R. v. M.E., 2012 ONSC 589

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CRIMJ(P) 208/10
DATE: 20120124

RE: HER MAJESTY THE QUEEN v. M.E.

BEFORE: HILL J.

COUNSEL:
L. Stokes, for the Crown
R. Singh, for the Defence

HEARD: January 23, 2012

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainants and any information that could disclose such identity, shall not be published in any document or broadcast or transmitted in any way.

E N D O R S E M E N T

1## Background

Following a trial, Mr. M.E. was convicted of a number of counts in Indictment #208/10. Reasons for judgment were delivered on December 14, 2011 ( 2011 ONSC 571 ). The accused was remanded to February 13, 2012 for sentencing.

2## The Letter

On or about December 29, 2011, an unsigned, handwritten letter was forwarded to me at the courthouse by registered mail. The letter reads as follows:

Feb 12 To Whom it May Concern

From J.E.

The Crown Attorney said I wasn’t alowed to speak freely & that Id only be allowed to answer his questions. Had I been allowed to say what I wanted – the court would have known what was said behind the scenes & on both sides of the story. P.E. told me he would bail me out if I made a statement on my father then threatened me when I questioned him about it. My father never did anything wrong and from where I saw he is a good man. To me this all seems like child hood grudge revenge. Allow me to see my dad.

3J.E., the accused’s son, was a witness at trial. He was then in custody. He was the alleged victim in count #’s 28 to 30. The prosecution did not seek to have the court find guilt on those counts. At paragraphs 138 and 226 of the court’s earlier reasons, I stated:

138J.E. informed the court that P.E. [P.E.] did not ask him to provide an exaggerated account of his childhood – he just said to tell the police, if he felt he should, what had happened growing up.

226J.E. was not referred to again by counsel for either party in their submissions after the witness left the courtroom. Little wonder. He presented as a thoroughly unbelievable witness transparently feigning lack of memory and advancing dodgy explanations when questioned about things said in his police interview statement. He left the witness stand asking whether there was any way he could regain contact with his father.

4The letter was disclosed to Crown and defence counsel. They were invited to make submissions as to the relevance of the correspondence, if any, prior to the sentencing hearing.

5## Analysis

Mr. Singh advised the court that while the accused thought the letter might be a reason to re-open the trial, he, as an officer of the court, submitted that the letter did not provide a foundation capable of meeting the test for re-opening a criminal trial after verdict as set out in R. v. Kowall (1996), 108 C.C.C. (3d) 481 (Ont. C.A.), at para. 31 (leave to appeal refused, [1997] 1 S.C.R. viii):

(1) the evidence, with due diligence, could not have been adduced at trial

(2) the evidence is relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial

(3) the evidence is credible in the sense it is reasonably capable of belief

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

6Mr. Stokes agreed that the circumstances could not justify seeking leave to re-open the case.

7In R. v. D.E., 2010 ONSC 5320, I reviewed many of the authorities relating to the discretion of a trial judge to re-open a criminal case and need not repeat that analysis here.

8The letter is not under oath. When under oath, J.E. said nothing about misconduct by P.E. in relation to appearing as a witness. Indeed, the witness’ evidence was that he was not pressured by P.E.. At trial, the witness gave every indication of turning on the Crown and striving to assist the accused without being restrained by the truth. He was a most unbelievable witness. The letter only appeared months and months after the evidence was completed but just two weeks after the accused was convicted.

9The evidence is not reasonably capable of belief. Counsel were correct in their assessment that this is not one of those exceptional cases justifying re-opening of the trial.