COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kassa, 2013 ONCA 140

DATE: 20130308

DOCKET: C51984

Laskin, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hailemikael Kassa

Appellant

Catriona Verner, for the appellant

Alexander Alvaro, for the respondent

Heard: May 16, 2012

On appeal from the conviction entered on December 18, 2009 and the sentence imposed on April 12, 2010 by Justice Barry H. Matheson of the Superior Court of Justice, sitting with a jury.

Laskin J.A.:

A. introduction

[1] Early in the morning on January 5, 2005 someone strangled Sonia Gaudet to death in her Hamilton apartment. She was 54 years old. The Crown put forward a circumstantial case that the appellant, Hailemikael Kassa, was her killer.

[2] On December 18, 2009, a jury found the appellant guilty of second degree murder. On April 12, 2010 he was sentenced to life imprisonment with no eligibility for parole for 13 years. He appeals his conviction and the period of his parole ineligibility.

[3] The principal issue at trial was the identity of the killer. The Crown relied primarily on the evidence of the appellant’s girlfriend and mother of his two children, Megan Fitzpatrick. She testified that the appellant left her apartment between 2:00 and 3:00 a.m. on the night Sonia Gaudet was killed and returned around 5:00 a.m. with blood on his shirt and pants. According to Fitzpatrick, the appellant said that “something bad” or “something terrible happened to Sonia”. Later he threatened to stab Fitzpatrick in the stomach if she told the police what had happened that evening.

[4] The Crown also relied on two other pieces of circumstantial evidence: cigarette butts containing the appellant’s DNA found in the victim’s apartment; and a video showing that a man wearing clothing similar to the clothing worn by the appellant that night entered the lobby of the victim’s building at 2:11 a.m. on the morning of her death.

[5] The appellant did not call a defence. He contended that the Crown’s case at most showed that he was present in Sonia Gaudet’s apartment. It did not show that he had killed her.

[6] The appellant raises six grounds of appeal against his conviction. He also seeks leave to introduce fresh evidence. The six grounds of appeal are as follows:

• The verdict was unreasonable;

• The trial judge erred in relating the evidence to the key issue of identity, thus rendering the trial unfair;

• The trial judge erred by instructing the jury that they could rely on “speculation” and “conjecture”;

• The trial judge erred by failing to correct misleading portions of the Crown’s closing address;

• The trial judge erred in his instructions to the jury on the appellant’s post-offence conduct; and

• The trial judge erred by refusing to leave the defence of intoxication with the jury.

[7] However, the main issue on the appeal is whether we should admit the appellant’s proposed fresh evidence. After the appellant was convicted, Fitzpatrick recanted a critical part of her trial testimony. She claimed that the appellant did not say “something terrible happened to Sonia”. Later Fitzpatrick retracted her recantation and told the police that her trial testimony was true.

[8] The appellant submits that the fresh evidence concerning Fitzpatrick’s recantation should be admitted and a new trial ordered. He contends that Fitzpatrick’s recantation is reasonably capable of belief or, together with her later retraction, has substantial impeachment value in what was a tenuous Crown case. The Crown opposes the admission of the fresh evidence. It contends that Fitzpatrick fabricated her recantation, after having collaborated with the appellant. Therefore, admitting the fresh evidence would not be in the interests of justice.

[9] For the reasons that follow, I would not give effect to any of the six grounds of appeal from conviction. On the fresh evidence motion, I agree with the Crown and accordingly would dismiss that motion. Finally, I would not interfere with the 13-year period of parole ineligibility imposed by the trial judge.

B. relevant background facts

(1) The events in and around Sonia Gaudet’s apartment on January 4 to 5, 2005

[10] Sonia Gaudet lived in an apartment on the top floor of an 18-storey building at 95 Hess Street South in Hamilton. On January 4, 2005 a friend visited her around 5:00 p.m. and a neighbour saw her in the building around 6:00 p.m.

[11] At 8:30 p.m., a man named Blair Chamberlain saw Sonia Gaudet outside the building. Chamberlain delivered alcohol for a living, and Gaudet stopped him and asked him to buy her a magnum of wine. He did so. The bottle he purchased for her was in an LCBO plastic bag. He gave her the bottle but could not remember whether he also gave her the bag or took it with him. However, he said that generally his practice was to leave the bag. Gaudet told him that she had “people coming over”. Chamberlain left her apartment at about 9:40 p.m.

[12] Early in the morning on January 5, a man named Robert Mills arrived at the apartment building to deliver a newspaper. He testified that a tall, black gentleman was in the lobby with him. Mills did not clearly see the man’s face but did observe his clothing: he was wearing a hat or toque, a dark jacket, and jeans. The man entered the elevator and pushed one of the top two buttons. A surveillance video showed Mills and another man entering the apartment building at 2:11 a.m.

(2) Megan Fitzpatrick’s evidence about the relationship between the appellant and Sonia Gaudet

[13] According to Fitzpatrick, the appellant first met Sonia Gaudet when they both lived at 95 Hess Street South, though in separate apartments. She bought drugs from him, often calling him on Fitzpatrick’s cell phone.

[14] In 2002, the appellant slept on Gaudet’s couch for a few weeks. At the time, he and Fitzpatrick were dating.

[15] The appellant remained close with Sonia Gaudet until January 2003. At that time, Fitzpatrick noted that their friendship had ended abruptly. From January 2003 to the date of the offence, Fitzpatrick was not aware of any contact between the appellant and Gaudet.

(3) Fitzpatrick’s evidence about the events on January 4 and 5

[16] Fitzpatrick and the appellant met in January 2000, when she was 15 and he was 18 years old. Their relationship was volatile. They had two sons together but never lived together. However, the appellant often stayed with Fitzpatrick, occasionally for weeks at a time.

[17] On January 4, 2005 the appellant was staying with Fitzpatrick in her one-bedroom apartment. Fitzpatrick testified that they got into an argument about his infidelity, an argument that lasted two hours. The appellant was drinking. He was “aggressive”, “angry” and “very intoxicated”.

[18] In her examination-in-chief Fitzpatrick said that the appellant left her apartment between two and three in the morning; in cross-examination she agreed that he left at “approximately” three o’clock. He did not tell her where he was going. He was wearing a military type hat, a blue hoodie under a black jacket, jeans and white “Phat Farm” shoes. Fitzpatrick’s description of the appellant’s clothing generally matched the clothing worn by the man on the surveillance video with one exception: the man on the video was not wearing white sneakers.

[19] The appellant returned to Fitzpatrick’s apartment between five and six a.m., “closer to five”. He went to the bathroom, and Fitzpatrick heard the sound of running water. The appellant stayed in the bathroom for five minutes, went to the living room and then returned to the bathroom. He ran the water for another five to ten minutes. Fitzpatrick decided to see what he was doing. She testified that when she looked in the washroom, she could see that he was scrubbing his hands. He looked as if he had been in a fight. Blood was on his shirt, on the top of his pants and underneath his finger nails.

[20] Fitzpatrick asked the appellant what had happened. He muttered something. So she asked him again. He said “something terrible happened to Sonia” or “something bad happened to Sonia”.

(4) The discovery of Sonia Gaudet’s body

[21] At about 7:50 a.m. on January 5, firefighters entered Sonia Gaudet’s apartment. There was no sign of forcible entry. The living room was filled with heavy smoke. Gaudet lay dead on the floor. She had blood on the left side of her face and a horizontal ligature mark on her neck. She also had third degree burns to at least half her body. The fire investigator could not determine whether the fire started accidentally or was deliberately set. He did say that it had burned slowly, likely for more than two hours.

[22] Under a chair in the living room, police found a wicker basket containing a plastic LCBO bag. The Crown later argued that this was the same bag in which Chamberlain brought Gaudet the magnum of wine. In the bag were five cigarette butts. Four of the butts had a mixture of saliva containing both Gaudet’s and the appellant’s DNA. The fifth butt had only the appellant’s DNA.

(5) The autopsy

[23] Dr. Fernandes conducted the autopsy. He concluded that Sonia Gaudet died of “external neck compression” – likely she was strangled with a ligature from behind. He found a “heavy nasal discharge of blood and fluid as well as from the mouth”. He said that in ligature strangulations blood loss is very common. It results from a build up of pressure in the head.

[24] Dr. Fernandes estimated that it could have taken several minutes for Gaudet to die by strangulation. It may have taken 15 to 20 minutes before she stopped all movement. Her own blood was found on the top she was wearing, suggesting she had struggled when the ligature was applied.

(6) The appellant’s post-offence conduct

[25] On January 5, Fitzpatrick and the appellant watched the noon news on a Hamilton television station. When the story about the fire in an apartment at 95 Hess Street South came on the news, the appellant left the room. He returned five to fifteen minutes later.

[26] Later in the day the phone rang in Fitzpatrick’s apartment. She checked the call display and told the appellant that the Hamilton police were calling. He “got up real fast, put his shoes on and ran out the door”, saying “shit, oh shit”. At the time, the appellant was on probation and a term of his probation prohibited him from associating with Fitzpatrick. Having let the phone ring through, Fitzpatrick called the police back and the officer told her that he had dialled the wrong number. The appellant returned to Fitzpatrick’s apartment about 15 minutes later.

[27] Fitzpatrick saw the appellant’s clothes with blood on them in a grocery bag. On January 6, the appellant told Fitzpatrick that he was going to his mother’s house. He took the bag with his bloodied clothes. This was unusual as typically Fitzpatrick did the appellant’s laundry. She never saw the clothes again.

[28] A few weeks later, Fitzpatrick and the appellant had an argument. She threatened to go to the police and tell them what she had seen in the early morning of January 5. He told her that if she did that he would stab her in the stomach.

(7) The appellant’s statements

[29] The police met with the appellant on March 23, 2005. They told him that they wanted to speak to him about an investigation but did not say what they were investigating. He volunteered: “I guess this is about the Hess Street murder”. One of the officers asked him why he said that. He replied that he had known Gaudet.

[30] Later, the appellant gave a statement at the police station. The police asked him when he had last had contact with Gaudet. He said that he last saw her in front of her building in December 2004. Then they asked him when he was last in her apartment. He answered that “it was a long time ago”, probably “in November 2004. Finally the police asked the appellant why someone would have murdered Sonia Gaudet. He ventured that “maybe she ripped somebody off, I don’t know”.

C. grounds of appeal

(1) Was the verdict unreasonable?

[31] The appellant submits that the jury’s verdict finding him guilty of second degree murder was unreasonable. He argues that the Crown’s case did no more than put him at the scene. As a matter of law, where the evidence shows no more than presence at the time of the offence, a verdict will be reasonable only if there is evidence that the accused had the exclusive opportunity to commit the crime. See R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at pp. 188-9.

[32] The appellant says that there is no evidence he was alone with Sonia Gaudet in her apartment at the time she was killed. He points to the magnum of wine she brought, suggesting others were present that evening, perhaps individuals living in other apartments in the building.

[33] I do not agree with the appellant’s argument. I accept Mr. Alvaro’s position that the Crown’s case did not depend on showing exclusive opportunity. The Crown mounted a circumstantial case to show that the appellant was the murderer. Where evidence establishes presence or opportunity, but not exclusive opportunity, the Crown may seek to prove the accused’s guilt by relying on other inculpatory evidence. McIntyre J. made this point in Yebes, at pp. 188-9:

It may then be concluded that where it is shown that a crime has been committed and the incriminating evidence against the accused is primarily evidence of opportunity, the guilt of the accused is not the only rational inference which can be drawn unless the accused had exclusive opportunity. In a case, however, where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice. This was the view expressed by Lacourcière J.A. in R. v. Monteleone (1982), 1982 CanLII 2162 (ON CA), 67 C.C.C. (2d) 489 (Ont. C.A.), at p. 493, where he said:

It is not mandatory for the prosecution to prove that the respondent had the exclusive opportunity in a case where other inculpatory circumstances are proved.

It is also supported by further comments of Martin J.A. in R. v. Stevens (1984), 1984 CanLII 3481 (ON CA), 11 C.C.C. (3d) 518, at p. 534 et seq., and see, as well, Imrich v. The Queen, 1977 CanLII 27 (SCC), [1978] 1 S.C.R. 622, per Ritchie J. at p. 627.

[34] Here, there was other potentially inculpatory evidence beyond the evidence pointing to the appellant’s presence at the scene. That other evidence included the following:

• Fitzpatrick’s evidence that the appellant said “something bad” or “something terrible happened to Sonia”;

• The appellant’s post-offence conduct in disposing of the clothing he wore that night, and then threatening to stab Fitzpatrick in the stomach if she told the police what she had witnessed when the appellant returned to her apartment; and

• Fitzpatrick’s evidence that she saw blood on the appellant’s clothing, which could possibly be traced to the blood coming out of Sonia’s nose and mouth while she was being strangled.

[35] On the basis of this evidence and the other evidence from which it can be inferred that the appellant was in Sonia Gaudet’s apartment that evening (especially his DNA on the cigarette butts and the video of the man resembling the appellant in the lobby), I am satisfied that the verdict was one a jury, properly instructed and acting reasonably, could reach. It was therefore not unreasonable. Accordingly, I would not give effect to this ground of appeal.

(2) Did the trial judge err in relating the evidence to the issue of identity, rendering the trial unfair?

[36] The appellant submits that in relating the evidence to the issue of identity the trial judge made two errors. First, he related only the evidence pointing to the appellant’s guilt; he failed to relate any of the evidence pointing to a finding of not guilty. Second, the trial judge failed to relate any evidence that went beyond the appellant’s mere presence in Sonia Gaudet’s apartment. I do not agree with either point the appellant raises.

[37] On the first point, the trial judge told the jury that identity was the key issue in the case. He instructed them that to find the appellant guilty, they had to conclude the Crown had proven beyond a reasonable doubt that the appellant caused Sonia Gaudet’s death. He then reviewed in some detail the evidence favouring the Crown’s position and the defence’s position.

[38] The trial judge pointed out the following evidence and lack of evidence favouring an acquittal:

• The lack of evidence from Sonia Gaudet’s apartment that implicated the appellant as the person who strangled her to death;

• The lack of any forensic evidence implicating the appellant – no fingerprints, phone records, or DNA placing the appellant in Sonia Gaudet’s apartment at the time she died;

• The evidence from the fire marshal and firemen that neither the time the fire started nor whether it was accidental or set deliberately could be determined;

• The absence of evidence of how many LCBO bags were in Sonia Gaudet’s apartment;

• The expert evidence that the appellant’s DNA on the cigarette butts could have been deposited months before Gaudet was killed and was not necessarily deposited at the same time as Gaudet’s DNA;

• The video of the lobby of Sonia Gaudet’s building had no probative value because the quality was poor and the timing was wrong; and

• Fitzpatrick’s evidence about the amount of blood she saw on the appellant’s clothing when he returned to her apartment was “wholly inconsistent” with the expert blood evidence.

[39] This review fairly lists much, if not all, of the evidence (and lack of evidence) raising a reasonable doubt whether the appellant was the killer.

[40] On the appellant’s second point, the trial judge clearly told the jury that to convict the appellant, they had to determine beyond a reasonable doubt that he was the killer. The trial judge related the evidence relied on by the Crown pointing to the appellant as the killer and then, as I have summarized, the evidence relied on by the defence to raise a reasonable doubt.

[41] I would not give effect to this ground of appeal.

(3) Did the trial judge err by instructing the jury that they could rely on “speculation” and “conjecture”?

[42] The appellant argues that the trial judge improperly invited the jury to rely on “speculation” and “conjecture” when assessing the Crown’s evidence. He complains about two passages in the trial judge’s charge.

[43] The first passage is found in a portion of the trial judge’s charge on the appellant’s post-offence conduct. In instructing the jury on the possible reasons why the appellant left Fitzpatrick’s apartment when the telephone call display showed that the Hamilton police were calling, the trial judge said:

You have heard evidence [regarding the appellant’s conduct] after the offence was committed and here are some of them, and I am just going to recite them. We had the question of Mr. Kassa leaving the apartment because of the call display saying that the Hamilton Police were calling. It could be because he was worried about this matter, or that it was because he was on probation for assaulting Ms. Fitzpatrick, one of the terms of which was that he should not be with Ms. Fitzpatrick. There are two explanations. It would be most difficult for you to speculate on which of the two if was. Was it because he shouldn’t have been in the apartment and the police were coming over and he would be in breach, or was it because of the offence, or maybe even a third matter. But you should consider all of that evidence. [Emphasis added.]

[44] This complaint has no merit. The trial judge used the word “speculate” to suggest to the jury that they would have difficulty determining the real reason the appellant left the apartment. If anything, the trial judge’s comment benefited the appellant.

[45] The second passage is found in the portion of the charge where the trial judge dealt with the Crown’s theory. The trial judge said:

That is the position that the Crown has taken. There are a number of conjectures and findings that are there. You do not have to accept them or not but that is the argument of the Crown or the position and theory of the Crown.

[46] It would have been preferable had the trial judge not used the word “conjectures”. But it was an isolated reference and, in the context in which the trial judge used the word, a harmless one.

[47] I would not give effect to this ground of appeal.

(4) Did the trial judge err by failing to correct portions of the Crown’s closing address?

[48] The appellant submits that in his closing address to the jury, Crown counsel mischaracterized some of the evidence and misstated the burden of proof. The appellant says that the trial judge should have corrected these misstatements and erred by failing to do so.

(i) Alleged mischaracterization of the evidence

[49] The appellant’s complaint is really about the inferences the Crown asked the jury to draw from the evidence. In my opinion these inferences were reasonably available. I think that is evident from examining four parts of the Crown’s closing to which the appellant objects.

(i) The appellant argues that the Crown asked the jury to speculate in order to reconcile Fitzpatrick’s evidence that the appellant was wearing his white shoes with the evidence that the person on the video was not wearing white shoes. The Crown said to the jury: “I submit to you that because she saw them being washed with bleach the next day they went into her memory bank as having been worn the night before by the accused when he left after their fight.”

[50] Apart from the shoes, the clothing worn by the man on the video was very similar to the clothing Fitzpatrick described the appellant as wearing. The Crown was entitled to argue to the jury that Fitzpatrick was wrong in her evidence that the appellant was wearing white shoes. Certainly there was no evidence that they were the only shoes he owned. Moreover, the Crown fairly told the jury “you cannot make a positive identification of the accused by looking at the video.”

(ii) Crown counsel suggested that the video showing an individual entering Sonia Gaudet’s building at 2:11 a.m. corroborated Fitzpatrick’s evidence. The Crown said “the timing is right, it’s eleven minutes after Megan estimates he left her apartment, she said between 2:00 a.m. and 3:00 a.m.” The appellant contends that this part of the Crown’s closing was unfairly prejudicial because in cross-examination Fitzpatrick estimated that the appellant left at around 3:00 a.m.

[51] However, I agree with Mr. Alvaro that the Crown was entitled to ask the jury to accept Fitzpatrick’s evidence-in-chief that the appellant left between 2:00 a.m. and 3:00 a.m.

(iii) Crown counsel suggested to the jury that the appellant had a motive to kill the deceased: “she ripped somebody off”. The appellant argues that there was no evidence to support the Crown’s theory. In other words, the Crown’s suggestion was pure speculation.

[52] I do not think that, in context, the Crown’s suggestion was unfair. Crown counsel relied on the appellant’s own statement to the police: “maybe she ripped somebody off”. From this statement the jury could reasonably infer a motive. Moreover, the Crown also told the jury that no one knew why the appellant went to Sonia Gaudet’s apartment, though he probably went to sell her drugs as he had done in the past.

(iv) Crown counsel told the jury that Sonia Gaudet was “desperate” for money that day. The appellant submits that there was no evidence reasonably supporting that inference.

[53] I do not agree. Evidence was led at trial that Gaudet asked a friend for money and that this was unusual. Moreover, the friend was a casual acquaintance, who did not even know Sonia Gaudet well enough to know that she was involved in drugs. The Crown was entitled to ask the jury to infer that Gaudet desperately needed money, if she took the unusual step of asking for money from a casual friend.

(ii) Alleged misstatement of the burden of proof

[54] The appellant also submits that the Crown misstated the burden of proof in two ways. First, the Crown told the jury that the case against the appellant did not have to be proved to “a certainty”. I do not regard the Crown’s statement to be misleading. The trial judge told the jury that “certainty” meant “absolute certainty”, and I expect that is how the jury took the Crown’s statement.

[55] Second, the appellant contends that the Crown improperly told the jury that many other jurors have convicted accuseds of serious crimes. Crown counsel said: “the evidence in this case will convince you in the same way strong evidence has convinced other juries like you, juries who have convicted people of serious crimes.”

[56] The reference to what other juries have done on other cases was irrelevant and inappropriate. However, I do not think much turns on the reference. Any juror would be quite aware that some juries have convicted and other juries have acquitted an accused of murder.

[57] I would not give effect to this ground of appeal.

(5) Did the trial judge err in his instructions to the jury on the appellant’s post-offence conduct?

[58] In his closing address Crown counsel pointed to five pieces of evidence of post-offence conduct:

• The appellant left the room when a report of the murder was broadcast on the television news;

• The appellant left Fitzpatrick’s apartment when the police called the next day;

• The appellant told Fitzpatrick that if something happened to him, to remember that he loves her;

• The appellant put his clothes with blood on them in a bag beside the door and took them with him when he left; and

• The appellant threatened to stab Fitzpatrick if she told the police what she had witnessed.

[59] The appellant submits that most of his post-offence conduct had little or no probative value. It was as consistent with having breached the court order prohibiting him from having contact with Fitzpatrick as it was with his guilt for the offence charged. Thus, the appellant submits that the trial judge was obliged to give a “no probative value” instruction for most of the post-offence conduct. His failure to do so is a significant error.

[60] I do not agree with the appellant’s submission. The trial judge gave a careful and long instruction to the jury on the limited use of the appellant’s post-offence conduct. He specifically referred to the two pieces of circumstantial evidence from which any possible inference of guilt was the weakest: the appellant’s conduct when the television report of the murder was broadcast and his conduct when the Hamilton police called Fitzpatrick’s home. On the former example, the trial judge did give a “no probative value” instruction; and on the second example his instruction, which I have reproduced earlier, effectively neutralized that evidence.

[61] The other post-offence conduct – especially the most cogent example, the appellant’s threat to stab Fitzpatrick if she told the police what she had witnessed – was potentially relevant to the appellant’s culpability. A “no probative value” instruction would not have been appropriate.

[62] Accordingly, I would not give effect to this ground of appeal.

(6) Did the trial judge err by refusing to leave the defence of intoxication with the jury?

[63] Fitzpatrick testified that the appellant was “very intoxicated” when he left her apartment the evening Sonia Gaudet was killed. The Crown asked the jury to infer that the appellant shared some wine and likely drugs with Sonia Gaudet.

[64] The appellant submits that Fitzpatrick’s evidence and the Crown’s closing gave an air of reality to the defence of intoxication. Therefore, according to the appellant, the trial judge erred by refusing to instruct the jury on intoxication despite defence counsel’s request that he do so. I do not accept this submission.

[65] Intoxication may be relevant to the mens rea for murder because it may impair an accused’s foresight of consequences: see R. v. Lemky, 1996 CanLII 235 (SCC), [1996] 1 S.C.R. 757, paras. 16-17. In this case, the appellant argues that although he may have strangled Sonia Gaudet, because of his intoxication he may not have foreseen that he would cause her death.

[66] It seems to me that the trial judge was right not to leave intoxication with the jury because the evidence of the appellant’s drunkenness was not sufficient to give the defence an air of reality. Fitzpatrick’s evidence about the appellant’s drinking was vague. At one point she said he had “at least two drinks” and at another point said he had “a few 40-ouncers”. But she also said that when he returned home in the early morning hours, though he was still possibly intoxicated, he “wasn’t stumbling or anything”. At best, Fitzpatrick’s evidence suggested that the appellant was mildly intoxicated. However, “mild intoxication” is not a defence: see R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683, at para. 48; R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523; R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63; and R. v. Lemky.

[67] Moreover, the appellant led no expert evidence on his level of intoxication or its potential impact. And he gave no evidence about his drinking that evening. Finally, an intoxication defence conflicted with his fundamental defence that he did not kill Sonia Gaudet. For all these reasons, the trial judge did not err by refusing to leave the defence of intoxication with the jury.

D. the fresh evidence motion

(1) Introduction

[68] The appellant seeks leave to introduce as fresh evidence on the appeal Megan Fitzpatrick’s recantation of an important part of her trial testimony, her explanation for her recantation, her later retraction of her recantation and the evidence relating to that retraction.

[69] The appellant submits that the recantation is admissible as substantive evidence that he did not kill Sonia Gaudet. Alternatively, the appellant submits that the recantation and the retraction are admissible to impeach Fitzpatrick’s trial testimony, in which she implicated the appellant as Sonia Gaudet’s murderer.

[70] The Crown opposes the admission of the fresh evidence. The Crown submits that the recantation was false and was the product of collaboration between the appellant and Fitzpatrick. As the recantation was intended to subvert the course of justice, admitting the fresh evidence would not be in the interests of justice.

[71] To put these competing submissions in context I will briefly review the factual background giving rise to the motion and then the legal principles relating to fresh evidence of a recantation.

(2) Factual background

(i) The fresh evidence materials

[72] The fresh evidence consists of: a brief affidavit of the appellant to which he attaches a letter he received from Fitzpatrick on April 1, 2010 (the “one little lie” letter); an affidavit from a private investigator the appellant retained, which includes two statements given by Fitzpatrick to the investigator; the transcript of the cross-examination of the investigator; the transcripts of two cross-examinations of Fitzpatrick; letters and draft letters between the appellant and Fitzpatrick; and the affidavit of a police officer, which includes Fitzpatrick’s retraction of her recantation.

(ii) Fitzpatrick’s statements before trial

[73] I will briefly summarize Fitzpatrick’s statements before trial, as they assist in assessing her post-conviction evidence.

[74] Sonia Gaudet was killed on January 5, 2005. Ten months later, on October 26, 2005, Fitzpatrick gave her first statement to the police. She said that she had no memory of the night Gaudet was killed.

[75] On July 5, 2006, eighteen months after Gaudet was killed, the police came to Fitzpatrick’s apartment and brought her to the station for questioning. She gave another statement to the police and, for the first time, implicated the appellant in the murder. She said that she had lied the previous October because she feared the appellant. In her evidence at the preliminary inquiry and the trial, she essentially repeated, with some additional detail, what she had told the police on July 5, 2006.

[76] On November 30, 2009, just before the trial began, the police took another statement from Fitzpatrick. She told the police that she had been arguing with the appellant’s mother. Fitzpatrick told her that the appellant was violent. The appellant had told Fitzpatrick that he stabbed someone in the shoulder. This stabbing could have occurred on January 4 or 5, or a week earlier or a week later.

(iii) Fitzpatrick’s recantation

[77] The appellant was convicted on December 18, 2009. While awaiting sentencing he was incarcerated at the Hamilton-Wentworth Detention Centre.

[78] On March 31, 2010 Fitzpatrick sent the appellant a four-page handwritten letter – which counsel called the “one little lie” letter. The appellant received the letter on April 1. In the letter, Fitzpatrick expressed regret that at trial she had told “one little lie”. She did not say what the “lie” was. She told the appellant that she had wanted him to “suffer a little but not like this”. The letter read in part:

…I won’t say I said that 1 little thing as revenge, but moreso cuz in those days, I was still a lil scared of u, and thought u shoulda done more time for what you did to me, the justice system failed me there, and I kinda thought u shoulda been in for a longer period of time cuz what is a few months? That can’t change a person, so that was my only way.

Trust me, there was so many times I thought of comin clean, but I didn’t kno how after. To me, it’s like this, now this may sound bad, but 1st time, I say one thing, 2nd time I say this, and to come a 3rd time? Wow, I felt as if I woulda got arrested, and who was takin care of the kids?

That was my 1st time ever dealing with something like this, and I went overboard, just thinking of all the fucked up shit u did to me, has really corrupted my mind, and I’m not sayin that justify’s all the mess that’s occurred, but how do I deal with it? And the future is what scares me the most now, cuz the kids will either grow up thinkin that their father is a bad person, a murderer or they have a mother that is crazy and selfish that cuz of 1 little lie, their lives have been destroyed. [Emphasis added.]

[79] The appellant gave the letter to his lawyer, and his lawyer hired a private investigator to obtain a statement from Fitzpatrick. The investigator was Thomas Klatt, a former homicide officer with the Toronto Police Force.

[80] Klatt obtained two statements from Fitzpatrick, one on March 4, 2011 and the other on April 28, 2011. In both her statements Fitzpatrick said that her trial testimony was true with one critical exception: the appellant had not said “something terrible happened to Sonia”. Thus, Fitzpatrick recanted a key part of her testimony linking the appellant to the murder.

[81] On July 21, 2011, the police spoke to Fitzpatrick. She told them no one threatened her to recant. She said that the appellant had phone contact with her children and that she had received a couple of letters from him. She said that she was going to search for the letters she had kept. The next day she called the police and gave them two letters and a card from the appellant. She did not indicate that she had received any other letters from him.

[82] On September 27, 2011, both parties cross-examined Fitzpatrick. She continued to claim that the appellant had never said “something terrible happened to Sonia”. She said that she understood she was admitting to perjury and could be incarcerated.

[83] Fitzpatrick gave several reasons why she had lied at trial. One reason she gave was that she wanted to punish the appellant for his treatment of the children and for assaulting her in 2005. Another reason was that the police convinced her the appellant was involved in the murder and if he was involved Fitzpatrick felt he should be punished.

[84] During her cross-examination, Fitzpatrick revealed for the first time that she had received approximately 50 other letters from the appellant and that they were at home in a box.

(iv) The police search of Fitzpatrick’s home

[85] On September 29, 2011, two days after she had been crossed-examined, three male police officers came to her apartment with a search warrant. They thoroughly searched her home. They seized a large number of letters from the appellant to Fitzpatrick and drafts of letters from Fitzpatrick to the appellant. Fitzpatrick said that she was traumatized by the search. She claimed that one of the officers was unnecessarily rude to her and called her a liar.[1]

[86] During the search Fitzpatrick told the police “Mike isn’t worth it” and that she wanted to give another statement. The police explained her rights to her, advised her to speak to a lawyer, gave her the name of a defence counsel, and suggested it was better to give her statement at the station. After speaking to counsel, Fitzpatrick decided not to give a statement until she had a further chance to talk to her lawyer.

(v) Fitzpatrick’s retraction of her recantation

[87] On October 12, 2011, Fitzpatrick told the police that she was willing to give a statement. On October 17, she gave a statement, which was taken by Sergeant Reid. No promises were given to her about future charges, except that she would not be charged that day. Fitzpatrick said that Sergeant Reid “has always been respectful towards me” and she decided to “come clean”.

[88] Fitzpatrick said that her trial testimony was true. She had falsely recanted because she was raising two children by herself, she was not getting any support from the appellant’s family, and she felt some guilt for testifying against him.

[89] Fitzpatrick also explained how her recantation came about. She had written to the appellant and they started talking. He told her that she was the only person who could help him. She then came up with the idea of the “one little lie” letter.

[90] On November 16, 2011, Klatt tried to get a statement from Fitzpatrick. Their conversation was audio taped without her knowledge. She told Klatt that her trial testimony was true and that the appellant put “a little bit” of pressure on her to take back her statement.

[91] On November 23, 2011, both parties cross-examined Fitzpatrick for the second time. During the cross-examination, she maintained that her trial testimony was true. She said that she had falsely recanted because she wanted the appellant out of custody to help her raise the children, even though she did not want a relationship with him. The “one little lie” letter was a fabrication, written as part of a plan she had developed with the appellant to help him win his appeal.

(3) Legal principles

[92] Under s. 683(1) of the Criminal Code, R.S.C. 1985, c. C-46, an appellate court has discretion to receive fresh evidence on appeal “where it considers it in the interests of justice” to do so. The court’s broad discretion under s. 683(1) is structured by well-established criteria. See R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775; R. v. Babinski (1990), 1999 CanLII 3718 (ON CA), 44 O.R. (3d) 695 (C.A.); Reference Re Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92; and R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 45.

[93] Under this court’s formulation in Truscott and Snyder, the party seeking to introduce fresh evidence – in this case, the appellant – must satisfy three criteria. The appellant must show:

(i) The proposed fresh evidence is admissible under the rules of evidence for criminal trials;

(ii) The evidence is sufficiently cogent that it could reasonably be expected to have affected the verdict; and

(iii) The evidence could not by due diligence have been adduced at trial (this third criterion will not always be strictly applied in a criminal case).

[94] When the fresh evidence consists of a recantation by a key Crown witness, typically the appellant will have satisfied the first and third criteria, and the admissibility of the fresh evidence will turn on whether the second criterion, the cogency requirement, has been met. That is the case here. The recantation, the retraction and the evidence surrounding them are admissible under the rules of evidence. Neither the recantation nor the retraction existed until after the trial so they could not, even by due diligence, have been adduced at trial.

[95] Thus, the question on this motion is whether the fresh evidence is sufficiently cogent that it could reasonably be expected to have affected the verdict. Fitzpatrick’s recantation can meet this cogency criterion in either of two ways: it may be sufficiently cogent in the sense that it is reasonably capable of belief and therefore admissible as substantive evidence that the appellant was not implicated in Sonia Gaudet’s murder; or it may be sufficiently cogent in the sense that it can be used to impeach her trial testimony. Indeed, even a recantation that is false may, depending on the “totality of the circumstances”, have impeachment value: see Snyder, at paras. 53-54.

[96] Here, the appellant tenders his fresh evidence for both purposes: either as substantive evidence that he is not guilty or, at the very least, for its impeachment value. On either basis, he contends that the fresh evidence could reasonably be expected to have affected the verdict.

[97] However, the overriding standard for the admission of fresh evidence on appeal is “the interests of justice”. That overriding standard requires the court to consider how the recantation came about – more particularly to consider whether the appellant played any role in producing the recantation. If, on a rigorous assessment of the fresh evidence, the recantation is shown to be the product of collaboration between the appellant and the recanting witness, Fitzpatrick, or is unacceptably tainted by the appellant’s influence, then its cogency is so undermined that it would not be in the interests of justice to admit the fresh evidence. See R. v. Kelly (1999), 1999 CanLII 1968 (ON CA), 135 C.C.C. (3d) 449 (Ont. C.A.); application for leave to appeal quashed, 2001 SCC 25, [2001] 1 S.C.R. 741. The reason is obvious. An appellate court should not tolerate an appellant’s attempt to influence the evidence of a Crown witness.

[98] Is then the fresh evidence sufficiently cogent to be admissible, as the appellant contends, or is Fitzpatrick’s recantation a fabrication, the product of collaboration and thus inadmissible as the Crown contends?

(4) Cogency and the interests of justice

[99] From one perspective, Fitzpatrick’s trial testimony appears credible and reliable. She had nothing to gain by implicating the appellant in Sonia Gaudet’s murder and seemingly, much to lose. She loved him and she relied on him for support. If she had wanted falsely to implicate the appellant out of spite or vindictiveness or to punish him, one might have expected her to concoct a statement far less subtle than “something terrible happened to Sonia”. She could simply have said that the appellant told her he had killed Sonia Gaudet. Instead, she attributed to him a statement whose significance she likely did not understand when she disclosed it to the police.

[100] Yet from another perspective, Fitzpatrick’s trial testimony raised some concerns. The jury seems to have had difficulty with it. They asked for it to be reproduced in writing, and then they had to be exhorted before reaching a verdict.

[101] Moreover, Fitzpatrick’s trial evidence was not independently corroborated. Even the surveillance video was at odds with parts of her testimony. She claimed that the appellant was wearing his white running shoes; the man in the video did not have white shoes. And, although in her examination-in-chief Fitzpatrick said that the appellant left her apartment between 2:00 and 3:00 a.m., in cross-examination she agreed that he had left closer to 3:00 a.m.; the surveillance video showed a man entering the lobby of Sonia Gaudet’s building at 2:11 a.m.

[102] Viewed in the light of the concerns about Fitzpatrick’s trial testimony – and putting aside the Crown’s contention that her recantation was fabricated – the fresh evidence taken as whole would have substantial impeachment value. Indeed, it would provide several avenues to impeach the credibility of Fitzpatrick’s evidence at trial.

[103] The recantation itself, Fitzpatrick’s explanation of how it arose, why she “fabricated” her trial evidence, and her retraction of the recantation call into question her respect for the oath. Further, as even the Crown acknowledges, Fitzpatrick’s evidence in the fresh evidence proceedings is replete with inconsistencies – a fertile basis to challenge her credibility.

[104] The fresh evidence would also yield an opportunity to impeach directly parts of Fitzpatrick’s trial testimony and provide an alternate explanation for some of the more damaging evidence against the appellant. The most notable example concerns Fitzpatrick’s evidence that the appellant told her that he had stabbed someone. At trial she said that he told her the stabbing likely occurred a week before or a week after Sonia Gaudet was killed, though possibly it could have occurred the same night. However, when she was cross-examined during the fresh evidence proceedings, Fitzpatrick responded that the appellant told her he had stabbed someone the night Sonia Gaudet was killed. The timing of the stabbing is important; it arguably could account for the blood on the appellant’s clothing and even for some of his post-offence conduct.

[105] I would admit the fresh evidence for its impeachment value were I not persuaded that Fitzpatrick’s recantation was fabricated and the product of collaboration between her and the appellant. However, I have concluded that Fitzpatrick’s recantation was fabricated and that it resulted from collaboration between Fitzpatrick and the appellant or at least from the appellant’s unacceptable influence. Fitzpatrick confirmed that to be so in her retraction. But I would come to this conclusion even without considering the retraction.

[106] The first outward manifestation of Fitzpatrick’s recantation was the “one little lie” letter. Apart from Fitzpatrick’s comments to Klatt on November 16, 2011[2], there is no direct evidence that the appellant asked Fitzpatrick to write this letter – to recant – and no direct evidence that he overtly pressured her to do so. The “one little lie” letter was either Fitzpatrick’s idea, as she initially told the police, or the idea of both her and the appellant, as she later said in cross-examination. In my opinion, whatever its origin, it was the product of collaboration between the two of them or at the very least came about because of the appellant’s unacceptable influence. The letter was a concoction – a concoction that Fitzpatrick maintained, with the appellant’s encouragement, until the police searched her home in late September 2011.

[107] Many pieces of circumstantial evidence, taken together, overwhelming lead to this conclusion. The pieces of evidence I rely on are as follows:

• The appellant and Fitzpatrick had extensive communications with each other while he was incarcerated;

• The appellant and Fitzpatrick tried to hide the extent of their communication from the authorities;

• Fitzpatrick changed her story and recanted only after she had re-established contact with the appellant;

• The appellant “reconciled” with Fitzpatrick before March 31, 2010, the date she wrote the “one little lie” letter;

• The appellant made numerous promises to Fitzpatrick;

• The appellant had great influence over Fitzpatrick;

• The “one little lie” letter gives the false impression that Fitzpatrick had not spoken to the appellant since he was convicted; and

• Fitzpatrick retracted her recantation after the police searched her house on September 29, 2011.

(i) The appellant and Fitzpatrick had extensive communications while he was incarcerated

[108] While the appellant was in jail, he and Fitzpatrick had extensive contact with each other. They communicated in person, by telephone and in writing. Their communications took place both before and after Fitzpatrick wrote the “one little lie” letter, and at a time when both knew the appellant was appealing his conviction.

Visits

[109] In 2010 Fitzpatrick visited the appellant five times at the Hamilton-Wentworth Detention Centre – twice in February – that is, before she wrote the “one little lie” letter – and three times after she wrote the letter.

Telephone calls

[110] The Hamilton-Wentworth Detention Centre does not keep logs of telephone calls. However, in her post-conviction testimony, Fitzpatrick acknowledged that while the appellant was jailed there, they telephoned each other. While the appellant was in Millhaven (between May 5 and August 10, 2010), he telephoned Fitzpatrick regularly, using a telephone card. And while he was at Kingston Penitentiary (from October 30, 2010 to May 1, 2011) he placed 203 calls to Fitzpatrick, including a nine-minute call the day before Fitzpatrick provided her second statement to Klatt.

Correspondence

[111] The appellant and Fitzpatrick also exchanged a great deal of correspondence after he was convicted. The appellant disclosed to the Crown five letters from Fitzpatrick (including the “one little lie” letter) and said in his affidavit that she wrote him 20 letters. Fitzpatrick voluntarily turned over to the police two letters and a card from the appellant. However, when the police searched her home on September 29, 2011, they seized a large number of letters from the appellant to Fitzpatrick and drafts of letters from her to the appellant.

(ii) The appellant and Fitzpatrick tried to hide the extent of their communications from the authorities

[112] In support of his motion to admit fresh evidence, the appellant filed a brief affidavit. He confirmed receipt of Fitzpatrick’s “one little lie” letter and said that while incarcerated he had received 20 letters from Fitzpatrick. He turned over to the police the “one little lie” letter and four others. He did not disclose or explain the whereabouts or contents of the other letters. It could be inferred that these letters were destroyed or withheld because they undermined his position.

[113] Of more significance, the appellant did not disclose that before receiving the “one little lie” letter, he had already exchanged letters with Fitzpatrick, spoken with her on the telephone and met with her twice. The appellant and Fitzpatrick likely realized that if they disclosed these contacts they would put the recantation under great suspicion.

[114] Further, the appellant did not disclose that after he was moved to a penitentiary, he regularly sent Fitzpatrick letters and spoke to her many, many times.

[115] Fitzpatrick, too, appears to have tried to hide from the authorities her contacts with the appellant. Until confronted with the jail records, she told no one that she had visited the appellant at the Hamilton-Wentworth Detention Centre.

[116] In April 2011, Fitzpatrick told Klatt that she had spoken to the appellant only briefly by phone. In July 2011, she told the police that the appellant had talked to their children on the phone and that she had received a “couple” of letters from him. In her cross-examination on September 27, she claimed that from October 2010 to April 2011 she and the appellant “weren’t really speaking good terms”. Yet that was the very period during which the appellant spoke to her by phone over 200 times. Many of these calls were lengthy.

(iii) Fitzpatrick changed her story only after she had re-established contact with the appellant

[117] The appellant was convicted on December 18, 2009. In January 2010 before visiting him in jail, Fitzpatrick wrote him a letter that undermines the veracity of her later recantation. The appellant did not give this January letter to the authorities. However, the police found drafts of it when they searched Fitzpatrick’s home in late September 2011. In the letter, she writes to the appellant that she was telling the truth at trial, that he knew she was telling the truth, and that in testifying she did “the right thing”. Her draft letter reads in part:

I’ve been thinking about this a lot lately and I’m unhappy, sad and a lil angry that my name is all over the paper and I’m portrayed as vindictive. Mike, you should kno that this didn’t happen because of that. I kno that’s what a lot of people (your family) (your lawyer) are thinking, and I’m willing to deal with this NEGATIVITY because I kno, and you know what happened. And that’s all that matters to me at the end of the day.

It would really hurt me if that’s what you thought. You kno EVERYTHING you told me and you kno what u did. So I am here confused as to why I’m the only person being blamed. But, like I said, I’m willing to deal with it. Please believe when I say that I never thought this woulda been the end result. No one did. And when I heard, I cried + cried. People would call me crazy for feeling the way I do, but you are still the father of my kids. I’m tired of people telling me that I should be happy that you deserve this and I did the right thing. In the legal aspects I did, but other than that.

[118] On November 23, 2011, Fitzpatrick testified that she did eventually send a version of this letter to the appellant in January 2010. When asked what she meant by her comments in the draft, she replied:

That me and him both know, like, the truth. He knows what he told me. He knows at trial I was saying the truth…

[119] Then, Fitzpatrick visited the appellant in jail on February 19 and again on February 28, 2010. And she began having telephone conversations with him. Only after she had re-established contact with the appellant did she change her story and produce her recantation. The timing of the recantation alone gives rise to the inference that she and the appellant collaborated on it.

(iv) The appellant “reconciled” with Fitzpatrick before March 31, 2010, the date she wrote the “one little lie” letter

[120] The fresh evidence material strongly suggests that the appellant and Fitzpatrick had “reconciled” while he was at the Hamilton-Wentworth Detention Centre and before she wrote the “one little lie” letter at the end of March 2010. She visited him twice in February. In May he sent a card to celebrate their anniversary. In words enclosed by a heart shape, he wrote: “February + May, 3 months of luv”.

[121] Their reconciliation coincided with a plea from the appellant to Fitzpatrick – that she was the only person who could help him with his appeal:

I’m sorry if I made you lose sleep over what I said but we’re going through some hard times right now and it’s not easy to tell you how it is or how I’m feeling without it soundin mean or putting the blame on you. I don’t blame you for nothing and you know that. I’m just happy to be talking to you again and know your o.k. I just wish I would of tried to get a hold of you sooner and maybe things would be different. But it’s to late for that anyway. But I really need you right now. Your the only one who can help me. It puts you in a fucked up position but that’s the truth of it. If you don’t want to that’s fine. I’ll always love you no matter what. [Emphasis added.]

[122] Then on March 31, 2010, one day before he received Fitzpatrick’s “one little lie” letter, the appellant wrote to her, clearly responding to a previous letter she had written to him. What he said to her – the words he used – were hardly what one would expect him to say to a person mainly responsible for putting him in jail. He wrote:

Hey baby, Your letter made me feel so good. Every time I get one from you I feel so much better. And I love the pictures, your so beautiful. I love looking at you cuz your my wify and your so sexy. I can’t wait to be with you again. Baby, words can’t describe how much I love you. I usually got words for everything but for once I’m speachless to describe my love for you. It’s like you were made for me only. Your probably the best babymoms a nigga could have. I appreciate all that you have done and holdin it down while I was gone. The kids look fresh to def. I’m so blessed to have a girl like you. Nothing your doing or did for our family goes unoticed. I owe you the world and your gonna get yours, I promise. I know talk is cheap but all I got are words for now! [Emphasis in original.]

[123] The tender language of this letter makes no sense unless the appellant wrote it knowing that Fitzpatrick was about to recant her trial testimony. Moreover, by underlining the words “for now”, he implies he expects that he soon will be out of jail.

(v) The appellant made numerous promises to Fitzpatrick

[124] Even though Fitzpatrick’s testimony was the main reason the appellant was incarcerated, his letters to her contained numerous effusive expressions of his love for her and promises to her.

[125] The appellant promised to marry Fitzpatrick; he promised that he had “changed”, he was a “new person”, and he was a “better man”; he promised that he would be faithful and stop lying; he promised to respect her and stop being abusive to her; he promised to be a “family” and a good father to their children; and he promised to get a job and help support her and the two boys.

[126] One can reasonably infer that the appellant made these promises to bring Fitzpatrick onside and persuade her to carry out and maintain her recantation. He told her things he thought she wanted to hear, even though he may have had no intention of fulfilling these promises.

[127] Indeed, when the appellant made these promises to Fitzpatrick, he seems to have been carrying on a relationship with another woman, Ashley Dore. In his letter to Fitzpatrick on March 31, 2010, the appellant enclosed a letter Ms. Dore had sent him. He wrote to Fitzpatrick: “I’m only sending it cuz I love you and want to make you happy. But trust me I have no feelings at all for her and I don’t talk to her any more”. Yet Ashley Dore had visited the appellant at the Hamilton-Wentworth Detention Centre ten times and he tried to call her several times from the penitentiary.

(vi) The appellant had great influence over Fitzpatrick

[128] The numerous promises the appellant made to Fitzpatrick must be viewed in the context of the appellant’s great influence over her. By the time of trial, Fitzpatrick had known the appellant for 10 years. He was the father of her two sons. She relied on him for the support of these two children. And even though he had not been faithful to her, had been abusive towards her, and had shown little inclination to help her raise the children, her emotional bond with the appellant remained very strong.

[129] Fitzpatrick had no contact with the appellant between December 2005 and February 2010. Yet she obviously felt considerable guilt for having testified against him, and more important, she never stopped loving him. That she continued to love the appellant is evident in her letters to him while he was in jail. On June 18, 2010, she wrote: “I’ll never love anyone more than u ever”. A week later, she wrote again: “since the day I met u I haven’t been able to have love for anyone else…”

[130] As early as April 2010, Fitzpatrick wanted to marry the appellant. She became excited about the prospect of being his wife and having him in her life again. In an undated letter likely written in November 2010 she pledged her love to him, referred to him as “an addiction” and signed it “Megan Kassa”.

[131] One can readily infer that the appellant’s many promises to Fitzpatrick would have had great impact on a woman who was so emotionally vulnerable, so dependent on him for support, and so much in love with him. The appellant knew the impact of his promises and used them to obtain what he wanted: that Fitzpatrick recant her trial testimony.

(vii) The “one little lie” letter gives the false impression that Fitzpatrick had not spoken to the appellant since he was convicted

[132] Fitzpatrick wrote the “one little lie” letter on March 31, 2010. By then she had visited the appellant twice in jail and talked to him numerous times on the telephone. The letter does not mention these contacts at all. Instead, it conveys the false impression that Fitzpatrick had not spoken to the appellant since his conviction. Fitzpatrick writes:

Well, I’m writing this to you cuz of my feelings and the fact that u never got to hear my side of it all.

Then later in the letter she writes:

My life’s messed up, and it really pissed me off the last time I talked to you in 05, u said that if you couldn’t be with me, you were gonna forget about the kids.

[133] I agree with Mr. Alvaro that from these passages one can infer the letter was intended for an audience other than the appellant. Indeed, it is significant that in all the correspondence between the appellant and Fitzpatrick, no other letter contains any reference to Fitzpatrick’s having lied at trial.

(viii) Fitzpatrick retracted her recantation after the police searched her house on September 29, 2011

[134] The police searched Fitzpatrick’s house on September 29, 2011. Shortly afterward, Fitzpatrick decided to “come clean”. She retracted her recantation and affirmed that her trial testimony was true. The timing is no coincidence.

[135] During the search, the police seized letters and drafts of letters between Fitzpatrick and the appellant, which she had not previously disclosed. As I have said earlier, one of these draft letters was dated January 2010, before she had re-established contact with the appellant. In it she tells the appellant unequivocally that her trial testimony was true and he knew it to be true. As much as any other single piece of evidence this draft letter shows her later “one little lie” letter to be a fabrication.

(5) Conclusion

[136] Because Fitzpatrick’s recantation was fabricated and was the product of collaboration between her and the appellant or at least the product of the appellant’s influence, it does not meet the cogency criterion. Moreover, as the recantation was intended to subvert the course of justice, it would not be in the interests of justice to admit the fresh evidence. I would therefore dismiss the appellant’s motion.

E. the sentence appeal

[137] The trial judge imposed a period of parole ineligibility of 13 years, three years above the minimum. In imposing this period the trial judge relied on the following aggravating considerations:

• The way Sonia Gaudet was murdered: “by strangulation which took place over a number of minutes, maybe as much as five”;

• The appellant’s extensive criminal record;

• The appellant’s several breaches of probation orders;

• The appellant’s attempt to hide his clothing; and

• The appellant’s threat to stab Megan Fitzpatrick if she disclosed to the police what she had seen.

[138] The appellant argues that the trial judge erred in principle by relying on the manner of death as aggravating because the Crown did not prove beyond a reasonable doubt that the strangulation lasted for several minutes. The appellant submits that as he is a youthful offender (23 years old when Sonia Gaudet was killed), with a supportive family and good prospects for rehabilitation, the statutory minimum parole ineligibility period of 10 years is sufficient punishment.

[139] I do not think that the trial judge erred in relying on the manner of death as one consideration justifying an increase in the parole ineligibility. The trial judge relied on Moldaver J.’s observation in R. v. Brooks, [1993] O.J. No. 1396 (Gen. Div.): “death by ligature strangulation can only be described as grotesque”. In other words, death by strangulation, no matter how long it lasted, is an aggravating circumstance. Also, in this case, the evidence strongly suggested that the strangulation lasted several minutes. Dr. Fernandes testified that Gaudet was likely strangled with a ligature from behind, that it could have taken several minutes for her to die and typically one sees “four or five minutes of purposeful activity”.

[140] The trial judge fairly took into account the mitigating considerations favouring a shorter period of ineligibility: the appellant has made efforts to rehabilitate himself; he is a relatively young man; he has cooperated with the authorities while in custody; and he has been a good and supportive father to his children.

[141] Ultimately, however, the trial judge was persuaded that the catalogue of aggravating considerations he listed justified a three year increase. I cannot say that he exercised his discretion unreasonably. Accordingly, though I would grant leave to appeal sentence, I would dismiss the sentence appeal.

F. conclusion

[142] I would dismiss the appellant’s conviction appeal, his motion to introduce fresh evidence, and his sentence appeal.

[143] The appellant’s main ground of appeal against conviction is that the verdict is unreasonable. I would not give effect to that ground or to the other grounds of appeal that he raises.

[144] The appellant collaborated on or influenced Fitzpatrick’s recantation. The recantation itself was fabricated. It would therefore not be in the interests of justice to admit the fresh evidence.

[145] The trial judge did not exercise his discretion unreasonably in imposing a period of parole ineligibility of 13 years. Accordingly, I would dismiss the appellant’s sentence appeal.

Released: Mar. 8, 2013

“JL” “John Laskin J.A.”

“I agree E.A. Cronk J.A.”

“I agree S.E. Pepall J.A.”

[1] The officer was not Sergeant Reid, who took her retraction statement in October 2011. See paras. 87-88.

[2] See para. 90.