WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 2018-06-26

Docket: C57016

Judges: Hourigan, Pardu and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Luis Cesar Garcia Appellant

Counsel: David M. Humphrey and Naomi M. Lutes, for the appellant Alexander Alvaro, for the respondent

Heard: June 22, 2018

On appeal from: the conviction entered on January 29, 2013 by Justice Nancy Mossip of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Introduction

[1] The appellant was convicted of the sexual assault of his patient during a medical examination. He asks us to admit fresh evidence on appeal, and submits that there is a strong possibility that the verdict would have been different had the jury heard the fresh evidence.

[2] We agree that the fresh evidence meets the test for admissibility. The fresh evidence "could reasonably be expected to have affected the verdict:" R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 245. As a result a new trial is required.

The Evidence at Trial

[3] The complainant A.E attended the appellant's office for a doctor's note demanded by her employer as she had missed work because of back pain. Her sister, C.E. went with her to the appointment but waited in the reception area.

[4] The complainant testified that during her appointment, the appellant asked her if she would go out with him. She thought he was joking, and responded, "who wouldn't want to go out with a doctor, and he's rich, right?" The complainant testified that he hugged her, kissed her cheek and neck, touched her breast and unsuccessfully tried to put his hand down the front of her pants. She said he rubbed her crotch area and stuck his tongue in her mouth. He exposed his genitals and tried to force her body into contact with them. When it became clear she was not agreeing to the contact the normal medical appointment resumed. He asked her to go dancing with him and she agreed. He whispered to her that this was to be their secret.

[5] The complainant's sister C.E. testified that A.E. came out of the doctor's office a changed person. Before the appointment, A.E. was happy and talkative and they were joking around. After the appointment A.E. did not seem herself, she did not look right. She seemed nervous and "spaced out". C.E. testified that A.E.'s face was pale and her eyes were watery and red, as if she was about to cry. This was unusual as she had not seen her sister cry since she was 14 years old. C.E. testified that A.E. then described sexual assaults she had suffered in the appellant's consulting room and they discussed going to the police.

The Proposed Fresh Evidence

[6] The proposed fresh evidence casts doubt on the credibility of both A.E. and C.E.

Roberto Paniagua

[7] The appellant had been Mr. Paniagua's family physician for over 20 years. On December 21, 2010, the date of the alleged assault, he was on the roof of his house (located directly behind the medical clinic) between 2:00 and 4:00 p.m., cleaning the eavestroughs. During that time, he saw two Hispanic girls walking in his direction from the entrance of the medical clinic. He overheard that one of the girls was named C. He recalls, because his daughter is also named C.

[8] Mr. Paniagua heard one of the girls say, in a mixture of both English and Spanish: "I'll say he touched me and you saw me crying." The other replied: "I don't agree with that." The first girl then responded: "It doesn't matter. That old guy has money. He's rich." Mr. Paniagua notes that neither girl was crying.[1]

Olga Mendoza

[9] The appellant had been Ms. Mendoza's family physician for over 20 years. On December 21, 2010 she had an appointment with the appellant in relation to a shoulder injury she suffered at work. She smoked a cigarette in the parking lot while she waited for her appointment. She noticed a man fixing the roof of a nearby bungalow.[2]

Doranid Giraldo

[10] The appellant had been Ms. Giraldo's family physician for roughly seven years. On December 21, 2010 she attended the appellant's office between 1:00 and 1:30 p.m. She recalls two young women, who appeared to be sisters, waiting in the reception at the time.

[11] Ms. Giraldo recalls that one girl saw the doctor, while the other stayed behind. When the first girl returned to the reception, she signaled to the other to indicate they were leaving, and whispered something in her ear. She recalls that they were smiling.[3]

Esther Cruz Manes

[12] The appellant had been Ms. Cruz Manes' family physician for roughly seven years. On December 21, 2010 she had an appointment with the appellant. She waited to see him between 1:00 and 3:00 p.m., and recalls two young girls who were also waiting. She was called into her appointment before the two young girls, and does not recall if they were still waiting when she left. After leaving the appellant's office, she went to the pharmacy. Sometime after 3:00 p.m. she took the bus home. She recalls seeing the same young girls she had seen at Dr. Garcia's office. As they walked by her, she overheard them say, in a mixture of both English and Spanish, something to the effect of: "Help me finish the plan. It's a good deal." Neither girl was angry or crying.[4]

How Did the Fresh Evidence Come to Light?

[13] Counsel for the appellant retained a private investigation firm to conduct interviews with the above-mentioned individuals to obtain character evidence for the sentencing hearing. Those interviews were conducted between March and April 2013. Between September and October 2014, all four witnesses swore affidavits. Between May and August 2017, all four witnesses were cross examined by Crown counsel.[5]

The Test for Admission of Fresh Evidence

[14] Section 683(1) allows this court to admit fresh evidence where it is in the interests of justice.

[15] Admission of the proposed evidence is controlled by the principles articulated in Palmer v. The Queen, [1980] 1 S.C.R. 759, and in Truscott.

[16] The Palmer criteria are as follows:

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.[6]

[17] The criteria embrace three components: admissibility under the governing rules of evidence; cogency and whether the proposed evidence bears upon a decisive or potentially decisive issue at trial, is reasonably capable of belief, and could reasonably be expected to have affected the verdict at trial; and due diligence.[7] The first two – admissibility and cogency – are preconditions to the admissibility of the fresh evidence on appeal. On the other hand, due diligence is not a condition precedent to admissibility, and assumes importance only when the other components have been met. It asks whether the explanation offered, if any, for the failure to adduce the evidence at trial should affect the admissibility of the evidence on appeal.[8] The explanation offered for the failure to adduce evidence at trial, or in some cases the absence of any explanation, can result in the exclusion of evidence that would otherwise be admissible on appeal.[9]

[18] The Crown opposes the admission of the fresh evidence on the ground that it is not capable of belief and because it could have been tendered at trial with the exercise of reasonable diligence.

[19] The Crown points out that the witnesses wrote letters outlining their recollection some 26 months after the events and agreed there was nothing remarkable about the events they described seeing. They had all known the appellant from previous contacts, some as patients. Their affidavits were sworn some 45 months after the alleged events. The Crown suggests that there was a hint of collusion surrounding the gathering of this evidence and argues that there are inconsistencies amongst the fresh evidence witnesses as to locations where the two women were seen.

[20] The Crown says there is "good reason to believe the testimony of these witnesses is a wholesale concoction personally orchestrated by the appellant."

[21] We do not agree. Here four independent citizens, with no criminal records and with no connections to the offence, have sworn affidavits attesting to what they saw. They did not waver under cross examination by the Crown. It strains credulity to believe that these individuals would swear false affidavits and obstruct justice to support an individual with whom they were not closely connected. This is not evidence from a participant in the crime, or from recanting witnesses who have changed their evidence many times: R. v. Kassa, 2010 ONCA 140; R. v. Allen, 2018 ONCA 498.

Due Diligence

[22] Trial counsel was discharged after conviction but before sentencing. The fresh evidence came to light as new counsel sought character evidence for sentencing purposes. The fresh evidence could have been introduced at trial if trial counsel had been aware of it. The failure to adduce this evidence did not arise from a tactical decision. The failure to discover this evidence and adduce it at trial does not outweigh the impact of the potentially significant probative value of this evidence. This prosecution depended heavily on the jury's assessment of A.E.'s and C.E.'s credibility.

Conclusion

[23] We recognize that the need for finality means that fresh evidence is not often admitted on appeal. As Watt J.A. noted in Allen, at para. 90: "[a]dmitting fresh evidence on appeal necessarily undermines legitimate finality expectations. This negative consequence can only be justified if the overall integrity of the process is furthered by the reception of the fresh evidence."

[24] This is one of those cases. The proposed fresh evidence is reasonably capable of belief, bears on a decisive issue at trial, and when considered with the other evidence at trial could be expected to have affect the verdict. The interests of justice require a new trial where the credibility of all of the evidence can be assessed, and we so order.

[25] The fresh evidence is admitted, the conviction is quashed and a new trial is ordered.

"C.W. Hourigan J.A."

"G. Pardu J.A."

"I.V.B. Nordheimer J.A."

Footnotes

[1] Fresh Evidence Application Record, Tab 3 – Affidavit of Roberto Paniagua, at paras. 2, and 9-16.

[2] Fresh Evidence Application Record, Tab 6 – Affidavit of Olga Mendoza, at paras. 3, and 9-10.

[3] Fresh Evidence Application Record, Tab 4 – Affidavit of Doranid Giraldo, at paras. 3, and 9-14.

[4] Fresh Evidence Application Record, Tab 5 – Affidavit of Esther Cruz Manes, at paras. 3, and 9-19.

[5] Fresh Evidence Application Record, Tab 2 – Affidavit of Sandra Gidari, at paras. 8-14.

[6] Palmer v. The Queen, [1980] 1 S.C.R. 759, at para. 22.

[7] R. v. Allen, 2018 ONCA 498, at paras. 92, 94; R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at paras. 92, 99.

[8] R. v. Allen, 2018 ONCA 498, at paras. 92-93.

[9] R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 93.