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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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.

COURT OF APPEAL FOR ONTARIO

DATE: 20230515 DOCKET: C70582

Fairburn A.C.J.O., Doherty and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

R.G. Appellant

Counsel: Richard Posner and Lance Beechener, for the appellant Baaba Forson, for the respondent

Heard: December 5, 2022

On appeal from the convictions entered by Justice Kathryn L. McKerlie of the Ontario Court of Justice on July 6, 2021, from the sentence imposed on April 29, 2022, [^1] and from the dismissal of an application to reopen the trial and for a declaration of a mistrial dated March 24, 2022.

Fairburn A.C.J.O.:

OVERVIEW

[1] A trial judge sitting without a jury has the jurisdiction to vacate an adjudication of guilt and reopen a trial prior to the imposition of sentence. For good reason, this is rarely done. In determining whether to invoke this jurisdiction, the trial judge will consider numerous factors, including whether the defence has exercised due diligence during the trial proper. In exceptional cases, the cogency of new evidence will be so strong that, despite a failure of due diligence, the interests of justice will demand that the finding of guilt be vacated and the trial reopened. This is one of those rare, exceptional cases.

[2] The appellant stands convicted of numerous offences arising from the sexual abuse of his daughter. The abuse is said to have started when the complainant was nine or ten years of age and lasted until she was just short of her 17th birthday. There were five separate time periods or incidents that formed the subject of the allegations.

[3] At trial, the appellant’s strategy was to challenge the complainant’s evidence using what were said to be multiple prior inconsistent statements and conflicting disclosures to different people. The defence also proffered a motive to fabricate, one rooted in the suggestion that the complainant disliked her father and was concerned that he and her mother may rekindle their relationship. The appellant did not testify.

[4] As reflected in the reasons for judgment, the verdicts turned largely, if not exclusively, on the trial judge’s acceptance of the complainant’s credibility. [^2] The appellant does not allege any error in the reasons for judgment.

[5] Between the verdict and sentencing, the appellant discharged his counsel and retained a new one. The new counsel moved to obtain the appellant’s cell phone records for a period of time that captured the last alleged offence. As the complainant’s phone was registered to her father’s Rogers Communications Canada Inc. (“Rogers”) account, her phone records were included in the package of documents returned from Rogers. The phone records were accompanied by an affidavit from a Rogers employee, explaining their meaning.

[6] As these reasons will detail, the phone records rest uneasily with some critical aspects of the complainant’s evidence at trial. Taken at their highest, the phone records suggest that the appellant was not at the location of the fifth alleged incident.

[7] Prior to sentencing, the appellant moved to reopen the trial and asked that a mistrial be declared. The trial judge dismissed the application and then put the matter over for sentencing. Ultimately, the appellant was sentenced to 10 years imprisonment less time served.

[8] On appeal, the appellant maintains that the trial judge erred in law in her ruling dismissing the application to reopen the trial. He argues that, had the trial judge applied the correct legal test to the new evidence, a different result would have followed. Therefore, the appellant asks that we set aside the verdicts and order a new trial, where all relevant evidence can be considered.

[9] For the reasons that follow, I would accede to this request.

Background

The Allegations

[10] The incidents of sexual assault span from sexual touching over the complainant’s clothes to forced sexual intercourse.

[11] Count 1 – From the fall of 2011 to December 2012, when the complainant was 9 and 10 years of age, the appellant is said to have touched her breasts and buttocks over her clothing and to have made sexually inappropriate comments about her body.

[12] Counts 3, 4 and 5 – The complainant testified that while at her grandparents’ home, when she was about 13 years of age, the appellant handcuffed her in a basement bedroom and subjected her to forced vaginal intercourse.

[13] Counts 6 and 7 – The complainant’s parents separated when she was 15 years of age. She testified that for a period following her parents’ separation, her father lived at the home of an acquaintance he knew from their church. She and her brother would visit the appellant at that home. She testified that when she was 15 years of age, the appellant had sexual intercourse with her in a spare bedroom at that home.

[14] Counts 8 and 9 – The complainant testified that, while at that same home, and still while she was 15 years of age, the appellant took her to the garage when she was visiting him one weekend, kissed her, sucked her breasts and then placed her naked into the storage area of his truck. She testified that he did not let her out of the truck until the morning.

[15] Counts 10 and 11 – The final incident is said to have occurred on October 3, 2019, when the complainant was just shy of her 17th birthday. The sexual assault was said to have taken place in a Tim Hortons parking lot. The complainant testified that her father called her and asked that she meet him at that location. Once there, he entered her car. The complainant said that he cut her with a knife, “just above the hairline of [her] vagina”, close to an incision from a prior recent surgery. She testified that he then directed her into the back seat of his truck, where he had forced sexual intercourse with her. I will refer to this fifth incident as the “Tim Hortons incident”. It is central to these reasons.

The Reasons for Judgment

[16] The trial judge provided detailed reasons for judgment. There is no challenge to those reasons on appeal.

[17] The reasons demonstrate that the trial judge well understood that the complainant’s credibility was not without its challenges. In cross-examination she was confronted with multiple prior inconsistent statements she had made to the authorities, to her mother, to her boyfriend and to her boyfriend’s mother.

[18] Some of the inconsistencies involved matters highly peripheral to the allegations. Others can only be described as of a central nature. By way of example, the trial judge identified two significant inconsistencies. First, in various statements to the police, the complainant did not discuss getting into the appellant’s truck during the Tim Hortons incident, yet in her trial testimony she said that the intercourse took place in his truck. Second, the complainant was inconsistent about whether there had been intercourse during the Tim Hortons incident. In her first statement to the police, she said there had been intercourse. Yet, in her next two statements to the police, she did not tell them there had been intercourse. She also told her mother that there had been no intercourse. Then in later police statements and at trial she said there had been intercourse.

[19] The cross-examination was lengthy and not without its challenges for all involved. At points, the complainant turned her camera off during the cross-examination, [^3] and refused to answer defence counsel’s questions (telling him she would not answer his questions until she felt like it).

[20] Despite the challenges that this trial presented, the trial judge had a good command over the courtroom. She was able to keep the trial moving forward and the witnesses and lawyers on task.

[21] The appellant did not testify. No other defence evidence was called.

[22] In her reasons for judgment, the trial judge carefully considered the complainant’s evidence against all of the evidence in the case. She spent significant time considering the nature of the contradictory and sometimes intermittent disclosures that had been made. She demonstrated a keen understanding of the fact that victims of sexual violence disclose in different ways and at different points in time. The trial judge was alive to this fact and expressed the well-accepted phenomenon that there is no one, expected way to disclose sexual violence. As the trial judge said:

There is no correct or typical way in which to report allegations of sexual abuse. It is often a burden that is not easily shed.

[23] Nothing in these reasons should be taken as challenging that inherently correct observation.

[24] Having considered all of the evidence, including the direct challenges to the complainant’s evidence, the trial judge explained why she nonetheless accepted that the complainant was telling the truth. In the end, having explained why she accepted the complainant’s version of events, the trial judge found the appellant guilty based on that evidence: “On the basis of the testimony of the complainant, which I do accept, I am convinced beyond a reasonable doubt” that the appellant was guilty of each offence, except the one that the Crown asked to be dismissed. To be sure, the verdicts turned on the acceptance of the complainant’s credibility.

[25] The matter was then put over for sentencing.

The Evidence in Support of the Application to Reopen and Set Aside the Verdicts

[26] Prior to sentencing, the appellant retained new counsel who brought an application to reopen the trial. The application rested on three affidavits that I will now briefly review.

Affidavit of Danielle Fortier: The Cell Phone Records

[27] Danielle Fortier is a manager working within the Rogers’ Lawful Access Response team. She swore an affidavit explaining the content of the appellant’s cell phone records which were attached as an exhibit to her affidavit (the “Fortier affidavit”). Those records spanned the billing period from September 13 to October 12, 2019. The records include entries for both the appellant’s and complainant’s phones as they were associated to the same account.

[28] The records attached to the Fortier affidavit are said to be important because they include two critical dates. First, they include the time period when the Tim Hortons incident was said to have taken place. Second, they include the time period when the appellant is said to have sexually assaulted the complainant on another occasion, an event that never formed the subject of a charge (the “uncharged incident”). The finer features of the phone records will be explained in more detail later in these reasons when I address the cogency of the evidence. For now, I will just provide the general context.

I Phone Records Informing the Tim Hortons Incident

[29] What is important for now is that there was and is no dispute about the following: (1) the appellant’s phone records do not support the complainant’s suggestion that the appellant called her to instruct her to meet him at the Tim Hortons; (2) the complainant’s phone records do not support her suggestion that she received a call from the appellant – or anyone for that matter – at the time when she says the appellant called her to instruct her to meet him at the Tim Hortons; and (3) the appellant’s phone was not near the geographical location where the Tim Hortons incident was said to have occurred at the time that it was said to have occurred.

II Phone Records Informing the Uncharged Incident

[30] A week before the Tim Hortons incident is said to have occurred, the complainant told her boyfriend’s mother about an incident that had taken place with the appellant about two weeks earlier. The boyfriend’s mother (a civilian) took contemporaneous notes of the conversation. Those notes formed part of the reopening application. The complainant told the boyfriend’s mother that the appellant had called her school and asked that she be released from class.

[31] When she emerged out the front door of the school, the appellant was standing in front of his truck. She told the boyfriend’s mother that he drove her to a gravel road, handcuffed her, had intercourse with her and then dropped her at home. The complainant also told the boyfriend’s mother that she went to a clinic later that day and told them that she had been “raped by her dad” and that the nurse “administered a rape kit [and] gave her the kids help phone number.”

[32] When the police investigated this matter, they were able to pinpoint September 16, 2019 as the exact date of the allegation. This date was arrived upon using school attendance records, showing all absences from class, and the complainant’s mother’s ability to account for every absence but this one.

[33] When the police interviewed the complainant about this alleged incident, the complainant said that her father had called the school and pretended to be her mother by changing his voice, saying, “Oh hi, it’s [mother’s name], I’m calling to sign [the complainant] out of school.” When asked how she knew that the appellant did that, the complainant said that this is what the appellant had told her.

[34] The complainant was asked by police whether what she told her boyfriend’s mother was true. While she continued to maintain that the sexual assault happened, she admitted that the story she had told about what followed the assault, specifically as it related to attending at a clinic and having a “rape kit” done, was not true. She said that she made that part of the story up because she wanted those she was speaking with to “shut up.” I refer to this admitted lie as the “clinic lie”. There was never a charge laid in relation to this alleged incident.

[35] Even though no charges were ever laid, the appellant points to phone records that are said to wholly contradict the complainant’s allegations about this sexual assault. In particular, the phone records show that the appellant’s phone never made the call suggested and, indeed, was well-removed from the geographical location where the sexual assault is said to have occurred when it is said to have occurred. The appellant says that these records raise additional, serious concerns about the complainant’s credibility.

Affidavit of Trial Counsel

[36] Trial counsel also provided an affidavit for purposes of the reopening application. Defence counsel explains that no one obtained the cell phone records: not the defence, the Crown or the police. Notably absent from counsel’s affidavit is any effort to explain why he failed to turn his mind to those records and attempt to retrieve them.

[37] In any event, trial counsel explains that had he obtained the records prior to or during the trial, it would have changed his strategy.

[38] Counsel did not advise his client to testify. If he had known what the records establish, he would have done so. In counsel’s view, the records are so powerful that they could have bolstered his client’s confidence when testifying. They also would have helped to establish what counsel describes as an “alibi” for the Tim Hortons incident.

[39] As well, counsel explains that the records clearly undermine the complainant’s credibility, revealing deep fabrications relating not only to the Tim Hortons incident, but also to the uncharged incident. He would have used the records to cross-examine the complainant on those matters.

[40] As for the uncharged incident, counsel acknowledges that he chose not to cross-examine the complainant in relation to it. Despite her admitted lie in relation to having attended at a clinic to have a “rape kit” administered – the clinic lie – cross-examining on this matter would have resulted in the complainant testifying about what she still maintained was a serious sexual assault in relation to the uncharged incident. Therefore, it is not surprising that counsel chose not to cross-examine on the clinic lie.

[41] Counsel attests to the fact that, with the independent phone evidence in hand, not only could he have exposed the serious clinic lie, but he could have also exposed the even more serious lie about the conduct that allegedly preceded the fabricated clinic visit. These matters are said to go to the heart of the complainant’s credibility.

Affidavit of the Appellant

[42] Finally, the appellant swore an affidavit.

[43] He has a criminal record for assault simpliciter, the victim being the complainant’s mother, for which he received a suspended sentence. He pled guilty to the charge. He also addresses the tumultuous relationship between them, a relationship to which the children were privy.

[44] The appellant suggests that if his counsel had advised him to testify, he would have done so. He also advises that he found the verdict “shocking” and “hard for [him] to process” because he has “never touched” the complainant for a sexual purpose. He denies having been in the small town where the Tim Hortons is on October 3, 2019.

[45] Following his conviction, not wanting to go to jail for crimes he “did not commit”, the appellant admits that he “foolishly decided to avoid coming to court” for his sentencing hearing. Accordingly, he removed his electronic monitoring device and left his surety’s residence. He was arrested shortly after and charged with breaching his recognizance.

[46] The appellant attests to the fact that his phone is passcode protected and was “continuously and exclusively in [his] possession and control.”

[47] The appellant claims that he used this phone as his “sole means of communicating with others, including [the complainant’s mother] and [his] two children.” He did not have a residence line. He further attests that he “would not have left [his] residence in Caledon, Ontario without [his] cell phone.”

Positions of the Parties on the Reopening Application

[48] The appellant urged the trial judge to reopen the trial. Ultimately, he was seeking a mistrial. While the appellant acknowledged that he had a problem with due diligence, this evidence clearly having been available prior to verdict, he maintained that the cogency of the records was so forceful that the verdicts could not stand.

[49] Notably, the trial Crown did not file any evidence at the application. Nor did the trial Crown challenge the defence evidence. Instead, the Crown took the position that the appellant’s evidence was weak and, in any event, he had a good deal of time to figure out his trial strategy and settled on a clear tactic: to attack the complainant’s credibility with the use of prior inconsistent statements and incremental disclosure.

[50] The trial Crown emphasized that the appellant knew he could testify and chose not to do so. He had pursued a clear trial strategy and it was too late in the day to reverse that strategy after it had proven to fall short. In any event, even if the application were to be granted, the trial Crown submitted that the remedy was not to declare a mistrial, but to set aside the verdicts, reopen the trial, and allow all new evidence to be called.

The Ruling

[51] Ultimately, the trial judge concluded that, while the cell phone evidence was admissible and had “potential probative value”, from a cogency perspective, it “would not be decisive or potentially decisive on its own.” As well, the appellant had chosen his trial strategy and the reopening application was a transparent attempt to reverse that tactical decision. The application was dismissed.

Analysis

The Law on Reopening

[52] Trial judges sitting without a jury are not functus officio until after sentence is imposed or the case is otherwise disposed of. To be sure, a trial judge sitting without a jury can vacate an adjudication of guilt prior to sentence or other final disposition: R. v. Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 73. But to be equally sure, this jurisdiction should be exercised only in “exceptional circumstances” where “its exercise is clearly called for”: Lessard, at p. 73. This is a rare power and no one should expect a do-over: R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at para. 23.

[53] Since the trial judge is operating within an area of discretion when deciding whether to reopen a case, the decision is entitled to significant deference on appeal unless of course the decision is infected by legal error, a material misapprehension of evidence or is unreasonable: R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109, at para. 55; R. v. Kippax, 2011 ONCA 766, 24 M.V.R. (6th) 1, at para. 64, leave to appeal refused, [2012] S.C.C.A. No. 92; and Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 777. Here, the appellant maintains that the decision is infected by legal error. I will explain those errors shortly below.

[54] The Palmer test for the admission of fresh evidence on appeal guides the analytical approach on applications to reopen. The four-part Palmer test, at p. 775 of that decision, is well-established:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief.

(4) The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[55] Over time, this test has been distilled into three helpful broad considerations: (1) is the evidence admissible under the operative rules of evidence (the admissibility component); (2) is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict (the cogency component); and (3) does the party seeking its admission offer a satisfactory explanation for the failure to adduce it at trial (the due diligence component): R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92.

[56] There is no dispute in this case that the cell phone records constitute admissible evidence. The core question was whether the cogency of those records outstripped the serious failure when it came to due diligence.

The Alleged Errors

[57] The appellant contends that the trial judge’s reasons dismissing the application to reopen reveal two errors. First, he says that the reasons reveal a clear legal error in how the trial judge considered the cogency of the proffered evidence. Second, he says that the trial judge erroneously placed excessive weight on the due diligence component. I will address the alleged errors in this order.

Cogency Error

[58] While the appellant acknowledges that the trial judge correctly summarized the law of cogency in the portion of her reasons entitled “Governing Principles”, he says that when it came to her application of those principles, she misstated the law. I agree.

[59] In the analysis portion of her reasons, entitled “Application of Governing Principles”, the trial judge considered the admissibility and cogency of the cell phone evidence in three short paragraphs. The first two paragraphs describe the cell phone records and address issues of admissibility, none of which was or is in dispute. Then, in a single sentence, she addressed cogency. This is what the trial judge said about the cogency of the cell phone evidence: “The cell phone evidence has potential probative value but would not be decisive or potentially decisive on its own.” In her concluding remarks, the trial judge came back to cogency and said this: “This is not a scenario where the cell phone evidence stands on its own or would be potentially decisive on its own.”

[60] I agree with the appellant that both statements reflect an erroneous approach. The question was not whether the cell phone records were “decisive or potentially decisive on [their] own.” The question was whether those records bore upon a decisive or potentially decisive issue at trial and whether, if believed, the records could reasonably, when taken with the rest of the evidence adduced at trial, be expected to have affected the result.

[61] Undoubtedly, the cell phone evidence bore upon two decisive issues at trial: (1) whether the Tim Hortons incident occurred, and (2) the complainant’s credibility, which was central to all of the verdicts: R. v. T.S., 2012 ONCA 289, 284 C.C.C. (3d) 394, at paras. 116, 133-37. To properly calibrate the cogency of the cell phone evidence, it was necessary to consider what those records could establish and whether, when taken with all of the evidence at trial, they could reasonably be expected to have affected the result.

Due Diligence Error

[62] The appellant says that the trial judge also erred by placing excessive weight on due diligence.

[63] Applications to reopen trials after findings of guilt have been made are deeply rooted in exercises of discretion. There is nothing in this case to suggest that the trial judge erred in reaching the conclusion that there had been a failure by the defence to exercise due diligence. The cell phone records were available to the defence all along; the Fortier affidavit could have been obtained; and the appellant could have testified with the benefit of those records bolstering his denials. All of that was in the control of the defence; none of it was pursued. That is what we call a failure of due diligence. Accordingly, I see no error in the trial judge’s general conclusion that the defence failed to exercise due diligence.

[64] At the same time, I cannot accept the trial judge’s repeated observation that the application to reopen was an attempt to reverse “tactical decisions made at trial.” While it is true that the appellant chose not to testify after the trial Crown closed her case, given the new evidence, it is clear that the appellant made that decision without knowing that, if he had taken the stand, the cell phone records could have provided some important corroboration for his denials.

[65] While one can certainly take issue with the defence failure to obtain the records, accurately described as a failure in due diligence, it is not accurate to say that the application to reopen the trial was an after-the-fact attempt to reverse earlier tactical decisions. This is because there was no strategic reason for why the defence would not have obtained and reviewed the cell phone records to consider whether to adduce them at trial. Indeed, no such reason is suggested by the respondent on appeal.

[66] Therefore, the reopening application was not an attempt to revisit an earlier tactical decision. Whatever caused the failure in due diligence – human error, oversight or otherwise – the problematic defence conduct is not rooted in a tactical decision. Accordingly, in the end, it really comes down to the fact that the failure in due diligence deprived the appellant of information that could have allowed the appellant to make more informed decisions about how to proceed on fundamental issues central to the trial.

Should a New Trial be Ordered?

[67] Given that the trial judge’s ruling contains significant legal errors – calibrating the cogency of the evidence through a faulty legal lens, which ultimately allowed the absence of due diligence to overwhelm the inquiry – it falls to this court to determine the impact of those errors on the analysis. There is no doubt that the Rogers records were admissible and spoke to decisive issues at trial. What now needs to be done is to calibrate the cogency of the new evidence by considering it in the context of the live issues at trial and then to determine whether the degree of cogency of the evidence compelled its admission despite the absence of due diligence.

Does the evidence bear upon a decisive or potentially decisive issue at trial?

[68] As already noted, the cell phone records bear upon two decisive issues in this case: (1) whether the Tim Hortons incident occurred, and (2) whether the complainant is credible.

Is the evidence reasonably capable of belief?

[69] Undoubtedly, the cell phone records are credible evidence. Indeed, cell phone records form the backdrop to many prosecutions, ones that are reliant upon establishing the general whereabouts of accused at certain points in time: R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 260, leave to appeal refused, (2012), [2011] S.C.C.A. No. 547 (Hamilton), [2012] S.C.C.A. No. 46 (Reid), [2012] S.C.C.A. No. 151 (Schloss), and [2012] S.C.C.A. No. 166 (Davis). There is no suggestion that the Fortier affidavit, appending the Rogers records, is anything but credible.

[70] As for the appellant’s affidavit, it was left entirely unchallenged by the Crown. While I completely discount his late-in-the-day denials of the offences, for purposes of this appeal, I would give weight to his evidence regarding the use he made of his phone.

[71] The appellant’s claims about how he used his phone are fully consistent with other aspects of the record on appeal. Specifically, I am referring to his claim that he had his phone “continuously and exclusively” in his possession and control and that he used it as his “sole means of communicating with others”, including the complainant. This assertion accords with a few pieces of evidence at trial and with other aspects of the record filed at the reopening application:

(1) The complainant’s mother testified that she communicated with the appellant, on that phone, at that number. This is the only number she had for him. (2) The complainant testified that this is how she communicated with the appellant, on that phone and at that number. (3) When the appellant was arrested in his vehicle, the phone was affixed to the dashboard of his truck. It was the only phone in his possession at the time of arrest. (4) The mother’s text communications, as elicited in evidence at trial, were with the appellant on that phone. (5) There were multiple events testified to at trial, and discussed with the police, that correspond to the appellant’s cell phone records, suggesting that he always carried that phone and used it as he says he did. For instance, the police were provided with information that the appellant was in the small town where the complainant lived on September 30, October 1 and October 4, 2019. His cell phone records match exactly with that information. In other words, the appellant’s phone registered on cell towers in and around the small town where the complainant lived on the very dates he was said to be there. That is, of course, with the exception of the Tim Hortons incident and the uncharged incident. (6) There is no evidence to suggest that the appellant ever used a different phone.

[72] Accordingly, for purposes of the appeal, I would accept the appellant’s unchallenged evidence respecting his phone.

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?

[73] This is where the respondent emphasizes that the appellant’s position falters.

[74] The respondent posits that the records do not account for the fact that the appellant may have called the complainant using a means other than a traditional phone call from one cell phone to another. Respectfully, I cannot accept this submission for several reasons.

[75] Again, the assertions made by the appellant in his affidavit stand unchallenged by the Crown. Likewise, the trial Crown chose not to cross-examine on the Fortier affidavit, attempting to elicit information about whether non-traditional means of communication would be missing from the cell phone records. Nor did the trial Crown proffer any evidence on this point.

[76] Additionally, there is no evidence in either the trial or application record to support the suggestion on appeal that the appellant could have used non-traditional means to communicate with the complainant. To the contrary, the complainant’s evidence was that she and the appellant communicated by phone, specifically, by “calling each other”.

[77] Finally, the cell phone records themselves stand in opposition to the suggestion that the appellant and complainant may have communicated other than through a traditional call from one cell phone to another. The records actually reveal occasions where these communications clearly took place.

[78] When looking at the cogency of the evidence, it is necessary to apply a qualitative lens, one that does not concern itself with the ultimate reliability and credibility of the evidence: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at paras. 50-51; M.G.T., at para. 52. Rather, we look to the potential (not actual) value of the evidence and place it within the context of the trial evidence that is said to be undermined. As noted by this court in Truscott, at para. 100:

The cogency inquiry requires a qualitative assessment of the evidence proffered on appeal. That evaluation must measure the probative potential of the evidence considered in the context of the entirety of the evidence admitted on appeal and heard at trial. If the fresh evidence considered in this context 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 explanation for the failure to lead that evidence.

[79] So, what do the cell phone records show us?

I Tim Hortons Incident: October 3, 2019

[80] Here is the context.

[81] I start with the observation that the Tim Hortons incident could have only occurred on October 3, 2019. There is no dispute about this date; nor could there be. We know this because of how the matter came to the attention of the police.

[82] The complainant told her boyfriend about what the appellant had done to her, the boyfriend told his mother and the mother went directly to the police. This was less than 24 hours after the alleged crime. Accordingly, unlike many crimes of this nature, where dates are understandably difficult to pin down, there is no dispute that the Tim Hortons incident is said to have occurred during the evening of October 3, 2019. So, that is the date that is relevant for purposes of the phone records.

[83] In setting the context, the next thing that I would note is what has already been referred to. There was a good deal of inconsistency in what the complainant told different police officers and others at different times about what had happened at the Tim Hortons parking lot. The inconsistencies went to the heart of the allegations, including whether there had been intercourse and whether she had entered the appellant’s truck.

[84] Importantly, the trial judge’s reasons speak to her concerns over the Tim Hortons allegations. Indeed, about half of the lengthy reasons for judgment are devoted just to that incident, demonstrating the length of time that the trial judge spent assessing and reconciling the complainant’s evidence respecting this incident.

[85] While the trial judge found it “difficult to reconcile the complainant’s disclosure of sexual intercourse in her father’s truck”, she ultimately accepted the complainant’s explanation for why she had been previously inconsistent in her version of events. That explanation included that the complainant found the initial period of disclosure chaotic and blurred and that she struggled to provide all details at once.

[86] I do not make these observations to cast any doubt on the trial judge’s findings. They were open to her to be made. My simple point in recounting the challenges that this evidence presented, is to highlight that the new evidence relates to an alleged incident that was already riddled, on the trial judge’s own account, with credibility concerns that cried out for resolution.

[87] Next, I review the complainant’s evidence as to what occurred in and around the Tim Hortons incident and then contrast it with the phone records.

[88] At trial, the complainant testified that she drove her mother’s car to pick her boyfriend up from work around 9:00 p.m. or shortly after. They hung out together until about 10:30 p.m. when she remembered receiving a call from the appellant. He asked: “Can you come and meet me at the old Tim Hortons?” He apparently asked her not to tell anyone.

[89] The complainant testified that she then dropped her boyfriend off without telling him where she was going. In her police statement, the complainant said that she hung out with her boyfriend for a further 15 minutes after the appellant’s call and then dropped him off and proceeded to the Tim Hortons. The complainant told the police that she met the appellant at about 10:45 p.m.

[90] Importantly, the complainant’s mother testified that the complainant was home by 11:00 p.m. that night. She felt sure about this because, if the complainant had been out past that time, the mother would have texted her daughter. There were no such text messages.

[91] In light of that evidence, there are four salient points that allow us to measure the potential probative value of the evidence considered in the context of the entirety of the evidence from the application to reopen.

[92] First, the appellant’s phone records show no call to the complainant’s phone on October 3, 2019. Indeed, the Fortier affidavit is clear that there are no connected calls between the complainant’s and appellant’s phones on October 3, 2019.

[93] Second, while the complainant’s phone record shows two calls on October 3, 2019, only one is an incoming call to the complainant’s phone. That call is received over two hours before she says she received the appellant’s call. Indeed, it is received before she even left her home to go and pick up her boyfriend from work. That call, which is from an unidentified number, lasted for 14 minutes in duration, much longer than an instruction to go to the Tim Hortons parking lot.

[94] Third, the appellant’s phone made and received numerous calls on October 3, 2019. At no time was his phone registering on a cell tower close to the town where the Tim Hortons incident is said to have occurred. To the contrary, the appellant’s phone received and made calls while registering on one or more cell sites in the local calling area of Toronto at: 7:55 p.m., 7:58 p.m., 8:39 p.m., 9:18 p.m. and 10:41 p.m. The appellant lived in Caledon. The Fortier affidavit demonstrates that the “‘Toronto’ local calling area encompasses several municipalities including Caledon Ontario.”

[95] Fourth, Google maps were filed at the application. They demonstrate that it would take a minimum of 1 hour and 13 minutes to drive between where the appellant lived in Caledon to the small town where the complainant lived and the Tim Hortons was located. The appellant’s home was covered by the “Toronto” calling area. The town where the complainant lives and where the crime is said to have occurred, is on a trajectory from Caledon away from the Toronto calling area.

[96] Therefore, to wrap up on this point, if it was the appellant using his password protected phone in the “Toronto” calling area on October 3, 2019, especially at 10:41 p.m., he was not at the Tim Hortons parking lot minutes later when the offence is said to have occurred. Nor do his records show him calling the complainant. Nor do the complainant’s records show receipt of a call from him.

[97] In my view, this is highly cogent evidence that, when taken with the other evidence adduced at trial, could be expected to have affected the result, at a minimum as it related to the Tim Hortons counts.

[98] I am not suggesting that there is no explanation for this evidence or that it may not be explained through other evidence. But the Crown chose not to challenge this evidence and chose not to rebut it with other evidence. In the circumstances, the evidence creates a significant concern about the safety of the convictions relating to the Tim Hortons incident. It also raises concerns about the most central issue at trial: the complainant’s credibility. This takes us to the cogency of the evidence as it relates to the uncharged incident.

II The Uncharged Incident: September 16, 2019

[99] The appellant also argues that the cell phone evidence undermines the complainant’s credibility at a more general level because it reveals that she was prepared to fabricate a serious sexual assault that never happened, an allegation where she had already been caught in a significant lie – the clinic lie.

[100] The key point for purposes of the reopening application is that, with the assistance of the complainant’s mother, police concluded that there was only one date on the school attendance records when this alleged offence could have occurred: September 16, 2019. The difficulty is that the appellant’s phone records do not support the complainant’s account, specifically that her father called her school, pretended to be her mother, and asked that she be released from the school.

[101] On September 16, 2019, the appellant’s phone did not call the complainant’s school and was nowhere close to the complainant’s school. Indeed, at the critical juncture, between noon and 5:30 p.m., the appellant’s phone was used many times, but it was using cell phone towers located in Toronto, Milton, and Orangeville, none of which are close to the town where the complainant attended school.

[102] While the September 16, 2019 incident was uncharged, I agree with the appellant that, left unexplained, the cell phone records could shake one’s confidence in the complainant’s account of what occurred. Notably, this is in relation to an alleged incident where the complainant had already admitted to a significant fabrication about attending the clinic.

[103] As her credibility was central to the verdicts in this case, the cell phone records from September 16, 2019 engaged with a decisive issue and could reasonably have been expected to have impacted the result.

The Application of Due Diligence

[104] Due diligence retains an essential purpose at reopening applications. Certainty and finality demand that everyone put their best foot forward at trial. Without a robust application of the due diligence criterion, trials would become trial runs, institutional concerns would abound, and victims would be endlessly revictimized. The integrity of the administration of justice simply cannot invite the relaxation of expectations that all, including defence counsel, advance their cases – their whole cases – the first time around.

[105] Therefore, as in Palmer, evidence should generally not be admitted on a reopening application where, through due diligence, it could have been adduced during the trial proper. At the same time, as this court and the Supreme Court have repeatedly noted, from time-to-time in criminal cases, failures to exercise due diligence will bend to cogency, especially where miscarriages of justice loom: R. v. Kowall (1996), 108 C.C.C. (3d) 481 (Ont. C.A.), at pp. 493-94, leave to appeal refused, [1997] 1 S.C.R. viii; R. v. Warsing, [1998] 3 S.C.R. 579, at p. 592; R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 8; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at paras. 64-67; and R. v. Reeve, 2008 ONCA 340, 233 C.C.C. (3d) 104, at paras. 83-89. In other words, due diligence is not a precondition to admissibility: Truscott, at para. 93. As noted by Rothstein J. at para. 67 of Hay, where the appellant sought the admission of evidence on appeal that his trial counsel had not inquired into:

In general, mere lack of knowledge on the part of trial counsel without any indication that he inquired into the possibility of obtaining and presenting the evidence is a factor against admitting the evidence for the first time on appeal: McMartin, at pp. 490-91. However, [since] this is a criminal case, involving charges of the most serious nature, I would not allow the evidence to be excluded solely [based on] a lack of diligence.

That is precisely this case.

[106] The complainant presented with significant challenges when it came to credibility. She was cross-examined at length on key aspects of prior inconsistent statements and the course of her disclosures. The trial judge did her duty, confronted those challenges and ultimately resolved them in favour of finding the complainant credible. Findings of guilt flowed directly from the resolution of those credibility issues.

[107] Then new counsel came on the record and obtained what had been obtainable all along but had not been inquired into. Understandably, the trial judge spent a significant portion of her reasons dismissing the reopening application on the defence’s failure on due diligence. I agree with the trial judge that “[w]ith the exercise of due diligence, the proposed evidence could have been adduced at trial and/or formed the basis for cross-examination of crown witnesses.” But that is not the whole picture.

[108] On a reopening application, the more cogent the admissible, credible new evidence is, the more due diligence will bend. This will only happen in very rare cases. As I see it, this is one of those very rare cases. Despite the clear lack of due diligence in this case, in the sense that the defence did not pursue what was pursuable, I remain focused on the fact that there is no plausible explanation for why the defence would not have obtained and reviewed this evidence. The failure to obtain and review this seemingly powerful evidence, which has been left unchallenged to date, in order to decide whether to adduce it at trial, simply cannot be described as a strategic choice.

[109] In my view, given the high degree of cogency attaching to the phone records, specifically as they relate to crucial issues that required determination at trial, this is one of those rare and exceptional situations where, in the interests of justice, the verdicts of guilt should have been vacated and the trial reopened.

Conclusion

[110] The respondent submitted at the oral hearing that, if this court is inclined to grant the appeal, only the verdicts as they relate to the Tim Hortons incident be set aside. I disagree.

[111] The fact is that while the evidence is highly relevant to the Tim Hortons incident, it is also directly linked to the complainant’s credibility, both on those counts and in general. As her credibility stood at the centre of each conviction, I would set aside all verdicts and order a new trial.

[^1]: No submissions were advanced on the sentence appeal. [^2]: The appellant was convicted on all counts except one that the trial Crown asked be dismissed. [^3]: This was a trial conducted in an online courtroom during the pandemic.

Released: May 15, 2023 “JMF” “Fairburn A.C.J.O.” “I agree. Doherty J.A.” “I agree. L. Favreau J.A.”