Court of Appeal for Ontario
Judges: Watt, Hourigan and Miller JJ.A.
Between
Her Majesty the Queen Respondent
and
Michael Dwight Allen, Zacky Deleon and Jaime Restrepo Appellants
Counsel
Philip Campbell, for the appellant, Jaime Restrepo
Margaret Bojanowska, for the appellant, Michael Dwight Allen
Zachary Kerbel, for the appellant, Zacky Deleon
John Patton, for the respondent
Heard: November 22, 2017
On appeal from the conviction entered on July 10, 2008 by Justice Ronald G. Thomas of the Superior Court of Justice, sitting with a jury.
Endorsement
Introduction
1Ronnie Khananisho and a chameleon have something in common: the ability to change according to their surroundings. A chameleon changes colour, Ronnie Khananisho his story about how a man came to be murdered.
2Ronnie Khananisho had one version for the police, a second, for a jury. Both these versions, he now says, are lies. Cobbled together from information provided by the police. Repeated before a jury to avoid being charged.
3Years later, Ronnie Khananisho has a third version of the same events. An account offered here as truthful, six years after a different panel of this court dismissed appeals by those convicted of the murder about which Khananisho testified.
4As I will explain, I would not admit Ronnie Khananisho's most recent rendition of the murder of Mauricio Castro as fresh evidence and would confirm the order of the prior panel dismissing the appeals from conviction.
The Background Facts
5Some background about the nature of the case presented at trial and the role of the testimony of Ronnie Khananisho in the demonstration of guilt there will provide the setting necessary to understand and evaluate the basis upon which the further evidence of Khananisho is proposed for reception here. I will first summarize the Crown's case against the appellants, before describing how Khananisho's evidence fit within that case.
The Crown's Case
Overview
6Mauricio Castro was a large scale importer of cocaine. His source in Colombia was his father, Humberto Castro. Mauricio Castro sold wholesale quantities of cocaine to the appellant Jaime Restrepo and his brother, Jorge Restrepo. The Restrepos would resell the cocaine to lower level dealers at a substantial profit. Among those who delivered cocaine to the lower level dealers were Zacky Deleon and Jorge Acosta-Cardenos ("Jorge Acosta" or "Acosta").
7During the summer of 2005, the Restrepo brothers were indebted to the Castro family for $1,000,000 for cocaine that the Castros had provided to them. To extinguish the debt, Jaime Restrepo developed a plan to kill both Mauricio and Humberto.
8The plan to kill the Castros involved five people. Jaime, the mastermind, left Canada for Colombia where he would arrange the murder of Humberto Castro. Michael Allen, another lower level drug dealer, would shoot Mauricio Castro to death in Canada. Allen was introduced to Jaime by Ronnie Khananisho, a low-level drug dealer who had dealings with Allen and the Restrepo brothers. Allen would be driven to and from the scene of the shooting by Jorge Acosta and was to be paid two kilograms of cocaine for the killing. The payment was to be delivered by Zacky Deleon from the Restrepos' supplies. Jorge Restrepo was his brother's right-hand man and well-versed in the plan.
The Evidence of Jorge Restrepo and Jorge Acosta
9Jorge Restrepo and Jorge Acosta testified as Crown witnesses at trial. Their evidence disclosed the motive for the killing – to eliminate the $1,000,000 debt the Restrepos owed the Castros – and described the plans initially made and later revised to have Michael Allen shoot Mauricio Castro to death near Square One in Mississauga on July 26, 2005. These witnesses also explained how the various participants in the plot were paid after Castro was shot to death. About five days later, when Jaime Restrepo was in Colombia, Humberto Castro was murdered there.
The Plan To Kill Mauricio Castro
10The originator of the murder plan was Jaime Restrepo. The plan was a means by which he could satisfy his $1,000,000 debt to the Castros for drugs and money that had been seized by government agents. An earlier plan to kill both Mauricio and Humberto in Colombia had failed to materialize. When Acosta and Jaime left Colombia, Jaime advised Acosta that the plan had changed: Mauricio would be killed in Canada and Humberto murdered in Colombia. Jorge Restrepo agreed with this plan.
Recruiting the Shooter
11Michael Allen was to be the shooter of Mauricio Castro. The Restrepo brothers asked Zacky Deleon for Allen's phone number. Deleon did not have the number, but told the Restrepos that it would be safe for them to ask Ronnie Khananisho for assistance.
The Meeting in the Park
12Prior to the shooting of Mauricio Castro, the Restrepo brothers, Allen, Khananisho, Deleon and Acosta met in a park not far from the Square One shopping complex where Castro was shot to death.
13Jorge Acosta recalled that while the group was at the park, Jaime Restrepo and Michael Allen had a conversation for about 15 to 20 minutes. The two men were standing about 20 metres away from the others. Acosta did not hear what Allen and Jaime Restrepo said to one another. But when Jaime returned to his brother's truck, he (Jaime) said that Allen would kill Mauricio Castro for two kilograms of cocaine.
14In his statement to investigators and evidence at the preliminary inquiry, Acosta omitted any reference to Ronnie Khananisho's presence at the meeting in the park. He wanted to keep Khananisho out of his account. Acosta also admitted that he had lied in his prior statement and evidence about who was at the meeting in the park and how they got there. He denied that he had been told by the police or Crown to say that Khananisho was at the meeting.
15Jorge Restrepo testified that the meeting at the park took place two days after a meeting at the J.R. Social Club with Ronnie Khananisho. Jorge Restrepo, his brother Jaime, Jorge Acosta and Zacky Deleon arrived together. Khananisho and Allen arrived together in Khananisho's vehicle. Jaime Restrepo and Allen spoke privately about 20 feet away from the other members of the group. After this discussion, Jaime said Allen would kill Mauricio Castro for two kilograms of cocaine.
16In his first police statement Jorge Restrepo made no mention of Ronnie Khananisho's presence at the meeting in the park. In another statement, about five months before trial, Jorge Restrepo was unsure whether Khananisho had been present at the meeting in the park. Jorge Restrepo denied fabricating his testimony and tailoring it to match what Jorge Acosta had said at the preliminary inquiry.
The Shooting of Mauricio Castro
17Jaime Restrepo flew to Colombia on July 24, 2005 to arrange for the murder there of Mauricio's father, Humberto Castro. Jorge Restrepo was to arrange Mauricio's murder in Canada. Initially, the plan was that Mauricio would be killed at his home. Jorge Restrepo and Acosta surveilled the area around Castro's home in Bolton for this purpose.
18The following day, Acosta met with Allen and Deleon at a Future Shop outlet to finalize plans for the killing. They confirmed Castro's home as the site for the killing. But Allen, who had no car, refused to ride his motorcycle to the scene. He wanted a driver. Deleon demurred. Later that same day, Acosta, his wife and Deleon drove to Bolton to look at Castro's home. Castro's car was in the driveway. Acosta called Allen to suggest the killing should take place immediately. But Allen was in London. There would be no killing that day.
19On July 26, 2005 Acosta and Allen drove to Bolton. Castro was not home. They returned to Toronto. They met with Jorge Restrepo. Allen insisted that the killing take place at noon when Castro and Jorge Restrepo were scheduled to meet in Mississauga. Castro parked outside the restaurant where the meeting was to take place. Acosta, Jorge Restrepo and Allen were in the area. Allen left Acosta's car. Ten minutes later he returned. Allen said he had shot Castro once in the face and three times in the chest.
The Payment
20Shortly after Allen shot and killed Mauricio Castro, Deleon instructed Acosta to pay Allen his fee for the killing – two kilograms of cocaine. Deleon got the drugs from a warehouse and provided them to Allen. Jorge Restrepo testified that he paid Acosta $80,000 and Deleon $65,000. Acosta insisted that Deleon only received $50,000.
The Medical Evidence
21The Crown tendered evidence from a forensic pathologist, who testified that Mr. Castro suffered four bullet wounds: one to the face and three to the upper body. This evidence matched Jorge Acosta's account of how Allen described the shooting to him immediately after it took place.
The Cellphone Evidence
22Evidence was given at trial about contact between cellphones attributed to various participants at different times before, contemporaneous with and after the shooting of Mauricio Castro.
23On July 25, 2005 Deleon's phone contacted Allen's phone nine times and Jorge Restrepo's phone three times. Between 4:00 and 6:00 p.m., Acosta's phone registered at a location near the Future Shop where he said he had met with Allen and Deleon to talk about the murder. At 10:45 that same evening, while Acosta and Deleon were surveilling Castro's home in Bolton, Deleon called Allen whose phone registered in London and Jorge Restrepo called Acosta, whose phone registered in Bolton.
24During the morning of July 26, 2005, the day Mauricio Castro was killed, there was repeated contact between the phones of Acosta and Allen including an early morning call that registered in Bolton where Acosta had driven in anticipation that the murder would take place there. Around 9:41 a.m., Jorge Restrepo called Mauricio Castro, consistent with Restrepo's evidence about setting up their noon hour meeting in Mississauga. Acosta called Jorge Restrepo around 11:00 a.m., each registering in the Square One shopping centre area. The cellphones of Jorge Restrepo, Castro, Acosta and Allen all registered in the Square One area between 11:41 and 11:49 a.m. Deleon's phone registered in Barrie.
25Mauricio Castro was shot to death at 11:53 a.m. on July 26, 2005.
26At 11:57 a.m. Acosta called Jorge Restrepo. The call registered in the area of Mississauga Road and Silver Creek. Acosta called Deleon at 12:18 p.m., then two unknown numbers in Colombia. Deleon, whose phone registered in Barrie, contacted Acosta at 12:29 p.m. and Jorge Restrepo at 12:56 p.m. A few hours later, at 6:17 p.m., Deleon contacted Allen. Deleon's phone registered near Yonge St. and Sheppard Ave., in the area where he claimed to have obtained two kilograms of cocaine from a warehouse to pay Allen. Deleon contacted Allen seven times between 6:55 p.m. and 7:14 p.m. At 7:15 p.m., Deleon called Allen again. Both of their phones registered in the area of Yorkdale Mall.
27Acosta, Jorge Restrepo and Deleon last used their phones on the day on which Mauricio Castro was shot to death.
Ronnie Khananisho's Evidence
28The Crown also called Ronnie Khananisho as a witness. Khananisho was an associated distributor-level drug dealer who bought cocaine from the Restrepos, then resold it for a profit.
29Ronnie Khananisho provided two statements to the police before testifying at trial. In his first statement, provided in 2006, he denied having any knowledge relevant to Mauricio Castro's murder. In his second statement, provided in 2008, Khananisho acknowledged that Jaime Restrepo asked him to help "do something" about Restrepo's cousin. Khananisho thought that Jaime Restrepo was referring to killing his cousin, though Jaime never explicitly mentioned this.
30Ronnie Khananisho was a very reluctant and uncooperative witness for the prosecution at trial. He acknowledged that he sold cocaine by the pound to others and that the cocaine was supplied to the Restrepo brothers. He was also the part owner with his brother of the J.R. Social Club and had a similar interest in a sports bar with Jaime Restrepo.
31Ronnie Khananisho testified that he "may" have met Jaime Restrepo at the Social Club in the summer of 2005. In the discussion that followed, Khananisho learnt that Jaime Restrepo owed Mauricio Castro some money and could not repay him. Jaime wanted "to do something", "could be anything", maybe "hurt him" or even "kill him". Khananisho told Jaime that he wouldn't help him and walked away. But Khananisho admitted that he knew Michael Allen's telephone number. He provided that number to Jaime Restrepo.
32Ronnie Khananisho confirmed that he drove Michael Allen to a park prior to the killing of Mauricio Castro. There they met Jaime and Jorge Restrepo, Jorge Acosta and Zacky Deleon, who had come together in a different vehicle. Khananisho said that the meeting, which had been pre-arranged, was about their drug business. He explained that Jorge Restrepo, Deleon and Acosta had delivered cocaine to him in the past. Khananisho and Allen worked together buying one-half kilograms of cocaine at a time. Khananisho was vague about the timing of the meeting, but at one point agreed that it could have been two to four weeks before Castro was shot to death, and two weeks after he and Jaime Restrepo had met at the J.R. Social Club.
33Ronnie Khananisho testified that on the date of the shooting he was at a wedding in Mexico with his friend, Johnny. The wedding was at a beach resort, but Khananisho could provide no further details. He did not know the couple who were being married, nor for that matter anybody else at the wedding. Khananisho simply tagged along with his friend.
34Ronnie Khananisho made it clear in his examination-in-chief by the Crown (not Mr. Patton) that he was not happy to be in court testifying at the appellants' trial. Had he not been subpoenaed as a witness, he would not have appeared voluntarily to give evidence. He claimed that members of the Peel Regional Police Service told him that if he lied in giving evidence, he would be charged with conspiracy to commit murder in connection with the shooting of Mauricio Castro.
35In cross-examination at trial, Ronnie Khananisho testified that the police and others made clear to him that the police believed Allen to be the shooter and that he, Khananisho, had set up a meeting between Allen and Jaime Restrepo. In January 2008, about two years after his first statement to the authorities, Khananisho was invited by the police for a further interview. At this time he had a lawyer, one who had represented him on several prior occasions. Once again, Khananisho was offered the choice of talking to the police or being charged with conspiracy to commit murder. He knew what police expected him to say and felt he had no choice but to do so.
36At trial, Crown counsel, apparently displeased with Khananisho's failure to give evidence in accordance with his January 2008 statement, reminded Khananisho periodically that the video of his police interview could be played to help him recall various events. Khananisho took these reminders as a signal that he was not cooperating and not providing the testimony expected of him. It was during one of these exchanges about playing the video that Khananisho testified that Jaime Restrepo said "[m]aybe kill him" when he asked Khananisho for help in "doing something" to Castro in connection with the $1,000,000 outstanding debt for supplying cocaine.
37In re-examination, Khananisho agreed that both the police and the Crown told him to tell the truth in his testimony at trial.
The Defence Position
38The defence presented a united front at trial although none of the appellants testified or called any witnesses. They contended that Acosta fabricated his testimony, as did Jorge Restrepo, who was permitted to review the evidence Acosta had given at the preliminary inquiry. The defence contended that Khananisho provided false evidence to confirm the testimony of Jorge Restrepo and Acosta because he was provided with the substance of the Crown's theory by police and threatened with prosecution if he deviated from the script. Counsel for Jaime Restrepo suggested that Acosta and Jorge Restrepo had carried out the killings themselves.
The Verdict
39The jury convicted the appellants of first degree murder. Before rendering its decision, the jury requested a review of Khananisho's evidence regarding the meeting at the Mississauga park.
The First Appeal
40The appellants appealed their convictions to this court. They alleged several errors in the trial judge's charge to the jury, in particular, that:
i. the Vetrovec warning with respect to the testimony of Jorge Restrepo and Jorge Acosta was inadequate;
ii. the distinction the trial judge drew in the cautions he gave jurors about the evidence of Jorge Restrepo, Acosta and Khananisho was unwarranted and legally wrong;
iii. the charge failed to point out that there was no confirmatory evidence in relation to Jaime Restrepo's testimony; and
iv. the trial judge failed to properly instruct the jury on the defence of abandonment in connection with the appellant Deleon.
41On November 30, 2011 a differently constituted panel of this court dismissed the appeals.
The Motion for Leave to Appeal
42Almost four years later – August 12, 2015 – the appellants sought leave to appeal to the Supreme Court of Canada from the decision of this court. In addition to alleging legal errors in the dismissal of their appeal, the appellants sought leave to introduce as fresh evidence Ronnie Khananisho's recantation of his trial testimony.
43On February 16, 2016 the Supreme Court of Canada invoked s. 43(1.1) of the Supreme Court Act, R.S.C. 1985, c. S-26 to remand the case to this court to determine the admissibility of the fresh evidence. The Court held the remainder of the motion for leave to appeal in abeyance pending our determination of the fresh evidence application.
The Motion to Introduce Fresh Evidence
44The single issue assigned to us is whether it is in the interests of justice to receive the fresh evidence proposed for admission. The focal point of the fresh evidence is the affidavit of Ronnie Khananisho recanting his trial testimony and his cross-examination on that affidavit. Additional materials, including the affidavits of Inspector Martin Ottaway of Peel Regional Police Service and of Emily Lauren Huard, together with their cross-examinations on those affidavits, provide context to assist in determining the admissibility of the Khananisho affidavit.
45In earlier paragraphs I have summarized the evidence Ronnie Khananisho gave at trial. Repetition here would serve no useful purpose.
The Affidavit of Ronnie Khananisho
46On November 21, 2014, nearly three years after this court dismissed the appellants' appeals from conviction and more than nine years after Mauricio Castro was shot to death, Ronnie Khananisho swore the affidavit that is proposed for reception on appeal.
47In the second paragraph of his affidavit Ronnie Khananisho swore:
Important parts of the evidence that I gave at the trial were false. I had no information whatever about the killing of Mauricio Castro, either before it happened or after. I did not witness anything to indicate that Jaime Restrepo, Jorge Restrepo, Jorge Acosta, Zacky Deleon or Michael Allen were involved in the murder of Mr. Castro.
48In subsequent paragraphs of his affidavit Ronnie Khananisho:
i. denied being asked by Jaime Restrepo to assist in killing or hurting Mauricio Castro;
ii. denied providing Michael Allen's phone number to Jaime or Jorge Restrepo, Zacky Deleon or Jorge Acosta or being asked to do so; and
iii. acknowledged a meeting in a Mississauga park with the Restrepos, Deleon and Acosta, but said it was about drug dealing, not the murder of Mauricio Castro. Khananisho could not recall when the meeting occurred in relation to Castro's murder.
49In his affidavit, Ronnie Khananisho acknowledged that his trial testimony about his relationship with the Restrepos, Deleon, Acosta and Allen was "basically true", including his purchase of cocaine from the Restrepo group, its delivery by Deleon and sale of some of it to Allen. He admitted a closer relationship with Jaime than with Jorge Restrepo, but said he knew nothing about any debts owed by the Restrepos to Castro or any desire on the part of the Restrepos to have Castro murdered.
50Ronnie Khananisho deposed that he could not remember exactly when he heard about the murder of Mauricio Castro. The murder had been reported in the media, but beyond that he knew nothing about it, either before or after it happened. He confirmed his trial testimony that he was in Mexico on the day Castro was shot to death.
51In connection with his police interview on March 6, 2006, Ronnie Khananisho averred that police officers interviewed him a few days after they had questioned his brother. He believed before and after the interview that the police suspected that Michael Allen had killed Mauricio Castro and the he (Khananisho) was involved in some way. As the interview progressed it became clear to Khananisho that the police believed that:
i. he had put the Restrepos in contact with Michael Allen, after Jaime Restrepo had asked for assistance in the killing of Mauricio Castro;
ii. Michael Allen shot and killed Mauricio Castro; and
iii. Michael Allen came to the J.R. Social Club after the killing.
Apart from being aware of the arrest of the appellants, Ronnie Khananisho said he knew nothing about the case or the evidence.
52Ronnie Khananisho's affidavit also describes his police interview in January, 2008, nearly two years after his first interview. He was contacted by a detective from Peel Regional Police Service. In turn, Khananisho consulted a lawyer who had acted for him on several previous occasions. As a result, Khananisho understood that if he did not cooperate by giving a statement and evidence against the appellants, he would be charged with conspiracy to commit murder. He instructed his lawyer to tell the police that he would not give a statement. But later that day, he went to the police station and was interviewed by a police officer. The interview was videotaped, but not under oath.
53In his affidavit, Ronnie Khananisho offered the following explanation for what he told the police during the videotaped interview of January 23, 2008:
Though I did not sign an agreement with the police during that interview, I did end up answering questions from Detective Lawson on videotape. As I answered his questions, I was aware that if I did not tell the police what they believed, I would be charged with conspiracy to murder Mauricio Castro. As a result, I gave the police information that fit with what I believed they thought about the murder and the part in it played by Michael Allen, Jaime Restrepo and Zacky Deleon. This recorded interview was the "video" that the Crown Attorney mentioned while I was testifying in court. When I testified in court, I believed that if the Crown had to question me on the video I gave, I would be considered an uncooperative witness and could be charged with conspiracy to commit murder.
At the time of this interview, I was married and had three small children. My wife was pregnant. I was very afraid of being charged with conspiracy to commit murder. I knew that the police had witnesses who were saying that Jaime, Mikey and Zacky were guilty of murder because they got charged and held in prison. If those witnesses were saying that I conspired to commit the murder too, then it was possible I could be charged and convicted even though I knew nothing about the killing and had nothing to do with it. That is why I went along with the police theories about my involvement with Mikey, Jaime and Zacky and it is why I gave the testimony I did at their trial.
54Ronnie Khananisho offered this explanation for coming forward now to "correct my false evidence":
I am coming forward now with the truth because I want to tell the truth and correct my false evidence. I have not come under any kind of pressure to provide this affidavit and I do not expect any advantage from telling the truth. I understand that I may still be prosecuted for conspiracy to commit murder, or for perjury and other offences related to my false testimony. I am prepared to accept those consequences if necessary.
I understand that I may be required to give under oath in proceedings before the Supreme Court of Canada, or at a special examiner's office, and in any subsequent court proceedings in this case. I am prepared to attend as required for this purpose.
The Cross-Examination of Ronnie Khananisho
55Counsel for the respondent cross-examined Ronnie Khananisho on his affidavit at considerable length. Among the subjects counsel canvassed with Khananisho were four features of the evidence he gave at trial:
i. his drug dealing relationship with the Restrepo group and Michael Allen;
ii. his conversations with Jaime Restrepo about Mauricio Castro;
iii. his disclosure of Michael Allen's telephone number to the Restrepo group; and
iv. the meeting in the park in Mississauga with members of the Restrepo group and Michael Allen
56On the first subject, Ronnie Khananisho reiterated that his evidence at trial about his drug dealings with the Restrepo group was "basically true". Khananisho acknowledged that he bought one or two kilograms of cocaine each week from Jaime Restrepo, whose source was Mauricio Castro. Khananisho sold what he bought at a profit of $3,000 to $5,000 per week. One of the persons to whom he sold cocaine was Michael Allen.
57On the topic of his discussions with Jaime Restrepo, Ronnie Khananisho denied that Restrepo ever asked him about having Mauricio Castro killed. Khananisho affirmed his earlier evidence that he was prone to walk away from conversations that sought his help but could get him in trouble. Being asked to "help out" could have meant anything, such as providing a phone number or giving Michael Allen a ride to the park. He denied any memory of being asked to help kill Castro.
58Ronnie Khananisho also maintained during cross-examination that he did not provide Michael Allen's phone number to the Restrepo group. Khananisho did acknowledge that as a participant in the drug business he changed his telephone number frequently, as did Michael Allen.
59When cross-examined on his affidavit, Khananisho acknowledged attending a meeting in a park with the Restrepo brothers, Jorge Acosta and Zacky Deleon. He insisted, however, that the meeting was held to discuss drug-dealing activities. Khananisho testified that he said nothing about the meeting in the park during his police interview because he wanted to get out of the interview without implicating anybody. He acknowledged that he drove Allen to the park and confirmed his trial evidence about those present and that some of the participants had private conversations with others apart from the rest of the group. He agreed with a suggestion that the meeting had occurred about two weeks to a month before Mauricio Castro was shot to death.
60Counsel for the respondent also cross-examined Ronnie Khananisho on his whereabouts on July 26, 2005, the date on which Mauricio Castro was killed. At first, Khananisho said he didn't know where he was on that day. Reminded of his claim during his police interview and at trial that he had been in Mexico, Khananisho recalled that he had been there with his friend, Johnny, at a wedding. He didn't know any of the wedding party or anybody else apart from Johnny and could not recall where the wedding took place other than at some beach in Mexico. His wife did not accompany him. He simply tagged along with Johnny.
61Ronnie Khananisho was asked about several other incidents in which he had been involved prior to the killing of Mauricio Castro. The likelihood that he provided a false alibi for his brother when he (his brother) was charged with manslaughter. His minor criminal record, including a conviction for mischief. His repeated border crossings including occasions when border security officers found him returning to Canada with $30,000 in cash (for which he offered different explanations) and, a few months later, in a vehicle with a secret compartment large enough to hold a gun. A police search of his home that resulted in seizure of a loaded handgun and large amounts of cash.
62During cross-examination, Ronnie Khananisho elaborated on his relationship with the police and how it had affected the evidence he gave at the appellants' trial. He explained that the police frequently came to his home and place of business to put pressure on him. He admitted to giving false evidence when he stated at trial that the police and Crown never suggested that he say anything but the truth. And he suggested that his own lawyer, whom he consulted during the trial and who had acted for him several times over the years, may have been working for the police.
63Inspector Martin Ottaway of Peel Regional Police Service filed an affidavit in response to Khananisho's fresh evidence about his relationship with the police. Inspector Ottaway stated that police contact with Khananisho was limited to two interviews by investigators, service of a subpoena, a meeting with the trial Crown to prepare for trial, and his testimony at trial. Inspector Ottaway acknowledged that police had attended at Khananisho's home and business at different times in an attempt to locate him, but had to return later because he had been elsewhere.
64Inspector Ottaway also contradicted Khananisho's denial that the police and Crown had not told him to tell the truth in giving his evidence. Inspector Ottaway reviewed various references in Khananisho's statement to the police, in the notes of investigating officers and in Khananisho's testimony at trial. Inspector Ottaway confirmed that Khananisho's counsel was not working for the police or for the Crown.
65During cross-examination on his affidavit, Ronnie Khananisho admitted that his memory had worsened with time when he was asked about events that had occurred about 11 or more years earlier. Throughout his cross-examination, he seemed reluctant to answer "yes" to questions, preferring instead "ok" or "I don't remember", unless specifically asked: "Is that a 'yes'?".
The Circumstances of The Recantation
66Ronnie Khananisho was also cross-examined about the circumstances in which he came to resile from his trial testimony and participate in the preparation of the affidavit proposed for admission as fresh evidence.
67Ronnie Khananisho explained that in 2012, Emily Huard, Michael Allen's former girlfriend and the mother of Allen's child, came to his auto repair business and inquired about the cost of shipping a vehicle from Vancouver. Allen and Khananisho were in the drug business together. Allen had been in custody with Khananisho's brother. According to Khananisho, Emily Huard mentioned that some others had said that Khananisho wanted to come forward and "say the truth". Khananisho told her to contact Allen with whom she had remained in contact.
68Subsequently, Allen's appellate counsel contacted and met with Ronnie Khananisho. Khananisho also met with Jaime Restrepo's appellate counsel. Counsel for Restrepo then sent Khananisho a draft affidavit. After he reviewed the draft affidavit, Khananisho contacted his own long time counsel for advice.
69Ronnie Khananisho was in no hurry to swear the affidavit. He did so when Allen's appellate counsel re-attended at his place of business. He swore the affidavit approximately 30 months after being contacted by Emily Huard.
70When cross-examined on her affidavit, Emily Huard testified that her original information about Ronnie Khananisho's wish to recant his trial evidence came from "Luke", a person whose last name she did not know. Michael Allen never raised this subject with her in their many telephone conversations because she and Allen did not talk about his various court proceedings.
71Emily Huard acknowledged that a portion of her affidavit was misleading in that it left the impression that she was then a student in a paralegal program. She explained that she was enrolled in the program but not attending classes. She also admitted that she was hesitant about attending for cross-examination because of "really bad anxiety issues". Accordingly, she sometimes just retreated and disappeared and did not respond to telephone calls, including those from counsel attempting to set up a time for cross-examination by videoconference.
The Arguments on Appeal
72The appellants accept that reception of the proposed evidence is controlled by the principles articulated in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, as restated in R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321. These principles, articulated in greater depth below, focus on the admissibility and cogency of the proposed evidence, and the explanation for its absence at trial. The appellants recognize that where the proposed evidence is a recantation of trial testimony, the cogency requirement is the controlling factor. And they say that the proposed evidence satisfies the cogency requirement and would be admissible if given at trial. Due diligence is not in play in this case involving recantation of trial testimony.
73The appellants begin with a brief reference to the admissibility requirement. Evidence from Ronnie Khananisho that:
i. Jaime Restrepo did not approach him about killing Mauricio Castro;
ii. he did not introduce Michael Allen to members of the Restrepo group or provide them with Allen's phone number; and
iii. the meeting in the Mississauga park involved no discussion of the murder of Mauricio Castro
is relevant, material and admissible were it to have been tendered at trial.
74The appellants acknowledge that the reception of the proposed evidence depends upon satisfaction of the cogency requirement, which in turn is inextricably linked to the credibility of both the recantation and Khananisho's trial evidence. They remind us that our role does not extend to a determination of the ultimate credibility of Khananisho or the reliability of his evidence, but whether his affidavit is sufficiently cogent to warrant admission as fresh evidence.
75According to the appellants, there is good reason to believe that Ronnie Khananisho's trial evidence was false and his recantation of it is true. Khananisho testified under significant pressure and with extreme reluctance. Police questioning of Khananisho made him aware of the essential features of the case for the Crown and what the police believed had occurred. Jaime Restrepo was the organizer. Michael Allen was the shooter. Khananisho introduced Allen to Jaime Restrepo. Deleon, Acosta and Jorge Restrepo were also involved. The plan was discussed at a meeting in a Mississauga park within weeks of the murder. Apart from what he learned during the police interviews, Khananisho added nothing to the narrative. And so, his trial evidence was neither credible nor reliable.
76On the other hand, the appellants continue, several factors, considered in combination, demonstrate the cogency of the recantation. By recanting, Khananisho puts himself at significant risk of a prosecution for perjury, not to mention conspiracy to commit murder. As a statement against its maker's interest, the recantation has about it the inherent reliability that the common law attaches to statements against interest. Nothing suggests any outside pressures or influences, as for example from the appellant Allen, about whom Khananisho expresses no fear. Khananisho, unlike many, has not recanted his recantation. Nor has his account been contradicted, as for example, by the trial Crown.
77While the appellants acknowledge that some of Ronnie Khananisho's responses appeared to contradict other parts of his evidence, they attribute his difficulty in answering questions to his limited vocabulary and admitted difficulties in reading. Neither his appearance nor his demeanour in responding to questions put in cross-examination disclose any inappropriate effort to appear convincing. His explanation for the meeting in the park – discussions about the drug business – reveals its commonplace nature and accounts for his earlier omission of any reference to the meeting in his police interviews.
78What is more, the appellants say, had the evidence proposed for reception been given at trial, it could reasonably be expected to have affected the verdict. Ronnie Khananisho was one of three witnesses whose evidence occupied a central position in the Crown's attempt to prove the appellants' guilt. Unlike the other two witnesses – Jorge Restrepo and Jorge Acosta – Khananisho's evidence was not subject to a Vetrovec caution. The trial Crown emphasised Khananisho's status as a reliable source of information, a person who was outside the murder partnership, thus independent of it. The trial judge reiterated this characterization when instructing the jury on the position of the Crown. Further, the only question asked by the jury during its deliberations sought a review of Khananisho's evidence. This affords some indication that the jury viewed this evidence as central to the demonstration of guilt.
79The appellants contend that Khananisho's recantation lends support to the defence position about the unreliability of his testimony at trial. That evidence amounted to little more than Khananisho's regurgitation of the theory of the police and Crown to ensure that he remained a free man. His affidavit and subsequent cross-examination extend beyond a mere recantation to expose the evidence of both Jorge Restrepo and Jorge Acosta as fabricated. The balance of the evidence adduced at trial does not discharge the standard of proof assigned to the Crown. A new trial should be the order of the day.
80For the respondent, the application of the controlling principles established by the decisions in Palmer and Truscott compel the rejection of the recantation evidence. The evidence is not reasonably capable of belief. But even if it were so, the proposed evidence could not reasonably be expected to have affected the verdict at trial. This evidence is so highly suspect, both in its origins and in its substance, as to be worthless, devoid of probative value.
81At the outset, the respondent reminds us, appellate courts are singularly reluctant to admit further evidence of witnesses who seek to distance themselves from the evidence they gave under oath at trial. Quite rightly, courts subject this evidence to strict scrutiny at every level, including a searching evaluation of the process leading up to the recantation, to ensure that it is free of taint from any party who seeks its introduction.
82The respondent underscores the importance of considering the significance of the recanted trial evidence to the demonstration of guilt at trial. Here, the case for the Crown did not stand or fall on the evidence on Ronnie Khananisho. The heavy lifting was done by the two particeps criminis – Jorge Restrepo and Jorge Acosta – together with significant unimpeachable confirmatory evidence, such as cellphone records. The respondent says that the case for the Crown, as described by Jorge Restrepo and Jorge Acosta, was uncontradicted and comprehensive.
83By contrast, Ronnie Khananisho, who was not even called as a witness at the preliminary inquiry or mentioned in the trial Crown's opening address to the jury, testified about four discrete issues each of which had been canvassed in much greater detail with Jorge Restrepo and Jorge Acosta:
i. the drug-dealing relationship between the Restrepo group, Khananisho and Michael Allen;
ii. providing Michael Allen's telephone number to Jaime Restrepo;
iii. the meeting in the park; and
iv. the private conversation between Jaime Restrepo and Michael Allen at the meeting in the park.
84According to the respondent, we should also not lose sight of the extent of the immunity provided to Ronnie Khananisho on the one hand, and the scope of his recantation on the other. The immunity agreement required truthful evidence in return for no prosecution for his involvement. No money. No relocation. No change of name. No witness protection. And the recantation was not comprehensive. Khananisho amplified his connections to the Restrepo group and trafficking in cocaine. His affidavit does not deny that Jaime Restrepo asked for help to "do something" to Mauricio Castro. And Khananisho confirmed the meeting in the park, the identity of the participants and the private conversations between individuals, albeit that he claimed that the meeting was for a different purpose. That said, within two weeks of the meeting, Mauricio Castro was dead.
85The respondent raises several concerns about Ronnie Khananisho's credibility and the reliability of his recantation. His flawed character. His inconsistent accounts. The implausibility of his claim that he was pressured by police and the Crown to provide an account that parroted their theory, given the objective facts of minimal police and Crown involvement and repeated admonitions to tell the truth. Not to mention a two-year gap between interviews.
86The respondent rejects the appellants' claim that the single question asked by the jury for a read-back of Khananisho's evidence demonstrated the significance of Khananisho's evidence to the determination of guilt. The jury's question supports no such conclusion. The defence position at trial was that no pre-murder meeting in the park occurred. The jury request sought a read-back, not of Ronnie Khananisho's evidence as a whole, but only that portion which related to the meeting in the park. No more. No less.
The Governing Principles
87The parties occupy common ground on the principles that control our decision on the admissibility of the proposed fresh evidence. Not surprisingly, they part company on the result the application of those principles should yield.
88Our authority to receive or admit further evidence on appeal is statutory. Section 683(1)(d) of the Criminal Code permits but does not require us to receive the evidence, if tendered, of any witness, including the appellant, who is a competent but not compellable witness.
89The "interests of justice", a phrase that signals a broad, yet not unbordered discretion, controls the admission of all evidence tendered for reception on appeal. Admission follows only after a context-sensitive inquiry into the totality of the circumstances: Truscott, at para. 81. Here, as elsewhere, the phrase "interests of justice" is not equivalent to the "interests of the accused", else Parliament would have said so. To be certain, the interests of an accused/appellant are an integral part of "the interest of justice". But beyond the interests of an accused/appellant in fully vindicating their appellate rights and pursuing their appellate remedies, the "interests of justice" also takes cognizance of the broader long-term interests of the administration of justice: R. v. S. (T.), 2012 ONCA 289, 284 C.C.C. (3d) 294, at para. 114; R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109, at para. 100; R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 44.
90The interests of justice are furthered when verdicts shown to be unreliable on the basis of fresh evidence are set aside. But those same interests – the interests of justice – would undoubtedly suffer if the appellate process were routinely invoked to rewrite the trial record several years later. Admitting fresh evidence on appeal necessarily undermines legitimate finality expectations. This negative consequence can only be justified if the overall integrity of the process is furthered by the reception of the fresh evidence. As a result, admitting further evidence on appeal of facts litigated at trial is, as it must be, exceptional: Snyder, at para. 44; R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at p. 411.
91Despite the breadth of discretion inherent in the phrase "in the interests of justice", the discretion is structured, bordered by well-established criteria felicitously expressed by McIntyre J. in Palmer, at p. 775 (internal citations omitted):
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
See also, R. v. Kassa, 2013 ONCA 140, 296 C.C.C. (3d) 353, at para. 92.
92The Palmer criteria embrace three components:
i. admissibility – whether the evidence is admissible under the governing rules of evidence;
ii. cogency – whether the evidence is sufficiently cogent that it could reasonably be expected to have affected the verdict at trial; and
iii. due diligence – any explanation offered for the failure to adduce the evidence at trial and whether that explanation should affect the admissibility of the evidence on appeal.
See, Truscott, at para. 92; Snyder, at para. 45.
93Among the components – admissibility under the governing rules of evidence, cogency and due diligence – the first two represent or are directed at the preconditions to the admissibility of the fresh evidence on appeal. On the other hand, due diligence is not a condition precedent to admissibility, and assumes importance only when the preconditions to reception – admissibility and cogency – have been met. The explanation advanced for the failure to adduce the evidence at trial, or sometimes the absence of an explanation, can result in excluding otherwise admissible evidence: Truscott, at para. 93.
94The cogency criterion requires answers to three questions. The first is whether the proposed evidence is relevant in that it bears upon a decisive or potentially decisive issue at trial. The second is whether the evidence is credible, in the sense that it is reasonably capable of belief. And the third is whether the evidence is sufficiently probative that, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result: Truscott, at para. 99.
95The cogency inquiry requires a qualitative assessment of the evidence proposed for admission on appeal. This evaluation must measure the probative potential of the fresh evidence considered in the context of the entirety of the evidence heard at trial and admitted on appeal. If the fresh evidence examined in this context could be reasonably be expected to have changed the result at trial, then the evidence is sufficiently cogent to justify admission on appeal: Truscott, at para. 100.
96The qualitative assessment integral to the admissibility inquiry demands a critical evaluation of the proffered evidence and the credibility of the witness who provides it. This evaluation includes an assessment of the purposes for which the evidence is admissible: Snyder, at para. 51.
97Sometimes, as here, the proposed fresh evidence involves a purported recantation of a witness' trial testimony. A recantation can be proffered or admitted for either or both of two purposes:
i. as substantive evidence; and/or
ii. as impeachment of trial testimony.
Where the recantation is proffered as substantive evidence, as for example to show that an appellant was not involved in the offence(s) of which he was convicted, the fresh evidence must be credible. However, where the fresh evidence is proffered to impeach the trial testimony of the recanting witness, the potential impeachment value of the fresh evidence is not dependent upon belief in its truth, and rather arises from its inconsistency with the trial testimony on a material issue: Snyder, at paras. 51-53.
98That said, where a purported recantation is tendered as fresh evidence to impeach the trial testimony of the witness, the credibility of the recantation is not irrelevant. To determine whether the recantation has sufficient impeachment value to warrant its admission as fresh evidence, the appellate court must of necessity determine what use a trier of fact could reasonably make of the recantation in assessing the credibility of that witness' trial testimony. And in that assessment the credibility of the recantation is relevant: Snyder, at para. 54.
99Where the proposed fresh evidence is a post-trial recantation of a witness' trial testimony, there is an urgent need for a particularly rigorous qualitative assessment. The finality of criminal verdicts would be all too ephemeral if they were to fall whenever an important trial witness chose to recant their trial testimony: Snyder, at para. 61; R. v. Babinski (1999), 1999 CanLII 3718 (ON CA), 135 C.C.C. (3d) 1 (Ont. C.A.), at para. 62.
100In combination, the context-sensitive nature of the inquiry into the totality of the circumstances and the broad discretion inherent in the "interests of justice" standard belie a role for an exhaustive list of factors in assessing the credibility of a recantation. That said, some examples of potentially relevant factors include:
i. the witness' explanation of why he or she testified as he or she did at trial;
ii. an explanation of what prompted the witness to change his or her evidence, for example, duress, sympathy, inducements or desire to tell the truth;
iii. other relevant circumstances surrounding the recantation;
iv. whether the witness has recanted under oath or its equivalent;
v. the witness' reputation for truthfulness; and
vi. any facts, discovered after trial, which might have motivated the witness to fabricate evidence at trial.
See, M.G.T., at para. 111.
101In a similar way, other factors may facilitate an assessment of whether fresh evidence of a recantation could reasonably have been expected to have affected the result at trial. As for example:
i. how directly the evidence relates to the positions of the parties at trial and the disputed elements of the offence(s) in question;
ii. whether there is a compelling case against the appellant apart from evidence of the recanting witness; and
iii. where the recantation is proposed for impeachment purposes, whether the alleged unreliability of the witness was already before the trial court.
See, M.G.T., at para. 112.
102In the end, the overriding standard is "the interests of justice", a benchmark that requires us to examine not only the substance of the recantation, but also its genesis: Kassa, at para. 97.
The Principles Applied
103As I will explain, I would not admit the proposed fresh evidence because it fails to satisfy the cogency requirement essential to its admissibility.
104To begin, as a recantation of trial testimony, the proposed evidence satisfies the admissibility requirement and the due diligence inquiry.
105The rules of admissibility permit reception of evidence which, in substance, tends to show that the appellants were not involved in the commission of the offence of which they were convicted. Recantation evidence is also admissible as a statement inconsistent with the recanting witness' testimony at trial, thus impeaching the reliability of the trial testimony implicating the appellants.
106The explanation for the failure to produce the recantation at trial is self-evident. The recantation only came into existence years after the trial. This responds to the due diligence inquiry.
107Some features of the recantation give it probative value. Unlike many, for example, Ronnie Khananisho has not recanted his recantation. As in many, if not most recantation cases, Khananisho acknowledged that his admission that he lied at trial may render him vulnerable to a prosecution for perjury, although this seems unlikely if for no reason other than the passage of time. In addition, the evidence relates to the single live issue at trial – the appellants' complicity in the murder of Mauricio Castro.
108But, as is well known and firmly established by authoritative precedent, the potential probative value of proposed fresh evidence on its own falls short of what is required to warrant its reception on appeal. We must assess the potential value of that evidence more holistically. And that assessment, which is of necessity qualitative, demands a careful evaluation of the proposed evidence, viewed in light of the trial evidence and the credibility of the witness whose evidence is put forward. We do not of course attempt to determine the ultimate credibility of the recanter or the reliability of the evidence, but only to determine whether what is proposed for admission is sufficiently cogent to warrant admission on appeal.
109In my view, Khananisho's recantation suffers from serious credibility issues and could not reasonably be expected to have affected the trial verdict.
110To take first, the origins of the recantation.
111The recantation did not emerge on its own, as for example, by Ronnie Khananisho coming forward and acknowledging that he gave false evidence under oath at trial. The recantation had its genesis in a visit by Emily Huard to Khananisho's place of business, allegedly for totally unrelated reasons. Emily Huard was Michael Allen's former girlfriend, the mother of his child. She admitted to frequent telephone contact with Allen, who was then and is now in custody serving a life sentence for first degree murder. Huard's visit took place years after the appellants' trial.
112During an unrelated conversation, Huard raised the subject of Khananisho's recantation about which she had heard at an unspecified time and place from a man, "Luke", whose last name or other details she did not know. According to Emily Huard, Ronnie Khananisho told her to tell Michael Allen that he was willing to recant.
113In this context, it is helpful to recall Khananisho's attitude towards implicating others in the commission of an offence. In his police interviews, he wanted to leave the station without implicating anybody. He would not have testified at trial had he not been subpoenaed and was, at best, an uncooperative witness.
114It is also clear that even after the alleged conversation with Emily Huard, Ronnie Khananisho did nothing to come forward with his concerns.
115Also relevant to a determination of the credibility of Ronnie Khananisho's recantation is his explanation for his trial testimony. He was aware, he said, from his brother's police interview about the police theory of the case, and the roles played by each of the participants. And so, he learned what to say to avoid the threatened charge of conspiracy to commit murder. The police frequently showed up at his home and place of work, he said, to enlist his assistance and reinforce the need for him to cooperate. Even his lawyer seemed to be working for the police and the Crown.
116There is substantial reason to doubt the veracity of at least some of these claims by Ronnie Khananisho. His "reputation for truthfulness" at this stage of proceedings is suspect, to put it mildly: M.G.T., at para. 111. His claims about his interactions with the police were absent from his recantation affidavit, raised for the first time in cross-examination, and squarely contradicted by Inspector Ottaway's responding affidavit. His allegations that his counsel may have been working for the police and Crown are far-fetched, belied by his interactions with his lawyer before and during trial proceedings, and similarly contradicted by Inspector Ottaway's evidence.
117Although this might not be a case in which we can say that the recantation is completely incredible, it is not without its serious flaws. Its implausible origins. Khananisho's earlier statement history. The unexplained attendance of appellate counsel. The 30 month gap in swearing the affidavit. Khananisho's attitude towards implicating others.
118I acknowledge that a recantation may have probative value – for example, as an impeachment tool – even if doubts exist about its credibility. But in this case, the cogency of Khananisho's recantation – which is already beset by credibility concerns – is further and irredeemably diminished when viewed in light of the Crown's case at trial. A critical component of the cogency inquiry is whether the proposed evidence is sufficiently probative that, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the verdict. On this issue, the recantation evidence falls well short of the mark.
119First, the testimony of Ronnie Khananisho did not occupy a central role in the proof of the appellants' guilt. The central witnesses in this case were Jorge Restrepo and Jorge Acosta. Each played an essential role in the murder plot and in its execution. Their testimony was corroborated by unimpeachable evidence including cellphone records depicting usage and locations, medical evidence about the number of shots and their location, and other evidence.
120Second, Ronnie Khananisho did not provide any unique inculpatory evidence. He said nothing of importance that did not emerge otherwise from Jorge Restrepo and Acosta's evidence. And, as noted earlier, the accounts of those two witnesses were confirmed by powerful independent evidence, including cellphone records and medical evidence. Instructively, Crown counsel placed significantly greater reliance in his closing address on the corroborative value of the cellphone records than on the value of Khananisho's testimony.
121Third, Khananisho's unwillingness to testify, and in particular, to give any evidence that would incriminate anybody on trial, was on full display for all to see. Crown counsel had to repeatedly remind Khananisho about the statements he had previously given to the police. Defence counsel fully explored Khananisho's weaknesses as a witness, both in closing and through cross-examination. The trial judge's charge to the jury described Khananisho's reluctance to testify at length, including in the following passage:
He was so petrified, ladies and gentlemen, that if he was in the dentist's chair, his teeth would never have come out with an extracting tool. That is how petrified he was when he was asked questions … To say he was a reluctant witness is to state it moderately. He certainly was reluctant, he did not want to be here. If he had jets in his shoes, he would have been out that door as fast as anybody ever heard of. He would have broken every record, 100 world dash to get out of here.
122I conclude, as did Doherty J.A. in Snyder, at p. 775, with the admonition of McIntyre J. in Palmer at p. 775, also a case of recantation:
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.
123In my view, the recantation approaches the point of being incredible and unworthy of belief. At all events, I am satisfied that the recantation could not reasonably be expected to affect the assessment of the reliability of Khananisho's testimony at trial or the verdict of the jury. For these reasons, the proposed fresh evidence lacks cogency and does not survive the "strict scrutiny" to which it must be subject: Snyder, at paras. 61, 63. The admission of the evidence would not further the interests of justice.
Conclusion
124I would not admit the proposed fresh evidence and would confirm the decision of the prior panel of this court dismissing the appeal.
Released: May 31, 2018
"David Watt J.A." "I agree. C.W. Hourigan J.A."
"I agree. B.W. Miller J.A."
1As for example in s. 591(3).
