COURT OF APPEAL FOR ONTARIO

DATE: 20200430 DOCKET: C54928

Watt, Fairburn and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Marc Vickers Appellant

Counsel: Brian H. Greenspan and Naomi M. Lutes, for the appellant Roger Pinnock, for the respondent

Heard: March 13, 2020

On appeal from the conviction entered by Justice J. Bryan Shaughnessy of the Superior Court of Justice, sitting with a jury, on November 20, 2010.

REASONS FOR DECISION

[1] Following a jury trial, the appellant was convicted of the first degree murder of M.B., his ex-wife’s sister, and sentenced to life in prison.

[2] The appellant appeals his conviction. He does not allege any error on the part of the trial judge in the conduct of the trial. He seeks a new trial based on evidence he asks us to admit on appeal under s. 683(1) of the Criminal Code, R.S.C., 1985, c. C-46.

[3] As we explain in the reasons that follow, we do not consider it in the interests of justice to admit the evidence. In the result, the appeal fails and is dismissed.

The Background Facts

[4] A sketch of the relevant background affords an adequate frame of reference for an understanding of the single ground of appeal.

The Principals

[5] In early 2007 M.B. and her son, C.B., moved into the appellant’s home in Warkworth. At the time the appellant was married to M.B.’s sister. However, later that year the couple separated and M.B.’s sister left the home. M.B. and C.B. remained.

The Deteriorating Relationship

[6] Over time relations in the home became strained. C.B. and M.B. argued about C.B.’s truancy and drug use. M.B. did not care for C.B.’s girlfriend. M.B. and the appellant were at loggerheads over the appellant’s alleged failure to pay his bills and maintain the premises. While tensions ran high, there was no suggestion of physical violence in the home.

[7] In the months before her death, M.B. had voiced her concerns to others and had discussed moving out of the appellant’s home.

The Shooting

[8] On the night M.B. was killed, the only persons present at the home were M.B., C.B. and the appellant.

[9] M.B. suffered eight gunshot wounds. Any of the seven wounds to her head could have been fatal. She was also shot once in the upper back. She had blunt impact injuries to her head. A broken bone in her right hand and fractured bones in her left forearm occurred when she was still alive.

[10] After the shooting, the appellant and C.B. cleaned the house to remove signs of M.B.’s death. They buried her body in a shallow grave in the backyard, covering it with dirt and debris. The police located the body two weeks later, after the appellant and C.B. had been interviewed several times by investigators.

The Charges

[11] Following the investigation, C.B. and the appellant were charged with first degree murder. They were charged separately. C.B. was 14 years old at the time and was thus subject to the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1.

The Trial of C.B.

[12] C.B.’s trial took place first. C.B. testified that when he was upstairs at the house, he heard gunshots. He ran downstairs. There, he saw his mother lying dead on the floor. The appellant was standing there. He had a gun in his hands.

[13] The jury did not believe C.B.’s evidence that the appellant was solely responsible for the shooting. C.B. was convicted of first degree murder.

The Appellant’s Trial

[14] After C.B. was convicted, the appellant’s trial began. As part of its case against the appellant, the Crown introduced statements made by the appellant to the police as the investigation proceeded. The appellant gave inconsistent accounts, but never acknowledged having killed M.B. He admitted having heard some popping sounds coming from inside the house. But then he fainted. When he awakened, C.B. was standing over him with a rifle. C.B. threatened to blame the appellant and told him to come inside the house. The appellant admitted to police that he helped C.B. move and bury M.B.’s body and dumped the gun, a .22 calibre rifle, into the river.

[15] At trial, where he was represented by experienced counsel, the appellant sought to introduce two statements made by C.B. In the first, C.B. admitted to his aunt, M.B.’s sister, that he had shot M.B. in anger. He explained where he had disposed of the rifle. He made no mention of the appellant’s involvement in the killing. The second account was one C.B. gave to a psychiatrist before his sentencing proceedings. C.B. explained that he killed his mother during what seemed like a tirade of criticism and abuse. The shooting happened too quickly for the appellant to intervene. This interview was not recorded, but C.B.’s account formed part of the psychiatrist’s notes and was included in his written report.

[16] The appellant sought to introduce C.B.’s statements under the traditional exception for declarations against penal interest and the principled exception to the hearsay rule.

[17] The trial judge rejected the application. [1] Because C.B. was available to testify, the statements were not admissible under the traditional exception for declarations against penal interest. Under the principled exception, the necessity requirement was not met. C.B. was available to testify and a refusal to answer certain questions at the preliminary inquiry did not satisfy the necessity requirement. Further, the statements – neither of which was recorded – were not reliable. They were but two of “several conflicting and inconsistent statements” provided by C.B. since his mother’s death.

The Proposed Fresh Evidence

[18] It is helpful to begin with a brief examination of the origins of the proposed fresh evidence.

[19] About three years after the appellant was convicted, his counsel (not counsel on this appeal) wrote to C.B. at his place of incarceration. Counsel sought to speak with C.B. about the appellant’s involvement in M.B.’s murder. Six months later, counsel reiterated his request and invited C.B. to call counsel’s office to arrange an interview.

[20] Almost four years after the appellant’s conviction, then appellate counsel met with C.B. at the youth facility where he was incarcerated. Counsel asked C.B. several questions about the night of the killing. C.B. responded. A law student and legal assistant sat in on the interview and took notes. The interview was not audio or video recorded.

[21] During the interview, C.B. claimed that during an argument with M.B., he picked up a .22 calibre rifle from the living room and shot her several times. The appellant, C.B. said, did not participate in the shooting. The appellant assisted only after the fact – to clean up the residence, dispose of the body and attempt to distance them from any involvement in M.B.’s death.

[22] Former appellate counsel drafted an affidavit for C.B. to sign based on his statements during the interview. Another counsel was retained to provide C.B. with independent legal advice.

[23] Twenty-one months after the interview with C.B., former appellate counsel and the attorney who was to provide independent legal advice met with C.B. at a federal minimum security prison. Counsel reviewed the draft affidavit with C.B. Apart from some minor clarifications, C.B. said the affidavit was true and accurate. The interview was not audio or video recorded. C.B. told the lawyers he wanted some further time to consider whether he would sign the affidavit.

[24] About 15 months later, another lawyer from the same firm met with C.B. at the same federal correctional facility.. Once again counsel reviewed the draft affidavit and C.B., after noting some minor changes, repeated his wish for further time.

[25] C.B. ultimately declined to sign the affidavit. Accordingly, the proposed fresh evidence consists of the draft affidavits prepared for C.B. as well as affidavits from C.B.’s interviewers – two lawyers, one legal assistant and one summer student – setting out the contents of those interviews.

The Additional Statements

[26] It is common ground that at different times, C.B. has offered several different versions of the circumstances surrounding M.B.’s death.

[27] In early June 2008, before M.B.’s body had been found, C.B. told the police M.B. had simply walked out the door and left home after he had argued with her. This interview was audio and video recorded.

[28] On June 12, 2008, after he had been arrested and cautioned, C.B. was again interviewed by police. C.B. claimed the appellant had told him (C.B.) that he (the appellant) had argued with M.B. who had then left the house. This interview was audio and video recorded.

[29] Later that day C.B. spoke with his aunt, M.B.’s sister. C.B. said he had argued with M.B. about her intention to move out of the house and about the loss of C.B.’s girlfriend. C.B. said he shot M.B. who screamed and fell to the ground. C.B. shot her again. This discussion was video but not audio recorded.

[30] At his trial, C.B. gave evidence that he was upstairs at the house when he heard gunshots. He went downstairs. There he saw his mother lying dead on the floor, and the appellant holding a gun.

[31] After C.B. was convicted, he spoke to a social worker in preparation for sentencing. These discussions were not recorded save for the notes of the social worker. C.B. told the social worker that he and the appellant had had serious discussions about killing M.B. by shooting her. C.B. also told the social worker that on the night his mother died, she and the appellant had argued. The appellant told C.B. to go outside. While outside, C.B. heard gunshots. When he returned to the house, he saw his mother lying dead on the floor. The appellant was standing over her with a gun. C.B. helped the appellant in the cover-up.

[32] C.B. also participated in two interviews with a psychiatrist for sentencing purposes. On the first occasion, C.B. refused to discuss what happened. A few weeks later, C.B. told the psychiatrist that he (C.B.) had shot M.B. during what he perceived as a barrage of criticism. The shooting was impulsive; C.B. had never contemplated such an act. It happened too quickly for the appellant to respond.

[33] In fall 2018 C.B. applied to the Parole Board of Canada for an escorted temporary absence for community service. The Board summarized C.B.’s description of the shooting in these terms:

You are a 25 year old first time federal offender serving a Life sentence for First Degree Murder. In May 2008, your mother (the victim) was at home with you and your co-accused when you and the victim got into an argument about your attendance at school. You advised that you took a pre-loaded firearm and shot her several times, when the rifle jammed, you used the stock to beat her. Your co-accused, who you described as an uncle fixed the firearm and you then returned and shot her several more times. You and your co-accused cleaned up the house and buried the victim in what has been described in the file information as a pre-dug grave in the backyard. The following day you disposed of a damaged rifle and scope in a creek. The victim’s family reported her missing and the search ensued. The day after the murder you attempted to withdraw funds from the victim’s bank account. On June 11, 2008, you attended the police station and provided a statement leading officers to attend the creek where they were able to locate the weapon and telescope in the creek.

[34] The Parole Board granted C.B.’s request for an escorted temporary absence.

The Arguments on Appeal

[35] The parties do not dispute the applicable legal principles. As the party seeking to introduce fresh evidence, the appellant must establish on a balance of probabilities that admission of his proposed evidence is in the interests of justice. The standard to determine whether the evidence should be admitted is set forth in Palmer v. The Queen, [1981] S.C.R. 759, at p. 775. In Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92, this court described the exercise of statutory discretion as involving three questions:

Is the proposed evidence admissible under the rules of evidence applicable in criminal trials? [The admissibility requirement]
Is the proposed evidence sufficiently cogent that it could reasonably be expected to have affected the verdict? [The cogency requirement]
What is the explanation offered for the failure to produce the evidence at trial and how would that explanation affect its admissibility on appeal? [The due diligence inquiry]

See also R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 45.

The Position of the Appellant

[36] The appellant says that the proposed evidence satisfies the three requirements essential to permit its introduction. It should be admitted, the appeal allowed and a new trial ordered.

[37] First, admissibility.

[38] The appellant contends the evidence is admissible for three purposes. It is admissible for substantive purposes because it satisfies the necessity and reliability criteria of the principled exception to the hearsay rule. Necessity is established because C.B. has clearly indicated he will not provide an affidavit or answer questions under oath. Reliability is established because of the circumstances in which the statements were made and recorded. This is especially so because of the relaxed approach adopted in respect of hearsay offered by the defence.

[39] In addition, the proposed evidence should be admitted to assist in determining whether the reliability requirement was properly determined on the voir dire at trial. Finally, the proposed evidence would be a valuable impeachment tool were a new trial to be ordered and C.B. were to testify in accordance with his testimony at his own trial.

[40] Second, cogency.

[41] The appellant says the proposed evidence also satisfies the cogency requirement. The evidence is relevant to the central issue at trial: the nature of the appellant’s participation in M.B.’s murder. The evidence, received by several neutral witnesses, is credible and has significant probative value confirmed by the appellant’s statements admitted at trial. Had this evidence been admitted, it would have affected the jury’s assessment of the appellant’s statements.

[42] Third, due diligence.

[43] The appellant emphasizes that due diligence is not a condition precedent that must be satisfied before fresh evidence may be received on appeal. In any event, the due diligence requirement is met in this case. The evidence did not exist until after the trial. The failure to adduce it was not due to some tactical decision by trial counsel. He sought to introduce hearsay statements by C.B. – rather than call him as a witness – only after C.B. refused to answer questions at the preliminary inquiry.

The Position of the Respondent

[44] The respondent emphasizes that admitting evidence of facts which were litigated at trial is very much the exception to the accepted appellate process. This point is especially salient here considering that the proposed fresh evidence is an incomplete, unrecorded hearsay account which amounts to a recantation of C.B.’s only sworn evidence about the killing.

[45] According to the respondent, the appellant cannot satisfy the admissibility requirement through application of the principled exception to the hearsay rule. The necessity requirement cannot be met simply because C.B. would not answer questions at the preliminary inquiry. He was not subpoenaed for trial. A reluctance to testify does not amount to necessity.

[46] Nor can the appellant satisfy the reliability requirement. The specific circumstances in which the statement was made provide no assurance about its inherent reliability. Reliability is about the declarant and the declaration, not about the recipients or their recording of it. The proposed evidence is one of many versions of the same events offered by the same declarant.

[47] In addition, the respondent says, the proposed evidence falls well short of meeting the cogency requirement. It amounts to neither more nor less than a recantation of the only version of relevant events C.B. gave under oath: his testimony at his own trial. Extra caution should be applied when recantations are tendered for admission on appeal. That caution is well warranted in this case where the recantation has itself been undermined by yet another statement assigning a participatory role to the appellant.

[48] The respondent accepts that the due diligence requirement has been satisfied.

Discussion

[49] As we will explain, we are not satisfied that it is in the interests of justice to admit the proposed fresh evidence.

The Admissibility Requirement

[50] To satisfy the admissibility requirement, the appellant points to three purposes for which the proposed evidence is admissible:

i. as substantive evidence identifying C.B. as the sole killer of M.B.; ii. as new evidence demonstrating error in the trial judge’s ruling excluding C.B.’s statements about the circumstances of M.B.’s death; and iii. as a means of impeaching the credibility of C.B. if he were to testify at a new trial consistently with the evidence he gave at his own trial.

[51] As for the second proposed purpose, we are not persuaded that the mere existence of a similar statement made several years after those tendered for reception at trial would alter the nature or result of the trial judge’s analysis.

[52] The third proposed purpose – i.e., as an impeachment tool – is too remote to warrant consideration. Inherent in it is the assumption that C.B. would testify at a new trial and replicate his evidence at his own trial in which he assigned sole responsibility to the appellant. Who, we ask rhetorically, would call such a witness? The appellant had the opportunity to call C.B. as a witness at trial. Very experienced trial counsel declined to do so. No doubt the unpredictability of anything that C.B. might say under oath was a significant factor in trial counsel’s tactical decision. That unpredictability persists to this day, magnified by more and different versions with each presenting opportunity.

[53] This leaves the first purpose proposed by the appellant: admission as substantive evidence supporting his position at trial. He rests his case for admissibility on satisfaction of the requirements of necessity and reliability under the principled exception to the hearsay rule.

[54] In our view, the proposed evidence cannot satisfy the necessity requirement. The declarant, C.B., is available. He is competent. He is compellable. And he is currently in custody serving a sentence of imprisonment. First-hand evidence is available. Reluctance to testify does not establish unavailability, much less necessity: see R. v. F. (W.J.), [1999] 3 S.C.R. 569, at para. 44.

[55] A proponent who seeks introduction of hearsay evidence under the principled approach may establish reliability by demonstrating on the balance of probabilities that there are no real concerns:

i. about the truth of the statement because of the circumstances in which it was made (substantive reliability); or ii. about the offer of the statement as hearsay because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested by means other than contemporaneous cross-examination (procedural reliability).

See R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, at paras. 23, 27-32. These means may work in tandem: elements of both can combine to overcome the specific hearsay dangers a statement might present, even where neither procedural nor substantive reliability, on its own, would be sufficient to support reception: Bradshaw, at para. 32.

[56] Substantive reliability is established if the circumstances in which the statement was made make it inherently trustworthy. This is a high standard and requires us to be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 49; Bradshaw, at para. 31.

[57] In our view the proposed evidence cannot meet the standard required to establish substantive reliability. The statements were made years after the relevant events they describe. They are but one of a series of versions of events, preceded and followed by others inconsistent with them, including the only under-oath account of the same events. To say that contemporaneous cross-examination would add little, if anything, to the process would be to engage in the grossest form of understatement.

[58] We do not doubt the credibility of any of the hearsay recipients or their narration of C.B.’s statements. But this does not assist the appellant. Threshold reliability serves as a substitute for cross-examination of the declarant (in this case, C.B.), not the narrator: see R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at paras. 48-50; R. v. Humaid (2006), 208 C.C.C. (3d) 43 (Ont. C.A.), at para. 51, leave to appeal refused, [2006] S.C.C.A. No. 232. Where the narrator is available for cross-examination at trial, issues regarding their credibility can “safely be left to the trier of fact to consider”: R. v. Berry, 2017 ONCA 17, 345 C.C.C. (3d) 32, at para. 50, n.2.

[59] Procedural reliability requires adequate substitutes for the traditional method of testing the evidence through contemporaneous cross-examination. As the Supreme Court explained in Bradshaw, at para. 28 (citations omitted):

These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Substitutes for traditional safeguards include a video recording of the statement, the presence of an oath, and a warning about the consequences of lying. However, some form of cross-examination of the declarant, such as preliminary inquiry testimony or cross-examination of a recanting witness at trial, is usually required.

[60] In this case, no formal statement was taken from the declarant. All we have are two draft affidavits neither of which purports to recount the declarant’s precise words. Neither is sworn or even initialed by the declarant. There was no audio or video recording. No oath. No warning about the consequences of lying, especially in light of the declarant’s prior sworn testimony assigning exclusive responsibility for the killing to the appellant.

[61] In the result, we are not satisfied that the proposed evidence would be admissible under the principled exception to the hearsay rule if tendered at trial.

The Cogency Requirement

[62] The cogency requirement necessitates a qualitative assessment of the evidence tendered for reception on appeal. This evaluation must measure the probative potential of that evidence in the context of the entirety of the evidence admitted on appeal and heard at trial. The cogency inquiry asks 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 it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result?

See Truscott, at paras. 99-100.

[63] If the proposed fresh evidence, considered in the manner we have described “could reasonably be expected to have changed the result at trial, the evidence is sufficiently cogent to justify its admission on appeal”, subject to a consideration of the due diligence requirement: Truscott, at para. 100.

[64] The proposed evidence is relevant to the central issue at trial: whether the appellant killed M.B. But, in our view, it is not reasonably capable of belief. It is but one of multiple versions of the same events provided by the same declarant over more than a decade. It is unsupported by any physical evidence and amounts to a recantation of his only sworn account of the same events. Finally, it is inconsistent with his most recent account provided to the Parole Board of Canada, where he has suggested that the appellant fixed the firearm mid-way through the killing of his mother.

[65] The cogency requirement is not met.

Due Diligence

[66] We also have serious reservations about the due diligence criterion. C.B. was available at trial. He was a competent and compellable witness. To be certain, his testimony at his own trial incriminated the appellant. But contradictory statements were available for impeachment purposes were he to maintain that version at trial.

[67] In addition to the lack of diligence at trial, we are concerned with the fact that it has been 12 years since the murder and 10 years since conviction. In these circumstances, we are not satisfied that it is in the interests of justice to admit the proposed fresh evidence.