Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20221130 DOCKET: M51520 (C65661)

Pepall, Harvison Young and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

Haldane Smithen-Davis Appellant

Counsel: Alan D. Gold and Ellen C. Williams, for the appellant Samuel Greene, for the respondent

Heard: September 23, 2022

Pepall J.A.:

Introduction

[1] On March 2, 2018, the appellant was convicted of breaking and entering with intent to commit an indictable offence. This court dismissed his appeal from that conviction on October 24, 2019: R. v. Smithen-Davis, 2019 ONCA 917. He now brings an application to re-open his appeal and have the court admit fresh evidence. For the reasons that follow, I would dismiss his application.

Background Facts

[2] Shortly after midnight on December 7, 2012, three men broke into a Mississauga home. The homeowner shot and killed one of the intruders, Ibrahim Abukar. The other two fled, leaving behind a pair of shoes and a pair of gloves. The appellant’s DNA was found on the gloves. There were two contributors of DNA on the left glove and four on the right. DNA of the appellant’s co-accused, Jason Hamilton, was found on the shoes. There were four contributors of DNA on the shoes.

[3] At trial, the Crown’s case that the appellant and Mr. Hamilton were the perpetrators of the crime was based on circumstantial evidence, consisting of:

i. the DNA evidence;

ii. cell phone records and cell phone tower evidence showing that the appellant’s cell phone was in the vicinity of the home about 30 minutes before the break-in; and

iii. Blackberry Messenger text messages recovered from Mr. Abukar’s Blackberry revealing that he and two other individuals with the user/profile names “J....” and “Logix3” planned to rendezvous shortly before the break-in.

[4] Various pieces of evidence suggested that the appellant was “J....” and Mr. Hamilton was “Logix3”. The appellant had been known to others as “J”, “Jay” or “Jason”; “J....” communicated with Mr. Abukar about an early December party organized by the appellant’s friend, Dwight Grange; and the appellant was known to use “random” phone numbers and to use a Blackberry.

[5] Additional evidence showed that on December 13, 2012, the appellant purchased a ticket to leave Canada for the United Kingdom on December 16, 2012 (just over a week after the break-in). Although he was to return on January 14, 2013, he did not actually return to Canada until he was arrested and extradited in the spring of 2016.

[6] Neither the appellant nor Mr. Hamilton testified at trial.

[7] The trial judge rejected the piecemeal approach to the circumstantial evidence advanced by the defence and concluded that the cumulative effect of the circumstantial evidence led to an “almost irresistible” conclusion that the appellant was “J....”. The trial judge was not left with a reasonable doubt about the appellant’s guilt, and he convicted him along with Mr. Hamilton. Both received nine-year sentences.

[8] On appeal, the appellant argued that his conviction was unreasonable. He did not seek leave to admit any fresh evidence. He asserted that there were weaknesses in the circumstantial evidence relied upon by the trial judge and that the trial judge failed to account for other reasonably available alternatives.

[9] This court rejected those submissions. The panel dismissed the appeal from the bench with reasons to follow. In its reasons, which were released on November 21, 2019, the court addressed the appellant’s grounds of appeal and concluded that the trial judge’s findings were amply supported by the evidence. Moreover, the trial judge had reviewed the alternative inferences advanced by the defence and rejected them. The panel saw no basis on which to interfere with that determination.

[10] On January 17, 2020, the appellant changed lawyers. His new counsel made inquiries and determined that the order dismissing the appellant’s appeal had not yet been issued and entered.

[11] On April 27, 2020, the appellant filed an application to re-open his appeal against conviction. He proposed to adduce fresh evidence consisting of his evidence, and that of Mr. Hamilton, which denied the appellant’s participation in the home invasion.

[12] The Crown moved to have the application to re-open quashed on the basis that the court was functus officio and therefore lacked jurisdiction. In the alternative, the Crown argued that it was not in the interests of justice to re-open. The court dismissed the motion to quash: R. v. Smithen-Davis, 2020 ONCA 759 (“motion to quash”). Watt J.A., writing for the court, reasoned that the court was not functus officio given that the formal order had not been issued and entered, and as such, the court had jurisdiction to permit the re-opening of an appeal already heard and determined on the merits.

[13] As for the alternative submission, the outcome of the application to re-open would depend on whether the court decided to receive the new evidence proffered by the appellant. In its motion to quash, the Crown was unable to establish on the record, as it then existed, that the application to re-open had no reasonable prospect of success. There was no doubt that the fresh evidence was admissible under the governing rules of evidence, although its cogency was controversial as was the influence of the due diligence factor. The court concluded that the determination of admissibility of the fresh evidence should be made by the panel hearing the application on the basis of a mature record that included cross-examination of the affiants and other evidence. The Crown’s motion to quash was therefore dismissed.

The Fresh Evidence

[14] The appellant’s fresh evidence application includes affidavits from the appellant and Mr. Hamilton. The appellant's trial counsel, Monte MacGregor, swore affidavits in furtherance of a request by the parties.

[15] In his own affidavit, the appellant states that he was not involved in any home invasion or drug transaction on December 7, 2012, and did not leave gloves at the house. He did not recall what he was doing or where he was that day. He states that he was not the Blackberry Messenger user known as “J....”. His friends had previously called him by his nickname, Jason. He states that he did not generally use multiple cell phones, and that his wife called him 30 minutes before the alleged home invasion.

[16] Although he has a prior criminal record consisting of five convictions, he had not been convicted of any criminal offence for nearly 13 years. He describes himself as being 6 feet 4 inches tall and weighing about 300 pounds at the time of the offence. He lived with his mother-in-law on Dixon Road and met Mr. Abukar at a gym in an adjacent building. Mr. Abukar told him he was a business student at York University. They became friends. Mr. Abukar would often borrow clothing from him. Mr. Abukar told the appellant that he had become involved with an individual known as Twinkie, whom the appellant knew to be a well-known drug dealer. The appellant introduced Mr. Abukar to Dwight Grange. The appellant stated that he had only attended one party with Mr. Abukar, a party hosted by Mr. Grange at the Troika Lounge. At trial, Mr. Grange testified that he knew the appellant as Jay or Jason. Mr. Abukar’s brother also stated that he knew the appellant as Jay.

[17] The appellant asserts that he heard of Mr. Abukar’s death and the alleged home invasion on the news. He called Mr. Grange to discuss it but states that he did not provide any unique details of the death to Mr. Grange.

[18] The appellant planned his trip to the U.K. before December 7, 2012, and advised both the Scarborough court and his then probation officer of his trip prior to December 7, 2012. He was born in the U.K. and lived there for the first decade of his life. He has family there including his aunt who raised him and who was dying. He had a two-way ticket and states that he always intended to return to Canada.

[19] The appellant states in his affidavit that he met Mr. Hamilton for the first time at their first court appearance. He also states that at trial, he signed off on various agreed statements of fact without meaningfully reviewing them. There is at least one inconsistency between his affidavit and the principal agreed statement of fact. The agreed statement of fact states that his friend, Darren Nash, said that the appellant would contact him from “random” phone numbers whereas in his affidavit, the appellant says, contrary to Mr. Nash’s evidence, that he does not generally use multiple phones.

[20] Mr. Hamilton also swore an affidavit as part of the fresh evidence application. Indeed, the appellant states that his evidence is not being adduced in its own right, but in support of that of Mr. Hamilton.

[21] The appellant and Mr. Hamilton were each serving their sentences at Joyceville Institution in Kingston, Ontario. In late November of 2019, Mr. Hamilton encountered the appellant in the yard and told him he was willing to speak to the appellant’s counsel about his statement of events from December 7, 2012. He states that he did not expect to receive any benefit from providing the statement. He says he had not discussed the merits of the appellant’s case with him.

[22] Mr. Hamilton has a prior criminal record with 22 convictions. It includes a lengthy gap from March 21, 2000, to April or May 2019.

[23] He states that he met Mr. Abukar at a party and became acquaintances with him. Mr. Abukar performed marketing services for him. In late October 2012, Mr. Abukar advised Mr. Hamilton that he was being evicted from his home. Mr. Hamilton made him a short-term loan of $3,200. Mr. Abukar repeatedly assured Mr. Hamilton that he would repay the loan but did not do so. Mr. Hamilton would contact him repeatedly about the money over WhatsApp, by phone calls, and by Blackberry Messenger using the username “Logix3”.

[24] Mr. Abukar advised Mr. Hamilton between October and December of 2012 that Twinkie, whom Mr. Hamilton knew to be a well-known cocaine dealer, was setting Mr. Abukar up with work, he would be paid through this transaction, and Mr. Hamilton would receive his money soon. The two men texted one another about the timing of this drug transaction and about the repayment. A third participant whom Mr. Hamilton states he does not know, was present for some of the text messages and used the username “J....”.

[25] According to Mr. Hamilton, on December 7, 2012, Mr. Abukar told Mr. Hamilton that he would repay him that night and they met at a gas station. Mr. Abukar was in the passenger seat of a black sports car with a white female in the driver’s seat and a black male in the rear. Mr. Hamilton described this unknown man as being approximately 6 feet, 1 inch tall, with a skinny build and no significant facial hair. Mr. Abukar told Mr. Hamilton to follow them which he did and then saw them pick up Judah, an associate of Mr. Abukar whom he had met in July or August of 2012. Mr. Hamilton described Judah as being 6 feet, 3 inches tall with a slim build and no memorable facial hair. Mr. Hamilton continued to follow them to a home in a residential area in Mississauga where they pulled into a driveway.

[26] Mr. Hamilton states that he then observed the three men enter the home through the side door. After making inquiries of the female driver, Mr. Hamilton became impatient and approached the home to see what was taking so long. He states that he then heard gunshots and ran away, losing his shoes in the process. He believes the police tampered with the evidence as he maintains that he did not lose his shoe inside the home where he never stepped foot.

[27] He states that the appellant was not present on the night of the offence and was not one of the individuals at the home. Mr. Hamilton says he advised his then parole officer of this fact. [1] He also says that he first met the appellant at their first court appearance.

[28] At trial, Mr. Hamilton signed an agreed statement of fact. He states that it was drafted the morning of the trial, he signed it as instructed by his counsel, without ever reading it, and that he does not agree that it is true. He never told his trial counsel, John Struthers, the version of events he is now advancing because he was afraid his admission of being on the property on December 7, 2012 would result in his conviction. As with the appellant, there is a difference between Mr. Hamilton’s fresh evidence and the agreed statement of fact he signed at trial. Mr. Hamilton agreed at trial that the shoe with his DNA was found inside the threshold of the side door. He now swears that he was certain that he lost his second shoe on the road, not inside the side door. He states that he believes the police moved his shoe from the road to inside the side door of the home to strengthen their case against him.

[29] The appellant and Mr. Hamilton were cross-examined on their affidavits. In addition, the appellant waived privilege and the Crown obtained two affidavits from his trial counsel, Mr. MacGregor. Mr. Hamilton did not waive privilege although this court concluded that it was implicitly waived with respect to communications about the accuracy of the agreed statement of fact and how it came about: R. v. Smithen-Davis, 2021 ONCA 731. There is no affidavit from Mr. Struthers.

[30] In his affidavits, Mr. MacGregor states that the appellant was always clear with him that he was not at the residence where the break and enter occurred. In addition, Mr. MacGregor expressed confidently that the Crown’s case was circumstantial and that they could win without the appellant testifying.

Legal Principles

Re-opening an Appeal

[31] In R. v. Hummel, 2003 YKCA 4, 182 B.C.A.C. 93, which also involved a conviction appeal on the merits and an order that had not yet been entered, the Yukon Court of Appeal described the re-opening of an appeal at para. 3 as “an extraordinary power to be exercised rarely”. In Strichen et al v. Stewart, 2005 ABCA 201, 367 A.R. 188, at para. 5, the Court of Appeal of Alberta stated that “the general test for leave to re-argue requires exceptional, special or unusual circumstances.” In the motion to quash, Watt J.A. described the circumstances in which a court may permit the re-opening of an appeal as being closely circumscribed. As he noted at para. 35, “[t]he core question is whether the applicant has established a clear and compelling case that a miscarriage of justice will likely occur absent re-opening.” He went on to discuss factors a court might consider in deciding whether to permit the re-opening of an appeal previously argued and decided on the merits:

i. the principle of finality;

ii. the interests of justice including finality and the risk of a miscarriage of justice;

iii. whether the applicant has established a clear and compelling case to justify a re-opening;

iv. whether, in hearing and deciding the appeal on the merits, the court overlooked or misapprehended the evidence or an argument advanced by counsel; and

v. whether the error alleged concerns a significant aspect of the case. [Citations omitted.]

[32] An application to re-open involves a tension between the finality principle, which promotes the integrity of decisions already made on the basis of the merits of an appeal and the risk of a miscarriage of justice absent a re-opening of the appeal. Charron J.A., as she then was, described the former in R. v. Rhingo (1997), 33 O.R. (3d) 202 (C.A.), leave to appeal ref’d, [1997] S.C.C.A No. 274, at p. 214:

There are sound policy reasons for so limiting the power to reopen appeals. An unlimited discretion to reopen appeals that have been heard on their merits is not only unjustifiable as an ancillary power of the court, but would do significant harm to the criminal justice system. Finality is an important goal of the criminal process. Statutory rights of appeal provide a carefully crafted exception to the general rule that trial decisions are final. By providing broad rights of appellate review in criminal matters, Parliament recognizes that fairness and justice interests require that the accused have a full opportunity to challenge a conviction even though that opportunity will prolong the process. Once those broad appellate rights have been exercised and the merits of the appeal decided, then absent an appeal to a higher court, finality concerns must become paramount. Those affected by the process should be entitled to rely on the appellate decision and conduct themselves accordingly. The appellate process cannot become or even appear to become a never-closing revolving door through which appellants come and go whenever they propose to argue a new ground of appeal.

[33] I would also add that the finality principle is a particularly important factor in a case where the appeal was already dealt with on the merits but the court maintained jurisdiction as the order had not been entered.

[34] On the other hand, our system of criminal justice must avoid wrongful convictions. An appellant must establish a clear and compelling case to justify a re-opening: motion to quash, para. 36; Hummel, at para. 24 and R. v. Chow, 2003 BCCA 248, 182 B.C.A.C 88, at paras. 9 and 11, but a probing examination of the issues is required.

Fresh Evidence

[35] The proposed fresh evidence is key to the appellant’s application to re-open. Without the fresh evidence, there would be no reason to re-open. As Watt J.A. stated in the motion to quash, at para. 62, “[i]n this case, whether re-opening may be permitted, for all practical purposes, depends upon whether the court decides to receive the new evidence”.

[36] Watt J.A. also addressed the governing principles for admission of fresh evidence. He noted that under s. 683(1)(d) of the Criminal Code, R.S.C. 1985, c. C-46, the Court of Appeal may receive the evidence of any witness if the court considers it to be in the interests of justice to do so. He wrote at paras. 58-60:

Where the proposed new evidence relates to an issue of fact contested at trial, in this case, the respondent’s participation in the events charged, three factors govern the decision:

i. admissibility

ii. cogency: and

iii. due diligence.

See, Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92; Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 203.

Admissibility and cogency are conditions precedent which a proponent must meet before the proposed new evidence may be received. The new evidence must be admissible under the governing rules of evidence. To satisfy the cogency requirement, the new evidence must be:

i. relevant, in that it bears upon a decisive or potentially decisive issue at trial;

ii. credible, in that it is reasonably capable of belief; and

iii. probative, such that if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[37] Thus, to satisfy the cogency requirement, the evidence must be relevant, credible, and probative.

[38] When assessing the credibility factor, one asks whether the evidence is reasonably capable of belief: R. v. Litt, 2021 ONCA 510, at para. 30 and R. v. C.B., 2019 ONCA 380, 146 O.R. (3d) 1, at para. 134. The assessment of whether the evidence is reasonably capable of belief is conducted by the panel hearing the application on the basis of the paper record before it, which includes cross-examinations on the affidavits.

[39] The appellant submits that the court’s task is not to decide the evidentiary value of Mr. Hamilton’s and the appellant’s evidence. Rather, it is to decide whether a trier of fact will get to decide the evidentiary value of their evidence. Counsel submits that the question is whether the evidence could raise a reasonable doubt.

[40] The Crown submits that there must be a threshold credibility analysis and that the question is whether the evidence is reasonably capable of belief such that it is worth sending the case back to trial. The Crown rejects the reasonable doubt characterization advanced by the appellant. As stated in R. v. Dudar, 2019 ONCA 115, 371 C.C.C. (3d) 323, at para. 33, citing R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 271, at para. 50, the purpose of the inquiry “is not to determine the ultimate credibility of the evidence, but rather to assess whether the evidence is sufficiently cogent to warrant admission on appeal.” Dudar also described the analysis in R. v. Winmill (1999), 42 O.R. (3d) 582 (C.A.) stating at para. 36:

In R. v. Winmill (1999), 42 O.R. (3d) 582 (C.A.), this court again dismissed a fresh evidence application in part because it found that the proposed fresh evidence was not reasonably capable of belief. In that case, the appellant was convicted of first degree murder based on the evidence of three unsavoury witnesses, including the appellant’s son. On appeal, the appellant sought to admit the fresh evidence of a friend who did not testify at trial but who claimed that the appellant’s son, who had been present at the murder, had called the friend many times after the appellant’s arrest and told her the appellant had not committed the crime. Osborne J.A. noted, at p. 602, that he only needed to determine whether the fresh evidence was “reasonably capable of belief”, not whether he believed it:

In the determination of whether the tendered fresh evidence is reasonably capable of belief, we are required to engage in a form of credibility assessment. We must determine, not whether we believe the fresh evidence, rather, we must determine whether the fresh evidence is “reasonably capable of belief.” This was the determining factor in the decision to reject the fresh evidence in Palmer, supra. In Palmer, McIntyre J. made it clear that if the proposed fresh evidence does not pass the “reasonably capable of belief” test, “that ends the matter.” In my opinion, when exposed to the required scrutiny, Ms. Bacon's fresh evidence is not reasonably capable of belief.

[41] The appellant’s formulation casts too broad a threshold and would encompass all sorts of “never closing revolving door” cases akin to those contemplated by Charron J.A. (as she then was) in Rhingo. On appeal, there is no longer a presumption of innocence. The burden is on the appellant to establish that the fresh evidence is reasonably capable of belief. This involves “a form of credibility assessment” to ascertain whether the fresh evidence should be accepted. If the evidence passes the reasonably capable of belief threshold and meets the other elements of the fresh evidence test, the fresh evidence will be accepted.

Assessment of Fresh Evidence

[42] Turning to a consideration of the fresh evidence in the present case, clearly the evidence of the appellant and Mr. Hamilton is relevant and, if believed, could reasonably be expected to have affected the trial result. Their evidence, if believed, totally exonerates the appellant. It serves to support a conclusion that the appellant was not present at the scene and did not participate in the crime.

[43] Post-conviction evidence of the nature proffered may be true or may be readily fabricated. The type of evidence offered here is suspect because the appellant made a tactical decision to not testify at trial and also did not offer fresh evidence on appeal. That said, absent information from Mr. Hamilton, it is understandable that the appellant would opt not to testify at trial. The Crown’s case was circumstantial in nature and the appellant had a criminal record that consisted of five convictions, one of which was for break and enter and another of which was for possession of a concealed weapon. Moreover, as a co-accused, Mr. Hamilton was not a compellable witness absent severance of the trials: R. v. Clunas, [1992] 1 S.C.R. 595, at p. 609.

[44] The failure to seek leave to admit fresh evidence on appeal is not so clear cut. It would be obvious that, if the appellant’s version of events was to be accepted, Mr. Hamilton would be in a position to verify the appellant’s absence from the scene.

[45] On appeal, Mr. Hamilton took the position that the trial judge had erred both in his route to finding that Mr. Hamilton was Logix3 and in admitting text message evidence against him. At this stage of the proceedings, Mr. Hamilton was not conceding, as he does now, that he was at the scene of the crime. Although the appellant could have made a fresh evidence application on appeal, the likelihood of securing any cooperation from Mr. Hamilton presumably would be remote, as on appeal he was maintaining his position that he was not present at the crime scene. I do note, however, that the appellant proffers no evidence of any efforts made to obtain evidentiary support from Mr. Hamilton at the initial appeal.

[46] Nonetheless, although due diligence is a factor to consider in the fresh evidence application, it is not a condition precedent to the admission of fresh evidence: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 219. Standing alone, it should not serve to defeat the appellant’s application.

[47] However, fundamental to the analysis of both the fresh evidence and re-opening applications is the need for the evidence to be credible. Absent such a characterization, the fresh evidence application must fail. Put differently, even if the appellant can meet the due diligence requirement, a failure of the fresh evidence to meet the reasonably capable of belief factor is fatal.

[48] The core contested issue at trial was identity. Was the appellant one of the perpetrators of the home invasion? The appellant, who opted not to testify at trial, now attests that he was not. It would have been open to him to testify at trial to state that he was not present at, nor did he commit, the crime. He made a tactical decision not to testify. On its own this evidence would not meet the test for admission as fresh evidence because it could not pass the due diligence threshold.

[49] However, that evidence is given a foundation by the evidence of Mr. Hamilton. To repeat, in his affidavit, Mr. Hamilton now states that although he was present at the crime scene, he did not participate in the home invasion and the appellant was not present at all.

[50] The appellant submits that the Crown’s case at trial was based on an inferential chain of circumstantial evidence and was not so strong as to inevitably defeat the direct evidence now available from Mr. Hamilton and the appellant. Moreover, this is not a case where the two have nothing to lose from swearing their affidavits as they are not serving life sentences. Proof of perjury could add several years to their imprisonment and even an allegation of perjury could delay their parole.

[51] For the following reasons, I am unable to accept that the fresh evidence is reasonably capable of belief and meets the test for admission.

[52] To start, contextually, Mr. Hamilton’s credibility is undermined by his lengthy criminal record which includes many crimes of dishonesty over the course of many years. His 22 convictions include three convictions for forgery, fraud, obstruction of justice, four convictions for breaking and entering with intent to commit an indictable offence or attempting to do so, possession of break-in instruments, assault with a weapon, and possession of a weapon. Of course, his criminal record is not fatal but, it does provide contextual background. However, other evidence points to both inconsistencies and implausibilities in his evidence.

[53] His account that he was present at the crime scene but never went inside the home is contradicted by the physical evidence. Mr. Hamilton acknowledged that shoes containing his DNA were found at the crime scene. One was found inside the side door of the home and the other outside. He states that the police framed him by moving one shoe and placing it inside the home. However, Mr. Hamilton acknowledged that the police would have no idea whose DNA was on the shoes until after testing was conducted. It is simply implausible that the police intended to frame him by moving the shoe, which was photographed at the scene, when the police had no knowledge that the shoe revealed Mr. Hamilton’s DNA until after the testing had been conducted at a later date.

[54] At trial, both accused were represented by experienced counsel. I agree with the Crown that it is implausible that Mr. Hamilton did not share his version of events with his trial counsel because he was afraid it would place him at the scene and increase his chances of conviction. His shoes containing his DNA already would present this possibility.

[55] Mr. Hamilton states that he did not know the identity of the person “J....” with whom he was texting on the night of the home invasion. Mr. Abukar was found with a phone that showed he engaged in a three-way chat on the night of the home invasion with two others who used the names “J....” and “Logix3”. Mr. Hamilton admitted in cross-examination that he was Logix3. It is clear from the evidence filed at trial that Mr. Hamilton and “J.....” knew each other. There are direct communications between the two and in one message, “J....” states he is “here wit logi (sic)”.

[56] In cross-examination, Mr. Hamilton acknowledged that there was a chat amongst himself, Mr. Abukar and “J....” at 10:57:55 on December 6, 2012, and that this was not Judah with whom he had no direct communications. He said that the three of them were discussing Mr. Abukar’s drug deal, but one must question why Mr. Hamilton would be communicating about a drug deal with a person whose identity was unknown to him. Both Mr. Abukar’s brother and Mr. Grange gave evidence that the appellant was known as Jay or Jason. As this court concluded in the original appeal decision, there was ample evidence on which to determine that the appellant was “J....” and guilty of the break and enter charge.

[57] Much of the evidence at trial was adduced by agreed statement of fact. Both men now state that they signed off on the agreed statement of fact without reading or meaningfully reviewing it.

[58] Mr. Hamilton admitted on cross-examination that at trial, he was in court when both the Crown and his counsel stated that they were working on an agreed statement of fact. He also acknowledged going into a room with his counsel, Mr. Struthers, the appellant’s counsel, Mr. MacGregor, their assistants, and the appellant, where they went over the agreed statement of fact. In the presence of Mr. Hamilton, the Crown subsequently walked the court through the agreed statement of fact. This included the photographs depicting the location of the shoes containing Mr. Hamilton’s DNA.

[59] Mr. Hamilton’s explanation is that his experienced counsel put an agreed statement of fact before the trial judge that contained facts that Mr. Hamilton had instructed his counsel to remove. While not an impossibility, had this occurred, one would expect that this issue would have been raised earlier. Moreover, Mr. Hamilton never asserted ineffective assistance of counsel. Taken together with the rest of the evidence, Mr. Hamilton’s description of events relating to the agreed statement of fact is implausible.

[60] The remainder of Mr. Hamilton’s evidence also strains credulity. Mr. Abukar was a recent acquaintance of Mr. Hamilton whom he had known for only a few months. Mr. Hamilton resided with his mother and his income derived from the early stages of a clothing business he was setting up, which operated at a loss. He claims that he was nonetheless ready and able to lend Mr. Abukar $3,200. On the night of the home invasion, he drove from one end of Toronto to the other and back again following Mr. Abukar who collected various associates and then conducted what Mr. Hamilton says he believed was a drug deal. Again, it strains credulity that Mr. Hamilton would go to such lengths to recover $3,200 he had so readily lent to Mr. Abukar, would then approach the home that he had observed the others enter just when the gunshots were fired, and then in haste, leave his shoes behind.

[61] Taken as a whole, Mr. Hamilton’s evidence is not reasonably capable of belief. I would add that I also fail to see how it could raise a reasonable doubt, given its obvious shortcomings.

[62] I now turn to an assessment of the appellant’s evidence. Although Mr. Hamilton did not expressly waive solicitor client privilege, the appellant did.

[63] The fresh evidence on the issue of the agreed statement of fact is inconsistent and countered by the evidence of the appellant’s trial counsel, Mr. MacGregor. Mr. MacGregor was not cross-examined on his affidavit and his evidence is thus unchallenged. Mr. MacGregor reviewed the draft agreed statement of fact with the appellant on the phone and they discussed challenges and amendments they would make to the proposed document. Mr. MacGregor then sent the proposed amendments he had discussed with the appellant to the Crown. The next day, extra time was granted by the trial judge to enable counsel to “negotiate the contentious issues, finalize the [agreed statement of fact] and review the amended contents with the Appellant.” Mr. MacGregor testified that:

The Appellant reviewed the [agreed statement of fact] outside of court paragraph by paragraph with me as we read it together. After reading through the entire [agreed statement of fact] the Appellant signed off on its completeness approving it for its accuracy so that it could be submitted in court. The Appellant did not register any concerns or mention that he misunderstood any of the contents of the [agreed statement of fact].

[64] In contrast, the appellant states in his affidavit that he “signed off on various Agreed Statements of fact without meaningfully reviewing them.”

[65] The appellant’s account is also otherwise problematic.

[66] He states he was not present at the crime scene. His DNA was found on gloves left at the crime scene. He maintained that Mr. Abukar may have borrowed gloves from him to use at the gym, or the appellant may have borrowed gloves from Mr. Abukar to use at the gym. There are three difficulties with this evidence. First, Mr. Abukar was found at the crime scene wearing another pair of gloves. It makes no sense that the appellant’s gloves would be found at the scene. Second, their hand sizes were considerably different, the appellant’s glove size being XXXL or XXXXL and Mr. Abukar’s noticeably smaller. Third, the gloves found at the scene do not appear to be gym gloves but winter gloves.

[67] The appellant states in his affidavit that he does not remember what he was doing on December 7, 2012. He testified that in December 2012, he was working as a freelance personal trainer and may have been engaged at several gyms across the GTA. At any given time, he had between 5 and 40 clients with whom he met at all hours of the day and night. He claims not to have kept a calendar of appointments. At no time did he make any attempt to track down a potential alibi for the night of the robbery, even after his extradition back to Canada in 2016. This defies reason and detracts from his claim of innocence.

[68] In addition, the evidence on the identity of “J....” points to it being the appellant, in spite of his assertions to the contrary. As mentioned, several witnesses, including Mr. Abukar’s brother, provided evidence that they knew the appellant as “Jason” or “Jay”. The appellant introduced Mr. Abukar to Mr. Grange. Messages showed “J....” texting with Mr. Abukar in advance of a party hosted by Dwight Grange on December 3, 2012, advising of the location and dress code. A photograph shows the appellant, Mr. Abukar and Mr. Grange together at that party. Lastly, he expressed shock that Mr. Abukar was involved in crime yet he knew that, motivated by financial problems, Mr. Abukar became involved with a well-known drug dealer, Twinkie.

[69] As with Mr. Hamilton, taken as a whole, the appellant’s evidence is not reasonably capable of belief, and similarly, even if I were to accept the appellant’s characterization of the evidentiary threshold (which I do not), it is incapable of raising a reasonable doubt.

[70] It follows that the fresh evidence does not meet the requisite threshold.

[71] The application for a re-hearing of the appeal must also fail. Although the alleged error concerns a significant aspect of the case, the appellant has not established a clear and compelling case to justify a re-opening of his appeal, which was already decided on the merits. There is no risk of a miscarriage of justice and the interests of justice, including finality, favour the dismissal of the application to re-open.

[72] For these reasons, the application is dismissed as is the request to admit the fresh evidence.

Released: November 30, 2022 “S.E.P.” “S.E. Pepall J.A.” “I agree. A. Harvison Young J.A.” “I agree. J. George J.A.”

[1] In cross-examination, Mr. Hamilton confirmed that it was in the December, 2019 to January, 2020 timeframe when he was at Joyceville that he gave this information to his parole officer. He encountered the appellant in the Joyceville yard in November, 2019. In his cross-examination on the fresh evidence and re-open applications, the appellant denied that he and Mr. Hamilton came up with this “new story” when they were at Joyceville together.