WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Court of Appeal for Ontario
Date: 2017-09-22
Docket: C60364
Judges: Watt, Benotto and Roberts JJ.A.
Between
Her Majesty the Queen
Respondent
and
M.G.T.
Appellant
Counsel:
- Michael W. Lacy, for the appellant
- Luke Schwalm, for the respondent
Heard: June 29, 2017
On appeal from the conviction entered on September 23, 2013 by Justice Ian B. Cowan of the Ontario Court of Justice.
Reasons for Decision
Watt J.A.:
Introduction
[1] In May, 2013, a family home was in turmoil.
[2] M.G.T. thought his wife was unfaithful.
[3] His wife thought he was paranoid. She was making arrangements to leave him.
[4] M.G.T.'s friend K.C. had lived in the family home for several months. M.G.T. ordered him to leave by the end of the week.
[5] Then things got worse.
[6] K.C. called 911 to report an assault at the family home. He said M.G.T. was "beating on his wife", like he had the night before. The police responded. They charged M.G.T. with assault, sexual assault and unlawful confinement, and took him into custody.
[7] The wife testified at her husband's trial. So did K.C. The judge said that K.C.'s testimony confirmed parts of the wife's account of what had happened.
[8] The trial judge found M.G.T. guilty of sexual assault and entered stays on the counts of assault and unlawful confinement.
[9] After conviction but prior to sentence, M.G.T.'s brother, J.T., claimed that K.C. had confessed to fabricating his testimony at trial. According to J.T., K.C. told J.G. that he (K.C.) had lied to the police. J.G. relayed this information to J.T. J.T. then called K.C., who told J.T. that "this whole thing was planned".
[10] Trial counsel for M.G.T. asked the judge to allow the defence to re-open its case based on the contents of J.T.'s affidavit. Trial counsel wanted the trial judge to call K.C. as a witness so that he could be cross-examined about his comments to J.T. and the truthfulness of his testimony at trial.
[11] The trial judge dismissed the application to re-open the defence case, affirmed the conviction he had previously entered and continued with sentencing proceedings.
[12] M.G.T. appeals. He says the judge erred in refusing the re-opening request. He also seeks leave to introduce as fresh evidence another alleged recantation by K.C. of his trial testimony and the transcript of K.C.'s 911 call, which had not been disclosed prior to or at trial.
[13] These reasons explain why I would not accede to the claim of error in refusing re-opening, reject the application to introduce fresh evidence and, in the result, dismiss the appeal.
The Background Facts
[14] To begin, it is helpful to canvass briefly the principals, their relationship, the events underpinning the conviction under appeal, the circumstances giving rise to the application to re-open the defence case and the trial judge's reasons for dismissing that application.
The Principals and their Relationship
[15] M.G.T. and his wife had been married for 17 years. They lived in the family home with their three children and M.G.T.'s father. M.G.T.'s friend K.C. had been living with the other family members for several months.
[16] M.G.T. and his wife were having problems in their marriage. M.G.T. used crack cocaine. He suspected his wife of infidelity. His wife thought that he was paranoid. She was actively planning to leave the marriage. She had contacted a social worker and was awaiting a vacancy at a shelter near the family home so that her children did not have to change schools.
The Early Evening of May 26, 2013
[17] When M.G.T.'s wife returned home from work in the early evening of May 26, 2013, she found M.G.T. and K.C. drinking and smoking in their home. M.G.T. appeared to be under the influence of crack cocaine.
[18] M.G.T. testified that on this evening he told K.C. to leave the family home by the end of the week. He considered K.C. a bad influence on his children.
The Relevant Events
[19] According to his wife, M.G.T. came into their bedroom and told her that he wanted her out of the house by the end of the week. He then demanded sex. She refused his request because he was high on crack. M.G.T. forced sexual intercourse on her despite her lack of consent, called her names, assaulted her and prevented her from leaving their bedroom.
[20] M.G.T. testified that he entered the bedroom he shared with his wife and asked her for sex. She agreed. As he began to have sexual intercourse with his wife, he did not like what he was feeling. He stopped having intercourse and sat up in bed. They argued about her cheating. His wife pretended that she was crying.
[21] K.C. acknowledged that he had smoked crack earlier in the evening. He admitted that M.G.T. had told him to leave the house by the end of the week.
[22] K.C. testified that he called 911 because he heard sounds of "smacking" coming from the couple's bedroom. He heard three smacks, but could not say who was smacking whom. He denied the suggestion that he was looking for a reason to call the police because M.G.T. had told him to leave by week's end and he had no place to go. He similarly rejected counsel's suggestion that he made the 911 call by pre-arrangement with M.G.T.'s wife.
The Reasons for Judgment
[23] On September 23, 2013, the trial judge found M.G.T. guilty of assault, sexual assault and unlawful confinement of his wife. The judge recorded a conviction for sexual assault and stayed the other findings of guilt on the basis of Kienapple v. The Queen, [1975] 1 S.C.R. 729.
[24] The trial judge founded his conclusion of guilt on the basis of the testimony of M.G.T.'s wife about events that took place in the bedroom. The judge unequivocally rejected M.G.T.'s version of events.
[25] In connection with the testimony of K.C., the trial judge accepted K.C.'s denial of any plan with M.G.T.'s wife to get M.G.T. out of the house. In the penultimate paragraph of his reasons, the trial judge described the role that K.C.'s evidence played in his findings of guilt:
I do believe [the wife] when she told the court that she went to their bedroom fully clothed and that when her husband said he wanted to have sex with her she said, "no." I also believe that she physically resisted by kicking and pushing him when he tried to get on top of her and removed her pants and panties and that she told him, in no uncertain terms, that she did not want to have sex. I accept her evidence that when she tried to leave the room he blocked her, albeit briefly. I also find that the Crown has proven beyond a reasonable doubt that he slapped her on at least one occasion with an open hand during this time in the bedroom. This evidence is corroborated somewhat by the evidence of [K.C.] who heard what he thought were three slaps but I find that this assault by slapping was part of the sexual assault. It was an ongoing event, as was his blocking her from leaving the room. These two charges of unlawful confinement and assault simplicitor are stayed as being subsumed by the sexual assault charge. [Emphasis added.]
The Application to Re-open
[26] On December 3, 2013, a date on which sentencing proceedings were to begin, trial counsel for M.G.T. made an application to re-open the defence case. In the event that the trial judge were to permit re-opening, counsel asked the judge to subpoena K.C. to testify.
[27] In support of the application, trial counsel filed two affidavits: one from M.G.T. and the second from M.G.T.'s brother, J.T.
[28] In his affidavit, M.G.T. swore that his brother, J.T., told him that he, J.T., contacted K.C. on October 29, 2013. According to J.T., as related by M.G.T., K.C. told J.T. that his (K.C.'s) evidence at trial was not the truth.
[29] J.T. deposed that he telephoned J.G. who told him (J.T.) about a car ride with K.C. sometime in July, 2013. According to J.T., J.G. told him that K.C. told him (J.G.) that he (K.C.) had lied to the police. The same evening, J.T. called K.C. who told J.T. "that this whole thing was planned". K.C. then abruptly stopped talking. He told J.T. that he (K.C.) would say no more unless "the court subpoenaed him", then expressed a fear that he would end up in jail for having lied at trial. K.C. begged off an arranged meeting with J.T. and the men did not speak again.
The Ruling of the Trial Judge
[30] The trial judge dismissed the application to re-open the defence case, thus did not reach the request for issuance of a subpoena for K.C.
[31] The trial judge noted that the information J.T. claimed to have received from J.G. recounted an admission by K.C. that he had lied to the police. The conversation allegedly had occurred in July, 2013, about two months in advance of trial. Tendered for its truth through the affidavit of J.T., what K.C. allegedly said to J.G. was inadmissible double hearsay, although the fact of the conversation explained why J.T. spoke to K.C.
[32] According to the trial judge, the affidavit of J.T. posed hearsay problems, but more importantly it reported on an alleged conversation that was entirely devoid of context, thus fell short of what was required to invoke the discretion to re-open.
The Grounds of Appeal
[33] M.G.T. ("the appellant") advances two grounds of appeal. First, he alleges an error in the trial judge's conduct of the trial. Second, he seeks leave to introduce fresh evidence on two discrete but related issues.
[34] Insofar as trial proceedings are concerned, the appellant says that the trial judge erred in failing to permit the defence to re-open its case to adduce evidence from K.C. about his alleged recantation of his trial testimony.
[35] With respect to fresh evidence, the appellant seeks leave to introduce the evidence of K.C.'s brother, J.C., concerning K.C.'s subsequent recantation of what he said about the appellant's assault of his wife on May 27, 2013. He also seeks leave to introduce the 911 call K.C. made to police reporting the assault, which the Crown had not disclosed and the defence had not requested before or during the appellant's trial.
Ground #1: The Application to Re-open the Defence Case
[36] The first ground of appeal challenges the correctness of the trial judge's decision to refuse to permit defence counsel to re-open the defence case after conviction but prior to sentence.
[37] In earlier paragraphs of these reasons, I have described the circumstances in which the application was advanced and summarized the trial judge's reasons for dismissing it. Nothing will be gained by their repetition here. That said, some aspects of the application are worth emphasis.
[38] First, the remedy sought. In the event of success on the application to re-open the defence case, defence counsel asked the trial judge to call K.C. as a witness. Counsel later revised his request to have the judge issue a subpoena to compel K.C.'s attendance.
[39] Second, the evidentiary basis on which the application was grounded. Trial counsel relied on two affidavits: one from M.G.T. and a second from his brother, J.T. Each reported what the affiant alleged K.C. had said to them or to others. J.T. swore that J.G. claimed that in July, 2013, K.C. had told him (J.G.) that he (K.C.) "lied to the police." J.T. said that in October, 2013, K.C. had told him that "this whole thing was planned". J.G. did not file an affidavit. J.T. offered no further details.
[40] Trial counsel did not subpoena K.C. He called no viva voce testimony on the application. Counsel did indicate that K.C. was scheduled to be at the courthouse the following day, but did not suggest an adjournment to permit an interview or service of a subpoena on him.
The Arguments on Appeal
[41] The appellant begins with a reminder that the testimony of K.C. was a crucial component of the trial judge's analysis leading to findings of guilt. It furnished confirmation of the complainant's version of events, in particular, their non-consensual nature. It follows, the appellant says, that anything that shows or tends to show that K.C.'s evidence was contrived, part of a plan or pact with the complainant, would deal a serious, if not fatal blow, not only to K.C.'s credibility and the reliability of his evidence, but also to the testimony of the complainant.
[42] According to the appellant, the trial judge misapprehended the nature of the evidence trial counsel offered on the application and also erred in his application of the test for re-opening. The proposed evidence is material and admissible as original evidence that K.C. had perjured himself at the appellant's trial. The evidence was not barred by the hearsay rule or any other rule of admissibility. The proposed evidence was credible since the same admission had been made to two different people. It was relevant in that it tended to impeach the reliability of testimony that the trial judge considered to corroborate the complainant's version of events. It could not have been obtained in advance of trial because K.C.'s alleged recantation only emerged after the appellant's conviction.
[43] The respondent sees things differently. The trial judge, the respondent says, applied the proper test, did not misapprehend any evidence and reached a reasonable conclusion on the issue. His decision is entitled to deference.
[44] The respondent contends that the standard to be applied when the defence seeks leave to re-open its case post-verdict is, as it should be, a rigorous test not easily met. The appellant must meet the requirements for the admission of fresh evidence on appeal set out in Palmer v. The Queen, [1980] 1 S.C.R. 759. And, further, the judge must consider whether the application to re-open is in reality an attempt to reverse a tactical decision made at trial.
[45] In this case, the respondent continues, the trial judge was limited in his determination of the application to the affidavits of M.G.T. and J.T. The affidavit of J.T. lacks any meaningful context for the discussion between K.C. and J.G. It cannot be admitted for its truth since it fails to satisfy the requirements for the exceptional admission of hearsay. What is more, the appellant failed to provide any first-hand information from K.C. himself or offer any explanation for his failure to do so.
The Governing Principles
[46] Despite the comparative infrequency with which applications to re-open the defence case after conviction occur, the principles that govern these applications are well-settled. In this case, the parties are ad idem on the principles, but differ on the result that should follow from their application.
[47] The test for re-opening the defence case after findings of guilt have been made and convictions recorded is more rigorous than that which governs the same application made prior to an adjudication of guilt. This is so because a more exacting standard is required to protect the integrity of the criminal trial process, including the enhanced interest in finality: R. v. Kowall, 108 C.C.C. (3d) 481, (Ont. C.A.), at para. 31.
[48] The criteria to be met to determine the admissibility of fresh evidence on appeal provide helpful guidance to judges faced with an application to re-open the defence case after an adjudication of guilt has been made. The test is familiar:
(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: see McMartin v. The Queen, [1964] S.C.R. 484.
(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.
[49] The Palmer factors requiring consideration on applications to introduce fresh evidence on appeal, incorporated by reference on post-verdict applications to re-open, may be summarized as:
i. admissibility; ii. cogency; and iii. due diligence.
See Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92.
[50] The admissibility and cogency requirements drawn from Palmer ensure that evidence proposed for reception on a post-conviction application to re-open:
i. relates to a decisive or potentially decisive issue at trial; ii. is reasonably capable of belief; iii. is probative of the fact the party seeks to establish by its introduction; and iv. is admissible under the prevailing rules of evidence.
[51] The admissibility requirement ensures that the exceptional remedy of re-opening is permitted only where the evidence proposed for reception is itself compliant with the rules governing admissibility. It would be pointless to allow re-opening only to exclude the evidence tendered for reception on the basis that it offended an admissibility rule. Such evidence could exert no influence on the determination of any decisive or potentially decisive issue at trial: see Truscott (Re), 213 C.C.C. (3d) 183 (Ont. C.A.), at para. 21.
[52] The cogency requirement commands a qualitative assessment of the evidence proffered on the application to re-open. This qualitative assessment begins with an identification of the purpose or purposes for which the evidence is proposed for admission. This involves an assessment of the potential (but not the actual) value of the evidence, considered in the context of the evidence adduced at trial that underpins the finding the party seeks to impeach: Truscott (2007), at para. 100. In this way, it can be determined whether the evidence is sufficiently cogent to warrant its admission. The trial judge should carefully evaluate the proposed evidence and the credibility of its source: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 50. However, no effort should be expended to determine the ultimate reliability of the evidence or the ultimate credibility of the witness whose evidence is tendered: Snyder, at paras. 50-51.
[53] Evidence of a trial witness' (later) recantation may be admissible for more than one purpose. As an out-of-court statement inconsistent with the witness' trial testimony on a material issue, it can be put to that witness to challenge his or her credibility and test the reliability of his or her evidence: Snyder, at para. 52; R. v. B. (K.G.), [1993] 1 S.C.R. 740, at pp. 755-756. Depending upon its content, the statement may also be received as substantive evidence that an offence did not occur or that an accused was not involved in its commission: Snyder, at para. 51.
[54] Where the evidence proposed for admission on an application to re-open after verdict is a post-verdict recantation of a witness' trial testimony, both trial and reviewing courts should undertake a particularly rigorous qualitative assessment of the evidence of the recantation. This is especially so in cases of simple, unexplained recantations, because of the ease with which they can be fabricated. Too ready or uncritical admission of such recantations would put at risk the finality of verdicts each time a witness had second thoughts: Snyder, at para. 61; R. v. Babinski, 44 O.R. (3d) 695 (C.A.), at para. 62.
[55] A trial judge's decision on post-verdict re-opening of the defence case involves the exercise of judicial discretion. Where that discretion has been exercised in accordance with the governing legal principles, is unencumbered by any material misapprehension of evidence and is not unreasonable, it is entitled to significant deference on appeal: R. v. Kippax, 2011 ONCA 766, [2011] O.J. No. 5494, at para. 64.
[56] Two further points are worthy of consideration.
[57] The first has to do with the importance of context in assessing the relevance, admissibility and cogency of evidence. Without proper context it may be difficult, sometimes impossible, to tease out the meaning of words allegedly spoken. See, for example, R. v. Ferris, 1994 ABCA 20, 27 C.R. (4th) 141, at para. 30, affirmed , [1994] 3 S.C.R. 756, at para. 1; R. v. Hunter, 54 O.R. (3d) 695 (C.A.), at para. 21.
[58] A final point concerns the authority of trial judges to call witnesses. The discretion of a trial judge to call evidence is undoubtedly a broad discretion. That said, there is nothing inherently unfair about requiring a party to tender the evidence on which that party wishes to rely. A trial judge should not exercise his or her discretionary authority to call witnesses in order to maintain or to provide a party with a tactical advantage: R. v. Finta, 73 C.C.C. (3d) 65 (Ont. C.A.), at pp. 205-206, affirmed , [1994] 1 S.C.R. 701.
The Principles Applied
[59] For the brief reasons that follow, I would not give effect to this ground of appeal. The trial judge was cognizant of the test to be applied on a post-verdict application to re-open the defence case. His reasons disclose no error in principle or misapprehension of any material evidence. Nor is his decision to dismiss the application unreasonable.
[60] At the outset, it is helpful to call to mind not only the remedy the appellant sought on the application, but also the materials upon which he relied.
[61] The appellant sought two orders from the trial judge:
i. an order permitting the defence to re-open its case on the basis of post-verdict recantations by K.C. of his evidence at trial; and ii. an order, later varied to issuance of a subpoena, that the trial judge call K.C. as a witness on the re-opening.
[62] The evidentiary foundation placed before the trial judge on the application consisted of two affidavits:
i. the affidavit of the appellant describing a conversation he had with his brother, recounting a conversation his brother had with K.C., in which his brother claimed K.C. said his evidence at trial was not the truth; and ii. the affidavit of the appellant's brother, J.T., recounting a conversation J.T. had with J.G. before the trial, in which J.G. claimed K.C. told him that he (K.C.) lied to police, and a post-conviction conversation J.T. had with K.C. in which K.C. explained "this whole thing was planned", then clammed up.
[63] What the trial judge did not have was any indication from J.G. about how it was this initial conversation with K.C. came to occur during a drive in July 2013 and on the nature of the relationship between J.G. and J.T. Equally sparse is the evidence about any efforts to locate, interview or serve a subpoena on K.C., despite earlier contacts with him and knowledge of his impending court appearance.
[64] Both affidavits tendered on the re-opening application are fraught with issues about admissibility.
[65] To the extent that they were tendered as proof of the truth of an assertion by K.C. that he "lied to the police" or "this whole thing was planned", they cannot escape the exclusionary grip of the hearsay rule. Not on the basis of any listed exception, nor under the principled approach.
[66] To the extent that the affidavits were tendered to prove the mere fact that K.C. said he lied, they lack context to assign them meaning. In the absence of meaning, they lack relevance.
[67] Even though the affidavits were tendered on an application for re-opening for the limited purpose of impeaching the credibility of K.C.'s trial evidence, the trial judge and this court are obliged to consider the credibility of the evidence. As in Snyder, the triggering recantation to J.G. – K.C. "lied to the police" – emerged fully grown out of nowhere. A car ride in July. No context provided. Apart from his name, we know nothing of J.G. On the credibility meter, J.T.'s report fares no better. Neither constitutes a basis on which to re-open the defence case after conviction.
Ground #2: The Fresh Evidence Ground
[68] The second ground of appeal is related to, but discrete from the first.
[69] The appellant invokes our authority to receive further evidence on appeal and seeks leave to introduce two items of evidence that were not available and thus not tendered for admission at trial. Each has to do with the testimony of K.C. in one way or another.
[70] Proposed for reception as fresh evidence are:
i. the affidavit and subsequent cross-examination of K.C.'s brother, J.C., describing an alleged post-verdict recantation by K.C. of the evidence he gave at the appellant's trial; and ii. the recording and transcript of K.C.'s 911 call on May 27, 2013, reporting the appellant's assault on his wife.
[71] Some further background will provide the context essential for an understanding of this ground of appeal.
The Recantation Evidence
[72] J.C. is K.C.'s brother. For nearly three decades he has worked for a company owned by the appellant's brother, N.T. He has known the appellant for more than a quarter century. Although the business was recently sold, J.C. retains ties to the appellant's family.
The Alleged Recantation
[73] According to J.C., K.C. came to his home on December 28, 2013. K.C. brought a case of 24 beers along with him. Both men drank some beer. K.C. appeared to be "lost in thought." J.C. asked him what was wrong.
[74] As J.C. recounted it, K.C. said he was upset because he had made a big mistake by doing what he did to M.G.T. M.G.T.'s wife had "made him do a set-up." She would get M.G.T. going. When she started to scream, K.C. was to call the police. K.C. heard them arguing in the bedroom and called the police. He told the operator – as M.G.T.'s wife had asked him to do – that he heard M.G.T. hit his wife.
[75] J.C. said that his brother told him that the truth was that, although he had heard shouting, he did not hear the appellant strike his wife and lied about having heard three blows struck. K.C. explained that M.G.T.'s wife cashed his work cheques so that K.C. could continue to collect employment insurance benefits while working.
[76] In cross-examination, J.C. acknowledged that he saw his brother every other weekend over the relevant months, but that it was only on the one occasion – December 28, 2013 – that K.C. spoke about his evidence at the appellant's trial. The conversation occurred after J.C. had told K.C. that he (J.C.) was upset about K.C.'s involvement in M.G.T.'s case. K.C. did not provide any details about the shouting he heard. J.C. had about five beers over the six hours K.C. was at his home. K.C. could have drunk more beer than J.C. was aware and could have taken some drugs before arriving at J.C.'s home. J.C. did not know that both M.G.T. and K.C. had taken drugs and were drinking beer together on the night of the alleged assault.
[77] J.C. conceded that he never spoke to the appellant about K.C.'s disclosure. He said nothing to the appellant's brother N.T. for about a year after K.C.'s visit. J.C. acknowledged that he didn't have a good memory of his conversation with K.C. when he was cross-examined 32 months later.
The Death of K.C.
[78] On January 10, 2014, about two weeks after the alleged recantation to J.C., K.C. died by suicide.
The Disclosure of the Recantation
[79] In his affidavit, J.C. swore that the first time he spoke to anybody regarding K.C.'s disclosure about his evidence at the appellant's trial was on February 9, 2015, when he received a telephone call from a lawyer in the office of appellate counsel. The lawyer asked whether J.C. had spoken to K.C. about the appellant's conviction and sought the details of their conversation.
[80] In cross-examination, J.C. acknowledged that he had spoken to the appellant's older brother, N.T., about his conversation with K.C. J.C. signed his affidavit on February 24, 2015, about 14 months after he had spoken to K.C. about his trial evidence. He was cross-examined on his affidavit 32 months after the conversation, and 18 months after he had sworn it. J.C. admitted that it was not a priority for him to recall everything that was said in his conversation with his brother. He did not have a good memory of their discussion. He accepted that the delay in completing the cross-examination could have been due to him having second thoughts about it, but he also claimed that work commitments made it difficult for him to attend.
The 911 Call
[81] In the course of responding to the fresh evidence application, counsel for the respondent obtained a copy of K.C.'s 911 call. This was disclosed to counsel for the appellant, who arranged for its transcription.
[82] It is common ground that, although the 911 call was referred to in the notes of a police officer who responded to the call and testified at trial, a copy of the recording was not provided to defence counsel as part of the initial Crown disclosure. Nor was it requested by defence counsel before or during the trial. In the result, neither trial counsel had a copy of the 911 call at trial.
[83] Counsel agree that the failure to disclose the 911 call was the result of a policy in the Crown Attorney's Office in Peel Region. 911 calls were not included in initial disclosure. During the case management phase of proceedings, 911 calls would only be provided if either the Crown or defence requested it. To implement the request, the Crown would contact the Central Disclosure Unit of the Peel Regional Police, who would provide a copy for the Crown. The Crown would, in turn, disclose it to defence counsel.
[84] During the 911 call, K.C. never disclosed his name to the 911 operator, although he described his location in the house from which he was calling. He insisted on remaining anonymous and resisted the operator's efforts to obtain more information from him and to keep him on the line. He described the husband as "liquored up" and explained that the same thing had happened two days in a row. K.C. told the operator that the husband had "pretty much raped [the wife]" on the previous night, and that he was "beating on his wife" and "smacking her around". The "smacking" had stopped as the 911 call continued, replaced by quiet.
The Arguments on Appeal
[85] The appellant advocates the reception of the evidence of J.C. and argues that it requires that we order a new trial.
[86] The appellant says the evidence of J.C. satisfies the admissibility and cogency requirements under Palmer. Further, it could not have been obtained by the exercise of due diligence at trial, since the conversation did not occur until a couple of weeks after the sentence had been imposed.
[87] According to the appellant, if K.C. were alive, he could be cross-examined on what he said to his brother. This evidence could be used to impeach his credibility, since it amounted to a statement inconsistent with his trial testimony on a material issue. It could also be used as substantive evidence to exculpate the appellant, since it tended to show that what was alleged to have occurred simply did not take place.
[88] The appellant says that the hearsay rule erects no bar to admissibility because, tendered through the recipient, what K.C. said would be admitted for its truth under both a listed and the principled exception to the hearsay rule. The necessity requirement is met by the death of the declarant. Reliability is established by the absence of any motive to lie and confirmation by similar admissions made to others. And, as hearsay tendered by the defence, the rigours of the exclusionary rule are tempered by the need to prevent an injustice.
[89] The cogency requirement is also satisfied according to the appellant. The evidence is reliable and can reasonably be expected, if given together with the evidence received at trial, to have affected the verdict.
[90] Turning to the 911 call, the appellant says that the call should have been disclosed in advance of trial. After all, it is presumptively first party disclosure. The failure of defence counsel to request it is irrelevant for fresh evidence purposes. The substance of the call, the appellant contends, is suggestive of the set-up plan put to K.C. in cross-examination at trial. The request for anonymity. The account of the husband "beating on his wife" from which K.C. retreated at trial. Denial of this valuable impeachment tool restricted the scope of impeachment available to the appellant and warrants a new trial.
[91] The respondent resists both aspects of this ground of appeal.
[92] Turning first to the evidence of J.C., the respondent contends that what is proposed for admission fails to pass muster on either ground on which the case for admissibility is advanced.
[93] Impeachment of a witness on the basis of an inconsistent statement about subject-matter of which the witness has previously testified, or on the ground of bias, interest or corruption, requires the presence of the witness who is to be confronted with these allegations. The death of K.C. makes this impossible. There can be no confrontation for want of the witness to be confronted.
[94] As substantive evidence, the respondent says, the evidence of J.C. cannot surmount the barrier erected by the hearsay rule. No listed exception can be summoned. And the proposed evidence cannot satisfy the reliability requirement under the principled approach on either a substantive or procedural basis. The discussion was not recorded. It was not under oath. The context in which it occurred is unclear. Both the declarant and the proposed witness were drinking. There are also significant credibility problems with the proposed witness.
[95] Even if the proposed evidence were to satisfy the admissibility requirement of Palmer, the respondent says it should be rejected for want of cogency. K.C.'s testimony was a relatively minor player in the proof of guilt. It follows, according to the respondent, that any evidence that has an impact on his credibility cannot reasonably be expected to have affected the verdict. In addition, J.C.'s evidence is itself unreliable. Internally inconsistent, the product of faulty recollection and lacking detail.
[96] As for the 911 call, the respondent accepts that its disclosure is governed by R. v. Stinchcombe, [1991] 3 S.C.R. 326, an obligation that cannot be trumped by the policy of the local Crown Attorney's office. However, in the end, the Crown's failure to disclose it did not impair the appellant's right to make full answer and defence. There is no reasonable possibility that the disclosure failure affected either the outcome or the fairness of the appellant's trial.
[97] The respondent points out that, for the most part at least, the 911 call confirms K.C.'s trial evidence. Nothing that he said to the operator is suggestive of any pre-concert with the complainant and some of his comments belie any such conspiracy. As for trial fairness, what tells most against any claim of harm is the failure of trial counsel to seek and pursue disclosure of the 911 call. Trial counsel was aware of the 911 call, not only from the testimony of K.C. at trial, but also from the disclosed notes and trial testimony of the responding police officer.
[98] It is a reasonable inference, the respondent says, that trial counsel made a strategic decision not to pursue disclosure of the 911 call, thus it cannot be said that the failure to disclose it affected the fairness of the trial.
The Governing Principles
[99] The principles that inform our decision in connection with this ground of appeal relate to two issues. The first has to do with the circumstances in which we may admit evidence of a post-verdict recantation by a witness who testified at trial. The second concerns the authority to interfere with a verdict rendered at trial because of the failure of the Crown to honour its disclosure obligations.
The Admissibility of Fresh Evidence
[100] Section 683(1) of the Criminal Code accords appellate courts a broad discretion to receive fresh evidence when the court considers it in the interests of justice to do so. When fresh evidence is proposed for admission on appeal the court must undertake a context-sensitive inquiry, taking cognizance of all the circumstances of the case. This encompasses not only the appellant's interests in fully pursuing his appellate remedies, but also the broader, long-term interests of the administration of justice: R. v. T.S., 2012 ONCA 289, 284 C.C.C. (3d) 394, at para. 114; Snyder, at para. 44; Truscott (2007), at para. 81.
[101] To engage our discretion to receive further evidence on appeal requires us to answer three questions:
i. Is the proposed evidence admissible under the rules of evidence applicable to criminal trials? [the admissibility requirement] ii. Is the evidence sufficiently cogent that it could reasonably be expected to have affected the verdict rendered at trial? [the cogency requirement] iii. What explanation is offered for the failure to produce the evidence at trial and how should that explanation affect its admissibility on appeal? [the due diligence inquiry].
See T.S., at para. 115; Truscott (2007), at para. 92; Snyder, at para. 45. See also Palmer, at p. 775.
[102] The cogency requirement obliges an appellate court to ask and respond to three questions:
• Is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial? • Is the evidence credible in that it is reasonably capable of belief? • Is the evidence sufficiently probative that, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result?
See T.S., at para. 118; Truscott (2007), at para. 99.
[103] The cogency requirement directs us to weigh, to some extent, the potential (but not the actual) probative value of the proposed evidence. It necessarily follows that this weighing be contextual, taking into account the evidence adduced and the positions advanced at trial: T.S., at para. 117; Truscott (2007), at para. 100; R. v. Reeve, 2008 ONCA 340, 233 C.C.C. (3d) 104, at para. 72.
[104] What the cogency requirement demands is a qualitative assessment of the evidence proposed for admission. This qualitative assessment calls for a careful and critical evaluation of the proffered evidence and the credibility of the witness who offers it. That evaluation is not made with a view to determining the ultimate reliability and credibility of the evidence, but rather in the context of determining whether the proffered evidence is sufficiently cogent to warrant its admission on appeal. A necessary first step in the qualitative assessment is the identification of the purpose or purposes for which the evidence is admissible: Snyder, at paras. 48, 50 and 51; Truscott (2007), at para. 100.
[105] Evidence proposed for admission on appeal targets the reliability of the verdict rendered at trial.
[106] Sometimes, the proposed fresh evidence sets its sights on a finding of fact that was material to the ultimate finding of guilt. In this way, the appellant calls into question the reliability of the verdict by producing evidence that the appellant claims would remove or render unreliable one of the factual underpinnings of the trial verdict: Truscott (2007), at para. 82; T.S., at para. 120.
[107] On other occasions, the proposed fresh evidence is not concerned with re-litigating the findings of fact made at trial. Rather, the proposed evidence maligns the fairness of the trial process that yielded the unfavourable findings. The verdict is unreliable because something that happened, or didn't happen, at trial materially interfered with the appellant's right to make full answer and defence. The verdict is unreliable because it was the result of a fatally flawed trial process, thus amounts to a miscarriage of justice: T.S., at para. 121; Truscott (2007), at para. 85.
[108] An appellant may challenge the reliability of a verdict reached at trial by introducing further evidence on appeal that impeaches the credibility of a crucial Crown witness or the reliability of his or her testimony, including testimony that is supportive of another essential Crown witness: T.S., at para. 116; R. v. Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637, at paras. 17-18.
[109] One method of impeaching the credibility of a witness called at trial or the reliability of the witness' evidence is by the proffer for reception of evidence that the witness has recanted his or her trial testimony or an out-of-court statement admitted at trial under a listed or principled hearsay exception.
[110] When evidence of a recantation of trial evidence is tendered on appeal, the appellate court must assess the credibility of the recantation. This is so even where the recantation is offered for the limited purpose of impeaching the contrary evidence the witness gave at trial: Snyder, at para. 56; Babinski, at paras. 51-52. The ease with which mere recantations can be fabricated demands an especially rigorous qualitative assessment where the evidence proposed for admission on appeal is a post-trial recantation of a witness' trial testimony: Snyder, at paras. 61-62; Babinski, at para. 62.
[111] The searching assessment of the credibility of a post-conviction recantation is necessary to give substance to the cogency requirement, which must be satisfied to permit the introduction of fresh evidence. Some factors that may warrant consideration in an assessment of the credibility of a recantation might 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 R. v. Hache, 136 C.C.C. (3d) 285 (N.S.C.A.), at paras. 51-52.
[112] Other factors may be relevant in an assessment of whether fresh evidence of a recantation could reasonably be expected to have affected the result at trial. For example, an appellate court might consider:
i. how directly the evidence relates to the actus reus of the offence; ii. whether there is a compelling case against the appellant apart from evidence of the recanting witness; and iii. where the argument is that, even though not credible, the recantation should be put before the trier of fact as relevant to the credibility of the witness, whether the alleged unreliability of the witness was already before the trial court.
See Hache, at para. 53.
[113] Something should be said about the admissibility requirement in connection with fresh evidence.
[114] Hearsay is an out-of-court statement tendered for the truth of its contents. Generally, hearsay is not taken under oath; the trier of fact is deprived of the opportunity to observe the declarant's demeanour at the time the statement is made; and hearsay cannot be tested through cross-examination: R. v. Bradshaw, 2017 SCC 35, [2017] S.C.J. No. 35, at para. 20. The hearsay statement may be inaccurately recorded. The trier of fact cannot easily investigate the declarant's perception, memory, narration or sincerity: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 32.
[115] The presumptive inadmissibility of hearsay may be overcome where its proponent establishes on a balance of probabilities that what is proposed for admission falls within a categorical exception, or satisfies the twin criteria of necessity and threshold reliability under the principled approach: Bradshaw, at paras. 22-23.
[116] A proponent can overcome hearsay dangers and establish threshold reliability by showing, on a balance of probabilities, either that there are adequate substitutes for testing truth and accuracy (procedural reliability), or there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability): Bradshaw, at para. 27; Khelawon, at paras. 61-63; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30.
[117] Procedural reliability requires adequate substitutes for personal presence, the oath or its equivalent and contemporaneous cross-examination. This is so that the trier of fact has a satisfactory basis to internally evaluate the truth and accuracy of the hearsay statement. Proxies for traditional safeguards include video recording the statement; an oath or its equivalent; a warning about the consequences of lying; and, usually, some form of cross-examination of the declarant, such as at the preliminary inquiry, or of a recanting witness, at trial: Bradshaw, at para. 28.
[118] Substantive reliability is established if the hearsay statement is inherently trustworthy. To determine whether a statement is inherently trustworthy, we are to consider the circumstances in which it was made and any evidence that corroborates or conflicts with it. The standard for substantive reliability is high. This requires that a judge or court be satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process: Bradshaw, at para. 40.
The 911 Call
[119] It is common ground that the 911 call, which summoned police to the family home to respond to a complaint of domestic assault, should have been disclosed to the defence under Stinchcombe.
[120] Where evidence proposed for admission on appeal has to do with information that was not disclosed prior to trial, an appellant must first establish that the undisclosed information meets the Stinchcombe standard and thus amounts to a breach of the appellant's constitutional right to disclosure: R. v. Dixon, [1998] 1 S.C.R. 244, at para. 22; R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 61; T.S., at para. 123.
[121] Provided the undisclosed information satisfies the Stinchcombe threshold, thus the failure to disclose it establishes a breach of the appellant's constitutional right to disclosure, the appellant must next establish, on a balance of probabilities, that the disclosure failure impaired the appellant's right to make full answer and defence: Dixon, at para. 33; T.S., at para. 124.
[122] To establish on a balance of probabilities that the failure to disclose impaired their right to make full answer and defence, an appellant must demonstrate that there is a reasonable possibility the non-disclosure affected the outcome at trial or the overall fairness of the trial process: Dixon, at para. 34; R. v. C.(M.H.), [1991] 1 S.C.R. 763, at p. 776.
[123] To appraise the impact of the disclosure failure on the reliability of the trial result, we must consider whether there is a reasonable possibility that the undisclosed evidence, when considered in the context of the trial as a whole, could have had an impact on the verdict rendered: Taillefer, at para. 82; R. v. Illes, 2008 SCC 57, [2008] 3 S.C.R. 134, at para. 65; Dixon, at para. 36.
[124] To evaluate the impact of the disclosure failure on the overall fairness of the trial process, we must assess, on the basis of a reasonable possibility, the lines of inquiry with witnesses or the opportunities to garner additional evidence that could have been available to the defence if timely disclosure had been made: Dixon, at para. 36; Illes, at para. 65; Taillefer, at paras. 83-84.
[125] An important factor in considering the impact of a disclosure failure on the overall fairness of the trial process is the diligence of defence counsel in pursuing disclosure from the Crown. A lack of due diligence in pursuing disclosure is a significant factor in determining whether the Crown's non-disclosure affected the overall fairness of the trial process: Dixon, at para. 37. Indeed, where defence counsel knew or ought to have known of a disclosure failure or deficiency on the basis of other disclosures, yet remained passive as a result of a tactical decision or lack of due diligence, it is difficult to accede to a submission that the disclosure default affected the overall fairness of the trial: Dixon, at para. 38; R. v. McAnespie, [1993] 4 S.C.R. 501, at pp. 502-503.
The Principles Applied
[126] As I will explain, I would not admit the recantation evidence proffered through J.C. as fresh evidence, either for the truth of its contents or for impeachment purposes. Nor would I set aside the appellant's conviction on the basis of the Crown's failure to disclose K.C.'s 911 call as part of its disclosure obligations or admit that call as fresh evidence on the hearing of the appeal.
[127] I will consider first the admissibility of the recantation evidence, thereafter the 911 call.
The Recantation Evidence
[128] The appellant seeks leave to introduce as fresh evidence the affidavit and accompanying cross-examination of J.C., who claims to have had a conversation on December 28, 2013, with his brother, K.C., about the evidence K.C. gave at the appellant's trial.
[129] As J.C. recounts it, K.C. told him that he (K.C.):
i. never heard M.G.T. hit his wife; ii. heard only shouting; iii. lied when he said he heard three strikes; and iv. lied because M.G.T.'s wife made him do so as a "set-up".
[130] The appellant proposes the admission of this evidence for either or both of two purposes:
i. as evidence of the truth of the statements J.C. attributes to K.C.; and ii. as evidence with which to impeach the account of the incident K.C. provided at the appellant's trial.
[131] Turning first to the claim that the evidence should be received as proof of the truth of what K.C. is alleged to have said to his brother.
[132] Recall that one of the requirements to be met before an appellate court can receive further evidence on appeal is that the proposed evidence must be admissible under the rules of evidence applicable to criminal trials.
[133] As an out-of-court statement of a deceased declarant tendered through its recipient to establish the truth of what is expressly said or impliedly asserted, J.C.'s proposed evidence of what K.C. told him about the incident and his testimony at trial is hearsay and presumptively inadmissible.
[134] To overcome the hearsay objection, which remains pertinent even though the party tendering the proposed evidence is the defence, the appellant must be able to satisfy the requirements of a listed or the principled exception to defeat the rule of presumptive inadmissibility.
[135] J.C.'s evidence cannot be admitted under any listed or category exception to the hearsay rule. Although some aspects of K.C.'s alleged recantation might attract the penal interest exception, on balance, the claim would fall foul of the vulnerability requirements.
[136] The specific hearsay danger raised by K.C.'s alleged statement is the inability of the trier of fact to assess whether K.C. lied at trial about the sounds he heard coming from the bedroom. Hearsay can be admitted in evidence, by exception to the presumptive rule of exclusion, if it is both necessary and sufficiently reliable. Where necessity is established by the death of the declarant, the hearsay dangers can be overcome and threshold reliability established by showing that there are:
i. adequate substitutes for testing truth and accuracy (procedural reliability); or ii. sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability).
[137] As for procedural reliability, a search for adequate substitutes for testing the evidence in light of the fact that the declarant has not given the evidence in court, under oath or its equivalent, and under the scrutiny of contemporaneous cross-examination yields no adequate substitutes. After all, the task of these substitutes is to provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement as the recipient reports it.
[138] In this case, none of the usual surrogates are present. The statement was not recorded in any manner, let alone by video. Indeed, we cannot be satisfied that we have a full understanding of either the context in which the statement was made or the full substance of what was said. The declarant was not under oath or its equivalent. Nobody warned K.C. about the consequences of lying. No form of cross-examination took place. What is lacking here is any satisfactory basis upon which to evaluate the truth and accuracy of the statement as reported and to assess the traditional hearsay dangers of perception, memory, sincerity and narration.
[139] Turning to substantive reliability, a hearsay statement may also be admissible if the circumstances in which it was made and any evidence that corroborates or conflicts with it establish that the statement is inherently trustworthy. The standard for substantive reliability is high, captured in language like "made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken", or so reliable that it is "unlikely to change under cross-examination": R. v. Smith, [1992] 2 S.C.R. 915, at p. 933; Khelawon, at para. 72.
[140] The circumstances in which the statement proposed for admission here is said to have been made simply cannot satisfy the requirements of substantive reliability. The report by the recipient sheds little light on the context in which the statement was made, apart from the fact that both the declarant and the recipient were drinking and the declarant may have taken drugs earlier. By his own admission in cross-examination, the recipient has a poor recollection of what was said. We cannot be sure we have the complete statement of the declarant.
[141] The rejection of the proposed evidence because it cannot survive hearsay scrutiny when tendered as proof of its contents leaves for determination its admissibility for impeachment purposes.
[142] Among the impeachment techniques available to a cross-examiner in the circumstances of this case are cross-examination:
i. on a statement relative to the same subject-matter about which the witness testified at trial, but inconsistent with the witness' trial testimony; and ii. on bias, interest or corruption arising out of an antecedent agreement to provide false testimony for a specific purpose.
In each case, the witness' denial of the statement may be contradicted by proof that the statement was made.
[143] To impeach a witness on the grounds of testimonial inconsistency on the basis of bias, interest or corruption requires that the witness be present (actually or virtually) in the courtroom, under oath or its equivalent, in the presence of the trier of fact. It is in these circumstances that impeachment occurs. But that cannot happen here. For there is no witness to be impeached. K.C. is dead.
[144] It cannot be in the interests of justice to admit the proposed evidence on the basis of its impeachment value at a new trial. K.C. will not be a witness, thus cannot be impeached either on the basis of testimonial inconsistency or bias, interest or corruption. If a new trial were ordered, and his prior testimony admitted under s. 715 of the Criminal Code or the common law exception for evidence previously given, impeachment on either basis would be equally unavailing.
[145] In the result, I would not admit the proposed evidence of J.C. for substantive or impeachment purposes. The proposed evidence cannot satisfy the admissibility requirement for fresh evidence. It is unnecessary to consider whether it would also fail the cogency requirement.
The 911 Call
[146] The appellant advances two arguments in connection with the 911 call made by K.C. The common remedy sought is a new trial, either on the ground of constitutional infringement or as a consequence of admitting the 911 call as fresh evidence.
[147] As I will explain, I would not give effect to either submission.
[148] To take first the claim of constitutional infringement.
[149] The parties agree that the Crown should have disclosed the 911 call to the defence as part of the Crown's first party disclosure obligations under Stinchcombe. The call was the genesis of the police attendance at the family home and the arrest of the appellant. It was part of the fruits of the investigation, relevant and not subject to any realistic claim of privilege. Once ascertained, its originator would be a Crown witness at trial.
[150] It is common ground that the reason the 911 call was not disclosed was because the local Crown Attorney's office had a policy not to provide disclosure of 911 calls as part of initial disclosure. During the case management phase of proceedings, upon request by either party, the Crown would obtain disclosure of the 911 call from a unit of the Peel Regional Police and provide it to defence counsel.
[151] It is unfathomable that over two decades after Stinchcombe, a local Crown Attorney's office would promulgate and adhere to a policy of non-disclosure, at once ill-conceived and constitutionally infirm. Such a policy amounts to an abrogation of the Crown's constitutional obligation, the creation of a Charter-free zone that bars entry by an accused to obtain his or her constitutional entitlement. If it persists to this day, it has exceeded its best before date by about 35 years and should cease immediately.
[152] The right to full disclosure is just one component of the right to make full answer and defence. It does not follow, as the night the day, that solely because the appellant's right to full disclosure was breached, his Charter right to make full answer and defence was also compromised. To obtain a new trial on the basis of non-disclosure, the appellant must establish, on a balance of probabilities, that his right to make full answer and defence was impaired by showing that there is a reasonable possibility the non-disclosure affected the outcome or the overall fairness of the trial proceedings.
[153] As a statement of the witness K.C. relative to the same subject-matter about which he testified at trial, the 911 call could have been used to refresh his memory on subjects about which his recollection failed at trial, or to impeach his testimony to the extent of any inconsistencies between that testimony and the 911 call.
[154] On the other hand, a fair reading of the 911 call as a whole reveals that it was largely consistent with K.C.'s trial testimony on material issues. It provides no basis for a claim of joint fabrication or any tenable claim of bias, interest or corruption. We have no evidence from trial counsel about any potential use he may have made of the 911 call had it been disclosed in advance of trial. In assessing the impact of non-disclosure on the outcome of trial, we must remember the very limited role K.C.'s evidence occupied in the proof of guilt. He was an earwitness to events, not an eyewitness. The trial judge accepted the complainant's evidence about the events in the bedroom and made but passing reference to the confirmatory potential of K.C.'s evidence, a version consistent with the 911 call.
[155] Assessing the potential impact of the non-disclosure on the overall fairness of the trial proceedings involves a process of weighing and balancing. In this case, there can be no doubt that defence counsel knew of the 911 call. He also knew the identity of the caller. A police officer who responded to the home testified that he did so in answer to a 911 call. The officer had included this event in his notes disclosed to defence counsel in advance of trial. K.C. testified that he made the 911 call. Yet, despite knowledge of the existence of the call, defence counsel, who is not said to have provided ineffective assistance, did not seek disclosure of the call or complain that it had not been disclosed. In these circumstances, especially in the absence of any explanation from trial counsel, I simply cannot accede to a submission that the failure to disclose affected the fairness of the appellant's trial.
[156] Nor would I admit the 911 call as fresh evidence on appeal. As evidence of the truth of its contents, the call would not satisfy the reliability requirement on either a procedural or substantive basis. Even if it were received under the res gestae exception, it would not affect the verdict rendered at trial since it is largely inculpatory of the appellant and consistent with K.C.'s testimony at trial. This evidence was also available at trial, yet no effort was expended to obtain it.
Conclusion
[157] In the result, I would dismiss the appeal.
Released: September 22, 2017
"David Watt J.A." "I agree. M.L. Benotto J.A." "I agree. L.B. Roberts J.A."
