COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McNeil, 2016 ONCA 844

DATE: 20161110

DOCKET: C60090

Feldman, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sheri-Lee Ann McNeil

Appellant

Erika Chozik, duty counsel

Scott Latimer, for the respondent

Heard: November 1 and 2, 2016

On appeal from the conviction entered on February 9, 2015, and the sentence imposed on February 9, 2015, by Justice J.T. Lynch of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of aggravated assault, uttering a death threat, possession of a weapon and breach of probation. She was sentenced to 14 months imprisonment plus a 2 year period of probation less 1:1 credit for pre-sentence custody. Although her sentence appeal has been heard, her conviction appeal has not. She now brings her conviction appeal and seeks to re-open her sentence appeal. She has tendered fresh evidence with respect to both.

[2] The events giving rise to the convictions occurred on New Year’s Eve 2013 at the home of Darlene Kelly. The appellant had been staying with Ms. Kelly who was acting as her surety. The complainant Barry McKay was also at Ms. Kelly’s apartment. A dispute arose between Ms. Kelly and the appellant. Mr. McKay threatened to call the police. Ms. Kelly, concerned about her role as surety, attempted unsuccessfully to take Mr. McKay’s phone from him. The appellant intervened and took the phone herself. When Mr. McKay tried to get it back, the appellant stabbed him in the chest with a pair of scissors. Both women left the apartment. A neighbour testified that someone wearing the same clothes as the appellant was speaking on a cell phone outside the Kelly apartment. The neighbour heard the person acknowledge having just stabbed someone.

[3] Only the appellant and Ms. Kelly were in the apartment with Mr. McKay when he was stabbed. Each claimed the other had stabbed him. Mr. McKay was not consistent on who stabbed him, and was in a state of intoxication that evening. Both women were initially arrested but only the appellant was charged.

[4] The trial judge accepted the evidence of Ms. Kelly that the appellant was the stabber. It is significant for purposes of the fresh evidence motion that Ms. Kelly testified that: (1) she had not been using drugs that night; and (2) that the appellant had been drinking and she rated her as 7 out of 10 on an intoxication scale.

Fresh Evidence

[5] The appellant seeks to rely on fresh evidence. It takes the form of her affidavit attaching two exhibits. The exhibits are two separate pages both entitled “Prisoner Detain Sheet.” The first sheet references the appellant and under the heading “Alcohol and Drug Related Information” there is a check mark in a box next to “Sober.” The second page refers to Darlene Kelly. Under the heading “Property and Release Information” is written “drug paraphernalia.” The appellant’s affidavit indicates that she received these documents as part of Crown disclosure before trial. However, she states that she only discovered them after trial.

[6] The well-known test for the admission of fresh evidence in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 is: (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; and (4) it 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.

[7] The Crown objects to the admission of the fresh evidence solely on the basis that it could not reasonably be expected to have affected the result. The appellant on the other hand submits that the fresh evidence could reasonably be expected to have affected the trial judge’s credibility assessment of her and of Ms. Kelly. She submits that the Prisoner Detain Sheets contradict Ms. Kelly’s evidence: (1) that the appellant’s intoxication level was 7 out 10; and (2) that Ms. Kelly had not used drugs on the night in question.

[8] We do not accept the appellant’s submission. The trial judge made no reference to the appellant’s state of intoxication except in the narration of Ms. Kelly’s evidence. The trial judge did not base her credibility findings of the appellant on Ms. Kelly’s evidence that the appellant had been drinking. She accepted Ms. Kelly’s evidence. She said her evidence was credible and reliable and not impacted in any significant way during cross-examination. With respect to the appellant, the trial judge made no finding about her sobriety and it formed no part of her credibility analysis.

[9] The appellant further submits that the trial judge’s rejection of the appellant’s evidence disclosed an underlying, but unstated, assumption that the appellant had been drinking. She submits that the trial judge’s references to the illogic of the appellant’s testimony can only be explained by the fact that the appellant had been drinking. Again, we disagree. Nothing in the trial judge’s reasons indicates that her findings about the illogical testimony of the appellant were connected to a state of intoxication.

[10] The fresh evidence could not reasonably be expected to have affected the result and is therefore not admitted.

Other Grounds of Appeal on Conviction

[11] Although the appellant relies primarily on the fresh evidence, she also submits that the trial judge made findings of fact based on unsupported inferences and gave uneven scrutiny to the evidence of the appellant as compared to that of Ms. Kelly. Again, we disagree. The trial judge’s finding that the appellant stabbed Mr. McKay was based on the acceptance of the evidence of Ms. Kelly – evidence she found was confirmed by extrinsic evidence including the blood found on the appellant’s clothes; and the testimony of the neighbour who heard the cell phone call. The trial judge explained why she accepted Ms. Kelly’s evidence and rejected the appellant’s evidence. The trial judge further acknowledged that it was a decision based on credibility findings but was “not a credibility contest.” We see no palpable and overriding error in her findings of fact.

The Sentence Appeal

[12] Although – on consent of the Crown – the fresh evidence is admitted on the sentence appeal, we see no error in principle in the sentencing judge’s determination as to the length of the sentence. We recognize that the sentencing judge referred to the appellant’s intoxication as a factor in fashioning the sentence. However, it was the appellant’s counsel who made submissions on sentence inviting her to do so. As acknowledged by the Crown, the appellant should have received enhanced credit for the pre-sentence custody at the rate of 1.5:1. In these circumstances, the sentence appeal is re-opened and the credit for pre-sentence custody is increased from 279 days to 418 days.

Disposition

[13] The conviction appeal is dismissed. The sentence appeal is allowed and the sentence is varied by increasing the pre-sentence custody credit to 418 days.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“M.L. Benotto J.A.”