsel then drove the point home, in unambiguous terms:
[The Crown] accepted a plea to simple robbery, you know, based on the evidence that they then had. So, even if they wanted to proceed with the other charges, in my view, there’s no additional evidence that they can rely upon by virtue of Mr. Keenan’s statements here. So, I think Mr. Keenan has really played the system very well, quite frankly, to his advantage. [Emphasis added.]
74Third, contrary to the appellant’s submission, it is inaccurate to say that the trial judge’s acceptance of Keenan’s testimony was based primarily on Keenan’s claim that he was prepared to take responsibility for his criminal conduct and on the trial judge’s belief that Keenan was committed to rehabilitation. Based on his reasons, these were clearly important factors in the trial judge’s assessment of Keenan’s credibility and reliability. But, as I have explained, they were not the only factors.
75It is also important to consider the actual language of Keenan’s assertion, on cross-examination, that he was prepared to take responsibility for his actions. After Keenan confirmed that he gave his evidence at the appellant’s preliminary inquiry under the protections of the CEA and the Charter, he testified:
Q. All right. And you understand the effect of that protection is that your evidence cannot be used against you, is that correct, in any subsequent proceedings?
A. Correct.
Q. All right. And why, given your evidence about living a new lifestyle, why did you want the protection of the [CEA]?
A. Well, I would say that would be because I would incriminate myself on a few things I’ve said up here.
Q. All right. And you don’t want to take responsibility, I take it, for those things, in terms of other criminal proceedings, is that correct?
A. I’ll absolutely take the responsibility for it.
Q. Well, how do you plan to do that?
A. If it’s brought up in my court in my proceedings in my case, and certain things were brought to light in my case, I would certainly admit to them or not admit to them. [Emphasis added.]
76Keenan gave contradictory answers to counsel’s questions. While he said that he would “absolutely take the responsibility” for incriminatory things he said at trial, he also stated that, if those things were raised in his case, “I would certainly admit to them or not admit to them” (emphasis added). Keenan’s testimony thus left open the possibility that he might not admit the inculpatory parts of his trial testimony if they were raised at his sentencing hearing. Defence counsel chose not to further cross-examine Keenan on whether he would continue to rely on s. 5(2) of the CEA and s. 13 of the Charter at his sentencing hearing.
77In any event, regardless whether Keenan genuinely was willing to take responsibility for his admitted larger role in the robbery and home invasion, all participants at trial understood that his inculpatory account at trial of his role would not, in fact, “be brought to light” in his case, at least by the Crown.
78Viewed in the context of the way the trial unfolded and the nature of the case run by the defence, the proposed fresh evidence adds little to the picture of Keenan’s alleged manipulative propensity or the defence theory that he was ‘gaming the system’. This theory was fully developed at trial.
79Nor does the proposed fresh evidence regarding Keenan’s alleged rehabilitative efforts and commitment materially augment the information that was available to the trial judge. There was evidence of these efforts and commitment before the trial and sentencing judges. Both judges assessed the evidence before them and concluded that Keenan’s desire to rehabilitate himself was genuine. This finding was open to the trial judge on the record. The evidence supporting this finding simply improved by the time of Keenan’s sentencing, with the filing of a positive pre-sentence report.
80Fourth, the appellant maintains that the ASF filed at Keenan’s sentencing hearing would have provided fertile ground to impeach Keenan’s credibility. The ASF, the appellant says, demonstrates that Keenan was either lying to the court at trial regarding his role in the robbery and home invasion or he was misleading the court on this issue at his sentencing hearing.
81There is no doubt that the ASF depicted Keenan’s participation in the robbery and home invasion in a far less damaging light than did his testimony at the appellant’s trial. The filing of an ASF that disclosed only Keenan’s initial and more favourable account of his involvement, without any reference to his changed story that emerged in his testimony, is troubling. It was also misleading.
82However, the Crown had accepted that the admissions made by Keenan at trial were inadmissible at the sentencing hearing and could not be relied upon by the Crown. In these circumstances, the ASF was based on the only available, admissible evidence against Keenan.
83For the purpose of this appeal, the important point is that the ASF contained nothing significantly new. It simply reiterated the version of events recounted by Keenan in his police statement, a version known to the Crown, defence counsel, the appellant and the trial judge at the appellant’s trial.
84To the extent that the description of Keenan’s role in the ASF had potentially productive impeachment value, this impeachment opportunity already existed at trial, based on Keenan’s police statement and his conflicting trial testimony. And defence counsel at trial exploited this avenue of cross-examination by pressing Keenan on the contents of his police statement, his reasons for giving it, his minimization in the statement of his own role and complicity, and his untruthfulness. The ASF, therefore, did not materially augment this impeachment opportunity.
85I make this final point. There was a thread of material consistency running through Keenan’s various accounts of the robbery and home invasion. In his police statement, his preliminary inquiry testimony and his trial evidence, Keenan identified the appellant as one of the principal perpetrators of the robbery and home invasion. The ASF, deriving as it did from Keenan’s police statement, simply did so for a fourth time. This significantly undercuts the appellant’s assertion that Keenan falsely testified about the appellant’s involvement in order to gain a benefit from the authorities in relation to his own charges.
86For all these reasons, I conclude that the proposed fresh evidence does not satisfy the cogency requirement for admission on appeal.
(2) Other Grounds of Appeal
87The court did not call on the Crown to respond to the appellant’s remaining grounds of appeal. They may be dealt with summarily.
(i) Confirmatory Evidence
88First, the appellant contends that the trial judge erred by holding that aspects of Kelman’s testimony confirmed parts of Keenan’s evidence. This contention is also undercut by the trial record.
89As held by the Supreme Court in R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 15-16, and reiterated in Khela, at paras. 40-43, Kelman’s evidence did not have to implicate the appellant in the home invasion and robbery to be considered confirmatory. Further, in the absence of evidence of collusion or collaboration, the evidence of one unsavoury witness can confirm the testimony of another: R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at para. 67; R. v. Pelletier, 2012 ONCA 566, 291 C.C.C. (3d) 279, at para. 69. There is no evidence of collusion or collaboration in this case.
90Importantly, where the only issue in dispute is whether the accused before the court committed the offence, a trier of fact is entitled to convict on the evidence of an unsavoury witness even in the absence of confirmatory evidence, as long as the trier is aware of the dangers of doing do and is satisfied that the witness, despite the frailties or shortcomings in his or her evidence, is telling the truth in that regard: Khela, at para. 37; Kehler at para. 22; Roks, at paras. 65-66; Pelletier, at paras. 67-68.
91Here, Kelman’s testimony confirmed an important and relevant aspect of Keenan’s evidence at trial. He said that Keenan and his friend went into the victims’ house and carried out the robbery, while Kelman himself remained in the getaway car. In other words, although Keenan had initially minimized his involvement in the home invasion and robbery, Kelman confirmed his greater participation, as Keenan detailed at trial.
92Kelman also confirmed other aspects of Keenan’s version of events at trial. As noted by the trial judge, he confirmed Keenan’s evidence that he and Keenan had driven by the victim’s residence before the date of the robbery, that Kelman participated in the robbery because he owed Keenan money for drugs, that it was Kelman’s shotgun that was used in the robbery, that the proceeds of the robbery were divided at Kelman’s home, and that Kelman received some of the stolen drugs.
93In accordance with the principles set out in Vetrovec and Khela, the trial judge recognized that the other evidence at trial should be scrutinized to determine if it could afford comfort that Keenan could be trusted in his assertion that the appellant was the third robber. He held, in effect, that aspects of Kelman’s testimony provided some comfort of Keenan’s trustworthiness on this central issue.
94This was part of the trial judge’s fact-finding function. I see no reversible error in his holding. In the respects outlined above, Kelman’s evidence could properly be viewed as confirmatory of aspects of Keenan’s testimony. I would dismiss this ground of appeal.
(ii) Uneven Scrutiny
95I reach a similar conclusion concerning the appellant’s submission that the trial judge erred by applying different standards in assessing the evidence of Kelman and Keenan.
96This court has previously recognized that it is difficult for an appellant to succeed on the “different standards of scrutiny” argument for two related reasons. First, credibility findings are the province of the trial judge and attract a very high degree of deference on appeal. Second, appellate courts “invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge’s credibility determinations”: R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 39. To succeed in this argument, an appellant must identify something in the trial judge’s reasons or the record that makes it clear that the trial judge applied different standards of scrutiny in assessing the evidence in question: Aird, at para. 39; R. v. Gravesande, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 19.
97This threshold has not been met here. I have already described the trial judge’s approach to Keenan’s evidence and his assessment of Kelman’s testimony. I see nothing uneven in his evaluation of the evidence of these witnesses. To the contrary, I regard his approach as balanced and fair. As I have said, the trial judge subjected Keenan’s evidence to special scrutiny. This was appropriate and necessary as the Crown’s case against the appellant turned on his testimony and he was an unsavoury witness.
98Finally, the trial judge rejected Kelman’s evidence on its own terms, for clear and cogent reasons, including: his failure to exonerate the appellant on a timely basis, despite ample opportunity to do so; the implausibility of his evidence regarding the robbery; his extensive criminal record (including for multiple crimes of dishonesty); his apparent animus toward Keenan; and his friendship with the appellant. Based on the trial judge’s reasons, I agree with the Crown’s submission that the rejection of Kelman’s evidence was rooted in common sense, not a higher level of judicial scrutiny.
VII. Disposition
99For the reasons given, I would dismiss the appellant’s fresh evidence application. I would also dismiss the appeal.
Released:
“BM” “E.A. Cronk J.A.”
“JUL 19 2016” “I agree John Laskin J.A.”
“I agree B. Miller J.A.”
Footnotes
- Under s. 5(2) of the CEA, with certain exceptions, where a witness objects to answer any question on the ground that the answer may tend to criminate him, then although the witness is compelled to answer by reason of the CEA or any provincial statute, the answer given cannot be used or is inadmissible in evidence against the witness in any later criminal trial or other criminal proceeding against the witness. A similar protection against self-crimination, subject to identical exceptions in a prosecution for perjury or for the giving of contradictory evidence, is enshrined in s. 13 of the Charter.
- For reasons that are unexplained on the record before this court, Crown counsel at Keenan’s sentencing hearing sought a sentence of 22 months’ imprisonment on the robbery charge – five months longer than the Crown had indicated at the appellant’s trial.
