Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20221216 DOCKET: C66447

Lauwers, Huscroft and Miller JJ.A.

BETWEEN

His Majesty the King Respondent

and

Gary Willett Appellant

Counsel: Nicholas A. Xynnis, for the appellant Christine Tier, for the respondent

Heard and released orally: December 13, 2022

On appeal from the conviction entered by Justice John B. McMahon of the Superior Court of Justice on January 12, 2018, and the sentence imposed on June 27, 2018.

Reasons for Decision

[1] The appellant, Gary Willett, was convicted of child abduction, assault, and theft over $5,000 following a 21-day trial. The charges arose out of allegations that the appellant and his wife abused and exploited the complainant over a lengthy period spanning 25 years.

[2] The appellant’s wife, Maria Willett, was tried separately, and at her trial the complainant gave evidence that differed in significant respects from the evidence he gave previously. The Crown withdrew most of the charges against her, including the charges of child abduction and theft over $5,000, and she pleaded guilty to the remaining charges.

[3] The appellant brings a fresh evidence application that includes the complainant’s testimony at the trial of Ms. Willett. The Crown concedes that the fresh evidence ought to be admitted and the convictions should be quashed.

[4] We agree. Applying the criteria from Palmer v. The Queen, [1980] 1 S.C.R. 759: 1) the evidence is testimony given under oath in another trial and so is admissible under the rules of evidence; 2) we are satisfied that the evidence is sufficiently cogent that it could reasonably be expected to have affected the verdict; and 3) the appellant could not have adduced the evidence at his trial, because it was not yet in existence. In sum, it is in the interests of justice to admit the fresh evidence.

[5] The evidence goes to the heart of the complainant’s allegations that he did not consent to the informal adoption of his child and that the appellant took all of his Ontario Disability Support Program (“ODSP”) funds. The complainant’s conflicting testimony at Ms. Willett’s trial gives rise to concerns about his credibility and the reliability of his evidence, and the material differences in his testimony at her trial could reasonably have impacted the verdict. Although the complainant maintained his allegation that he was assaulted by the appellant, concerns raised about his credibility and the reliability of his evidence on the other counts could have affected the verdict on this count as well.

[6] We are satisfied that the fresh evidence undermines the safety of all of the original verdicts. Accordingly, the convictions are quashed and a new trial is ordered on all counts.

“P. Lauwers J.A.”

“Grant Huscroft J.A.”

“B.W. Miller J.A.”