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) , (2.1) , (2.2) , (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(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.

(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); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .

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.

(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: 20210716 DOCKET: C65746 MacPherson, Trotter and Harvison Young JJ.A.

BETWEEN Her Majesty the Queen Respondent and Grant Litt Appellant

Counsel: Danielle Robitaille and Lauren Mills Taylor, for the appellant Jamie Klukach and Caitlin Sharawy, for the respondent

Heard: January 21, 2021 by video conference

On appeal from the conviction entered on May 10, 2018 by Justice Frederic M. Campling of the Ontario Court of Justice.

Harvison Young J.A. :

A. Overview

[1] The charges underlying this appeal arose out of a frightening home invasion. When the 15-year-old complainant answered the door, she was attacked by a young man who pushed her to the floor and later fled. The appellant was charged with breaking and entering and committing an indictable offence, touching a person under 16 for a sexual purpose, and attempting to choke a person to enable himself to commit the indictable offence of sexual assault.

[2] The only issue at trial was identity. The complainant had provided descriptions of the attacker and worked with the police to create a composite sketch. She had also noted the appellant’s photo in a photo line-up. The attacker had left a boot print on the floor at the home, and the Crown advanced expert evidence at trial comparing the boot print at the scene with the appellant’s boots, which were seized from his car. The appellant’s evidence on his whereabouts also placed him in the vicinity of the complainant’s home around the time of the attack. The trial judge convicted the appellant of all three charges.

[3] On appeal, the appellant argues that the trial judge erred in his assessment of the evidence and erred in dismissing his application to exclude from evidence his boots and evidence flowing from those boots pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms. He also seeks to introduce fresh evidence consisting of a revised opinion on the boot print by the Crown’s expert from trial.

[4] For the following reasons, I conclude that this fresh evidence must be admitted with the result that the appeal must be allowed and a new trial ordered. Accordingly, it will not be necessary to consider the other grounds of appeal except to the extent that any aspects of those arguments bear on the fresh evidence issue.

B. Background

(1) Facts

[5] The 15-year-old complainant and her sister had just arrived home from school. They lived on a country road near Hamilton, Ontario. The complainant was vacuuming when the family dog started barking. She looked out the window and saw a red dump truck parked on the road. A few minutes later, a young man knocked on her door, asked for directions, came into the home, grabbed her by the arms, and pushed her to the floor. She started screaming, and he started to touch her breasts. He put his hand over her mouth and choked her, but he abandoned the attack when her sister in another room heard screaming and called out. The young man fled.

[6] The complainant called 911 shortly after the attack. That evening, at a police interview, she provided the police with a detailed description of her attacker. A boot print was also found on the floor of the house. The day after the attack, the complainant met with police to create a composite sketch of her attacker.

[7] The appellant worked for a landscaping company, which had headquarters near the complainant’s home, in the spring of 2016. The employees used red trucks. On May 25, 2016, the day of the attack, the appellant was in Guelph with his grass cutting crew and returned to the company headquarters in the afternoon at around 3 to 4 p.m. He was driving a red dump truck that day. After returning to headquarters, he went to the dump alone to dispose of the grass clippings, located to the west. To delay having to clean out his boss’s pond, which was an apparently unpleasant job, he went east instead and drove up the road the complainant lived on before looping back to the dump. This added around five minutes to his trip. The appellant’s route in a red dump truck on the way to the dump took him past the complainant’s home around the time of the attack. The appellant testified at trial and denied attacking the complainant.

[8] The police planned to arrest the appellant, seize his boots and cell phone incidental to arrest, secure his vehicle, secure his home, and then release him unconditionally. They also planned to then obtain search warrants for his car, home, and cell phone. The appellant was arrested on June 1, 2016 and read his rights and cautioned. The police seized his cell phone and the boots he was wearing, which were new. They noticed another pair of boots in his car as well. The appellant was handcuffed and placed in the back of the police car. One officer asked for his consent to search his phone and vehicle, which the appellant declined. The appellant was unconditionally released about an hour later, and in the meantime, the police had secured his home and towed his vehicle to the police station. The police obtained a search warrant for the car the next day and seized the pair of boots.

[9] According to the police, the appellant had not asserted his right to counsel at any point. According to the appellant, he was searched and handcuffed before he was read his rights and cautioned, and he had asserted his right to counsel multiple times and had given his lawyer’s name, but the police did not facilitate a call to his lawyer. During the trial, the appellant applied under s. 24(2) of the Charter to exclude the evidence of or any evidence flowing from the boots seized from his car based on alleged breaches of ss. 8 , 9 , and 10(b). The trial judge assumed, without deciding, that the appellant’s right to counsel had been breached when he was arrested, and the trial judge held that the evidence was admissible on the basis that the evidence had not been “obtained in a manner” that violated the appellant’s Charter rights pursuant to s.24(2).

[10] The complainant participated in a photo line-up on July 20. The appellant’s photo was taken from his driver’s licence, which could not be enlarged without degrading it, so the photos in the line-up were all rather small. The complainant selected the appellant’s photo, saying “[t]his picture really stood out to me … I’m not really sure why … it really reminds me of … the person who was at my home.”

[11] The appellant was arrested and charged with the attack on the complainant on December 15.

(2) Reasons for Conviction

[12] The trial judge began his reasons by reviewing the circumstances of the attack on the complainant and her evidence on the attacker’s description. There were some discrepancies between her descriptions given at various times, which were minor and understandable, and some differences between the descriptions and the appellant. He also noted that the appellant resembled the composite sketch that the complainant and police created. The trial judge found that the photo line-up was fair, based on the complainant’s description, and he discussed the complainant’s photo line-up evidence and evidence at trial. Based on the appellant’s lies in his evidence regarding his physical appearance, the trial judge disbelieved the appellant’s denial of the attack.

[13] He then described one part of the other evidence implicating the appellant, the evidence on the boot print. The Crown had called an expert on footwear impressions, Sgt. Annette Huys, to compare the boot print left at the complainant’s home with the old boots seized from the appellant’s car. The expert’s opinion was that there was a high degree of association between the left boot from the appellant’s car and the boot impression at the scene. The trial judge found that the evidence came extremely close to proving that the left boot from the appellant’s car made the impression in the complainant’s home.

[14] In conclusion, the trial judge said that he considered all of the evidence, and that because the appellant lied rather obviously to exonerate himself, he disbelieved the appellant’s evidence of innocence. The Crown’s evidence was overwhelming proof that the appellant attacked the complainant, and the trial judge convicted the appellant of all three charges.

C. Discussion

[15] The appellant raises a number of grounds of appeal. First, he claims that the trial judge erred in his assessment of the evidence by failing to properly and evenly scrutinize the evidence. He also claims that the trial judge misapprehended the expert evidence when he described it as coming extremely close to proving that the appellant’s boot seized from his car made the impression at the scene, when her opinion was that there was “a high degree of association” between the two.

[16] Second, the appellant argues that the trial judge erred in failing to exclude the boot print evidence on the basis that it was not “obtained in a manner” that infringed a Charter-protected interest. He submits that his boots were obtained in the same investigative transaction as his initial arrest on June 1, and that the trial judge erred in accepting the Crown’s argument that the search of the appellant’s car the next day, which led to the seizure of the boots, was not sufficiently connected to the failure to permit him to contact a lawyer.

[17] The appellant also asks this court to admit fresh evidence on appeal. The fresh evidence consists of a revised expert report by the same expert, Sgt. Annette Huys, whose original report concluded that there was a “high degree of association” between the impression at the scene and the appellant’s boot. She prepared the subsequent report after reviewing an expert report obtained by the appellant’s appeal counsel after the trial. In this report, her opinion is that there is only an “association of class characteristics” between the impression at the scene and the appellant’s boot.

(1) The Fresh Evidence

[18] It will be useful to review the circumstances giving rise to the application to admit fresh evidence on this appeal.

[19] To form her opinions, Sgt. Huys used the Range of Conclusions Standard for Footwear and Tire Impression Examinations published by SWGTREAD (Scientific Working Group for Shoeprint and Tire Tread Evidence), which provides possible conclusions ranging from insufficiency of detail to a positive identification. For a conclusion of “association of class characteristics”, the class characteristics of design and physical size must correspond between the questioned impression and known footwear, and correspondence of general wear may also be present. For a conclusion of “high degree of association”, the questioned impression and known footwear must correspond in the class characteristics of design, physical size, and general wear. There must also exist: (1) wear that, by virtue of its specific location, degree and orientation make it unusual and/or (2) one or more randomly acquired characteristics. In Sgt. Huys’ original opinion, she based her comparison only on the first criterion, wear that is unusual. While she observed a small accidental characteristic in the heel in the test impression of the appellant’s boot, she did not base her opinion on it because of the debris in that area of the scene impression and lack of clarity.

[20] Upon reviewing the trial judge’s reasons, the appellant’s appeal counsel (who was not trial counsel) sought their own opinion of the boot print evidence. A footwear analysis report (the Benton Report) was obtained on September 22, 2019 and provided to the Crown. Mr. Benton also used the SWGTREAD Range of Conclusions. He could not verify the conclusion reached by Sgt. Huys, but rather opined that “the definition of this conclusion can be misleading and is not supported by the testimony and evidence provided”. The conclusion that should have been reached was that there was either a “limited association of class characteristics” or an “association of class characteristics” between the appellant’s boot and the scene impression.

[21] The Benton Report also considered the size of the possible population of boots that resembled those seized from the appellant. The appellant’s boots were men’s size 9½ “Kodiak Rebel Steel Toe 6 Inch Work Boots”. The outsole pattern used on this boot was used from 2012 to 2016. The same mold is used for size 9 and 9½ boots. In only one year (2015-2016), 1909 pairs of boots in those sizes were sold in Ontario. It is unknown how many were sold in the proximate years and geographic areas. In addition, the same outsole pattern has been used on 7 different models of footwear from the same manufacturer.

[22] The appellate Crown provided this report to Sgt. Huys. Upon reconsideration, she changed her opinion, downgrading her conclusion about the footwear evidence along the lines of the Benton Report. Sgt. Huys, in her new report, stated that while in her opinion there was an association of wear from the scene impression to the test impression of the appellant’s boot, Mr. Benton had pointed out areas of discrepancy due to lack of clarity in the scene impression. This lack of clarity changed her level of opinion from a “high degree of association” between the appellant’s boot and the scene impression to “association of class characteristics”.

[23] In her revised opinion, Sgt. Huys made no express findings about the degree of association of wear between the scene impression and the test impression from the appellant’s boot. But, when comparing her conclusion to the SWGTREAD Range of Conclusions, it can be inferred that she no longer viewed the scene impression as containing “wear that, by virtue of its specific location, degree and orientation make it unusual”. Rather, to fall within the scope of an “association of class characteristics” this must have been only “general wear”.

(a) The Parties’ Submissions

[24] The appellant argues that the fresh evidence is admissible pursuant to the test in Palmer v. The Queen, [1980] 1 S.C.R. 759 and and Truscott (Re), 225 C.C.C. (3d) 321 and 2007 ONCA 575 because it was not available at trial, it is cogent and would have affected the verdict, and is credible. In particular, he submits that the fresh evidence is highly relevant to the identity of the assailant, which was the only issue at trial, and that, given the trial judge’s heavy reliance on Sgt. Huys’ trial opinion that there was a “high degree of association” between the scene impression and the appellant’s boot print, it is clear that her revised opinion could have affected the verdict.

[25] The respondent argues that the appellant fails to meet the cogency argument. In its view, the potential ability of the fresh evidence to affect the verdict must be considered within the broader context of the evidence as a whole. It argues that the Crown’s case, viewed in its entirety, was overwhelming, and that even with the revised expert opinion, it “defies reasonable possibility that the tight web of incriminating circumstantial evidence engulfing the appellant could have been the product of bad luck or incredibly unfortunate coincidence”.

(b) The Law

[26] The test for the admission of fresh evidence on appeal begins with s. 683(1) of the Criminal Code, R.S.C. 1985, c. C-46, which provides that an appellate court has a broad discretion to receive evidence on appeal where it considers it is in “the interests of justice” to do so. The burden is on the applicant to establish that the fresh evidence is admissible: R. v. Abbey, 140 O.R. (3d) 40, at para. 43 and 2017 ONCA 498.

[27] As explained in R. v. Allen, 362 C.C.C. (3d) 509, leave to appeal refused, [2020] S.C.C.A. No. 298 and 2018 ONCA 498, the phrase “interests of justice” signals a broad discretion. However, this discretion is not unbordered and a context-sensitive inquiry is required. As this court explained, at para. 90:

The 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. [Citations omitted.]

[28] Although the overriding test for the admission of fresh evidence is “the interests of justice”, appellate courts have structured their discretion under this broad standard by prescribing a specific set of criteria to be addressed which may be understood as addressing these concerns: Abbey, at para. 44. The leading Supreme Court of Canada case articulating the criteria is Palmer. In Truscott, a five-judge panel of this court reformulated the Palmer test. As in Abbey, I will use our court’s reformulation. It consists of three criteria, summarized in Abbey, at para. 44:

1. Is the evidence admissible under the operative rules of evidence? (admissibility criterion)
2. Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict? (cogency criterion)
3. What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence? (due diligence criterion)

[29] This appeal turns on the second and third criteria – the cogency and due diligence criteria.

(i) Cogency

[30] Cogency has a three-pronged focus: Truscott, at para. 99; R. v. C.B., 146 O.R. (3d) 1, at para. 134 and 2019 ONCA 380. The three prongs are:

1. The proposed evidence must be relevant to a decisive or potentially decisive issue at trial;
2. It must be credible in that it is reasonably capable of belief; and
3. It must be sufficiently probative that, when taken with the rest of the evidence received at trial, it could reasonably be expected to have affected the result.

[31] There is no question that the proposed evidence here is relevant to the identification of the person who attacked the complainant in her home, which was the central issue at trial. Similarly, there is no serious issue as to the credibility of the fresh evidence as it consists of an amended opinion of the same expert whose opinion the trial judge accepted and relied on at trial. The heart of the cogency question in this appeal is whether the proffered fresh evidence “could reasonably have affected” the verdict at trial.

[32] In R. v. Reeve, 233 C.C.C. (3d) 104, at para. 72 and 2008 ONCA 340, Doherty J.A. wrote that the “could reasonably be expected to have affected” standard is somewhere between “would probably have affected the result” and “could possibly have affected the result.” This determination requires a weighing of the potential probative value of the fresh evidence in the context of the trial evidence and the positions advanced by the parties at trial: Reeve, at para. 72.

[33] This also requires a consideration of the trial judge’s reasoning. For example, in R. v. J.A.A., [2011] 1 S.C.R. 628 and 2011 SCC 17, the trial judge commented that the case was a close one. He ultimately found the complainant to be credible and disbelieved the accused’s testimony. In his credibility discussion, he referenced evidence of an injury to the accused’s finger. A police officer had testified and explained why he thought the injury was a bite mark. The trial Crown had urged the trial judge to accept the officer’s testimony and argued that it corroborated the complainant’s version of events (that she bit down on the accused’s finger as hard as she could). The trial judge mentioned evidence of this finger injury twice and clearly regarded it as corroborative. On appeal, the appellant adduced compelling evidence that the injury was not a bite mark. In concluding that the fresh evidence could reasonably have affected the result, Charron J. stated for the majority, at paras. 12-13, that:

It is apparent, and understandable, from the trial judge’s reasons that he looked closely at any item of physical evidence that could assist him in determining the credibility issue.

When considered in the context of the other evidence at trial and the trial judge’s reasons as a whole, I agree with Winkler C.J.O. that Dr. Wood’s evidence is “sufficiently cogent that it could reasonably be expected to have affected the verdict” (para. 80).

[34] In Reeve, Doherty J.A. commented that looking at the closing submissions of the parties is one way to glean the potential value of the discredited evidence: at para. 76. The discredited evidence in Reeve was expert toxicology evidence indicating that the victim died within 20 minutes after having his last drink, which contradicted the appellant’s version of events and supported the Crown’s theory. Fresh evidence tendered suggested that this opinion was incorrect. The discredited evidence itself “occupied a few seconds in a lengthy trial”: at para. 73. However, the evidence was unchallenged in cross-examination and the expert’s credibility was not disputed. Because of this, there was a “real likelihood that the jury gave Mr. Robinson’s evidence significant weight”: at para. 75. The evidence played an important role in the Crown’s closing submissions and, if believed, would have undermined the appellant’s credibility and suggested that the murder was planned. Thus, although the Crown’s case was “formidable”, the fresh evidence could be reasonably expected to have affected the result.

[35] In summary, the application of the “could reasonably be expected to have affected” test requires an examination of the fresh evidence, the evidence at trial, the submissions of the parties, and the role that the discredited evidence played in the reasoning process. In J.A.A. and Reeve, the fresh evidence undermined aspects of the Crown’s case. In J.A.A., the discredited evidence played an important role in the trial judge’s reasoning process, especially because the trial judge admitted that it was a close case. In Reeve, it was impossible to know exactly what role the discredited evidence played in the jury’s reasoning process. However, the evidence was an important component to the Crown’s case and, given the fact that the evidence was unchallenged on cross-examination, there was a “real likelihood” that the jury gave the evidence significant weight.

(ii) Due Diligence

[36] The due diligence factor is not a condition precedent to the admissibility of fresh evidence on appeal. It only becomes important if the fresh evidence meets the first two criteria of admissibility and cogency. It is concerned with the broader integrity of the criminal justice system, including the need for finality in the trial process. It asks whether the explanation offered, if any, for the failure to adduce the evidence at trial should affect the admissibility of the evidence on appeal. The explanation offered or absence of an explanation may result in the fresh evidence being excluded despite being otherwise admissible on appeal. It is a factor to be taken into account, along with the requirement of cogency, in deciding whether the “interests of justice” warrant admission of the evidence: Truscott, at para. 93; C.B., at para. 127; Reeve, at para. 68.

[37] Where the fresh evidence was available but not tendered at trial for tactical reasons, an additional degree of cogency is required before the fresh evidence may be received on appeal: C.B., at para. 135. As Watt J.A. explained in R. v. Manasseri, 132 O.R. (3d) 401, leave to appeal refused, [2016] S.C.C.A. No. 513 and 2016 ONCA 703, at paras. 247-48:

We generally hold fresh evidence to a more stringent standard of cogency where it was available, but not adduced at trial because of a tactical decision by trial counsel.

The rule is general, but not unyielding. Due diligence is not a trump card that denies entry to all evidence tendered for the first time on appeal that satisfies the admissibility and cogency requirements for admission.

[38] The general rule is less strictly applied in criminal law, and, as in Manasseri, when the charges are very serious as they were in that case: at para. 224.

(c) Application to the Facts

[39] There is no dispute as to the admissibility of the evidence pursuant to the general rules of evidence. It is relevant to the issue of the identity of the assailant, which was the sole issue at trial, and consists of an opinion by an expert whose qualifications were accepted at trial.

[40] As I have already indicated, the fresh evidence issue turns on the questions of cogency and, relatedly, due diligence. The question of cogency considers whether the fresh evidence is relevant, credible, and sufficiently probative such that it could reasonably be expected to have affected the result. The fresh evidence is highly relevant and bears on a decisive issue at trial, identity. The expert’s revised opinion is credible. The same expert was qualified and testified on the same issue at trial. This was not a case, for example, where a witness who was reluctant and uncooperative at trial recants his evidence later: see e.g. Allen.

[41] The respondent argues that this was an extremely strong case and that the proposed evidence could not reasonably be expected to have affected the verdict. With respect, I disagree.

[42] In considering whether Sgt. Huys’ revised opinion could reasonably be expected to have affected the result, the court must examine its broader context, such as the fresh evidence, the evidence at trial, the submissions of the parties, and the role that the discredited evidence played in the reasoning process: Reeve, at paras. 72-76; J.A.A., at para. 13.

[43] In this case, the most important factor bearing on whether the fresh evidence could reasonably be expected to have affected the result is the trial judge’s reasons themselves. These reasons were brief, and a significant portion focused on the boot print evidence.

[44] The trial judge readily dismissed the appellant’s evidence. The trial judge found that the appellant was lying when he said his hair was straight when the assault took place, and when he said that he shaved every day and explained that what appeared to be stubble in surveillance photos had been dirt and mud. The complainant had described stubble and said that her attacker had hair that was not really curly, “but it wasn’t, like straight”. After referring to the appellant’s driver’s licence photo and his arrest photo, and the appellant’s appearance throughout the trial, the trial judge noted that he would consider the appellant’s hair to be curly and had no doubt that it was curly on the day of the attack. Regarding the stubble and mud explanation, the trial judge stated that, in his opinion, the appellant was lying to exonerate himself. He commented that the composite sketch produced from the complainant’s description “resembles [the appellant] very closely, but not precisely.”

[45] The trial judge then turned to the evidence on the photo line-up and the complainant’s evidence at trial, stating:

Whether the manner in which [the complainant] referred to your photo in the July 20, 2016 line-up and again in court, amounts to proof of your identity beyond a reasonable doubt, I do not need to decide because of the other evidence implicating you.

[46] He then reviewed “just one part of this other incriminating evidence”, the boot print evidence, relying on Sgt. Huys’ opinion that there was a “high degree of association between the left boot from [the appellant’s] car and the boot impression at the scene.” He explained that:

Within this method of classifying conclusions, “high degree of association” is the closest conclusion to a positive finding that the boot made the impression”. I am not bound by the classification system … nor am I bound by Officer Huys opinion. However, examining the evidence she examined and listening to her testimony I agree with her conclusion. The evidence comes extremely close to proving that the left boot from your car made the impression in [the complainant]’s home. [Emphasis added.]

[47] The trial judge then stated that he disbelieved the defence evidence in the context of the other evidence, concluded that the Crown evidence was overwhelming proof that he attacked the complainant, and found him guilty.

[48] It is not necessary to determine whether the trial judge’s view that the expert opinion came extremely close to proving that the left boot made the impression was, as the appellant argues, a misapprehension of evidence. The point is that, given the fact that this was the only Crown evidence, apart from the identification evidence, that the trial judge considered in his reasons, it clearly had significant importance for him. The discussion of the boot print evidence amounted to about one third of the reasons. In itself, that makes it more difficult to say that Sgt. Huys’ fresh evidence could not reasonably be expected to have affected the verdict.

[49] Moreover, the trial judge’s failure to scrutinize the other discrepancies and inconsistencies raised by the appellant exacerbates this difficulty.

[50] This is especially true in a case such as this in which eyewitness identification plays a significant role. The complainant’s description of her attacker, the composite photo, and her photo line-up evidence were reviewed and largely accepted by the trial judge. As this court explained in R. v. Gough, at paras. 35-36 and 2013 ONCA 137, triers of fact should treat eyewitness identification evidence with caution:

Being notoriously unreliable, eyewitness identification evidence calls for considerable caution by a trier of fact. It is generally the reliability, not the credibility, of the eyewitness’ identification that must be established. The danger is an honest but inaccurate identification.

The trier of fact must take into account the frailties of eyewitness identification in considering such issues as whether the suspect was known to the witness, the circumstances of the contact during the commission of the crime (including whether the opportunity to see the suspect was lengthy or fleeting) and whether the circumstances surrounding the opportunity to observe the suspect were stressful. [Citations omitted.]

[51] The trial judge appears to have considered the boot print evidence to be so significant that it was not necessary for him to carefully scrutinize the other evidence and, in particular, the manner in which the complainant had selected the appellant’s photo from the line-up. He did not review, much less critically examine, a great deal of the circumstantial evidence relied on by the Crown, including evidence of the appellant’s whereabouts, before concluding that the Crown evidence was “overwhelming proof” that the appellant attacked the complainant. I hasten to add that it is not necessary for a trial judge to consider every single item of evidence and explain how they resolved every single inconsistency. However, given that the boot print evidence is less probative of the appellant’s identity than Sgt. Huys indicated at trial, the rest of the evidence required greater scrutiny than they received in the reasons in order to sustain a conviction. There are a number of examples that illustrate this point:

• The appellant submitted at trial, and on appeal, that there were flaws in the manner in which the photo line-up was created, and in particular, that only a few of the photos were of men with “round” faces in accordance with the complainant’s description. The trial judge did say that he considered the line-up to have been adequate in this regard. However, the appellant also argues in this court that the photo line-up took place a number of months after the creation of the composite drawing which had been widely publicized, raising the possibility that the complainant was comparing the photos in the line-up to the composite she had in her mind rather than to the person she actually remembered.
• Several other landscaping companies in the area also used red trucks, which were frequently seen on the road the complainant lived on. The activity and locations of other red trucks were not investigated or ruled out.
• The complainant said she saw a red truck parked on the road, and also thought she had heard a vehicle backing out from her driveway after the attack, leaving open the possibility that multiple vehicles were present at the time.
• The appellant’s evidence was that he always wore black shorts to work, while the complainant described her attacker as wearing green cargo or khaki shorts.
• The complainant described her attacker as wearing a sweater or hoodie, but the appellant’s evidence was that he was not wearing a sweater that day as it was a hot day. He had also misplaced a sweater matching the complainant’s description the weekend before the incident.

[52] The respondent may well be right that, had the trial judge scrutinized the evidence as the appellant argues that he should have, the circumstantial case was so strong that the appellant would have been convicted nonetheless. But given the absence of reasons on so many of these discrepancies, it is not, in my view, possible to say that the fresh evidence could not reasonably be expected to have affected the result.

[53] The final consideration is that of due diligence. Although it is true that the evidence would have been available at trial had the defence retained and called Mr. Benton at that point, the appellant did provide an explanation. At trial, the appellant’s counsel was of the view that a cross-examination of the Crown’s expert would be sufficient to cause the expert to concede or change her opinion. Having reviewed the reasons while considering an appeal, the appellant’s appeal counsel decided to obtain another expert opinion. That report, which addressed some of the same issues raised by trial defence counsel on cross-examination, caused the Crown expert to revise her opinion and downgrade the level of similarity between the impression at the scene and the boot. In these circumstances, the concern for the broader integrity of the criminal justice system, even taking into account the need for finality in the trial process, leads me to conclude that there was no failure of due diligence to warrant a refusal to admit the fresh evidence: see C.B., at paras. 146-47.

[54] In summary, the admissibility of the revised opinion under the operative rules of evidence, its credibility, the emphasis of the trial judge’s reasons on the now-revised boot print evidence combined with the absence of sufficient analysis of the rest of the evidence at trial, and the explanation for the failure to tender this evidence at trial satisfy the criteria for admissibility of fresh evidence and the proposed evidence should be admitted.

[55] Admitting this evidence would not allow this court to dispose of the matter on appeal, as it is not so clear and conclusive to allow an immediate disposition in the form of an acquittal: see R. v. Stolar, [1988] 1 S.C.R. 480 and , at pp. 491-93; R. v. Hay, [2013] 3 S.C.R. 694 and 2013 SCC 61, at paras. 76-77. The revised opinion by the Crown’s expert could, however, have potentially altered the result at trial when considered with the other evidence in the case. The result is that a new trial must be ordered.

[56] In light of my conclusion as to the admissibility of the fresh evidence, I do not find it necessary to address the other arguments advanced on this appeal, including the trial judge’s conclusion that evidence should not be excluded under s. 24(2) of the Charter. This will be for the trial judge to decide at the new trial if this argument is renewed.

D. Disposition

[57] The fresh evidence is admitted. The appeal is therefore allowed, and a new trial is ordered.

Released: July 16, 2021 “J.C.M.”

“A. Harvison Young J.A.”

“I agree J.C. MacPherson J.A.”

“I agree Gary Trotter J.A.”