ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: SCA-7640 DATE: 2013-12-23

BETWEEN:

Her Majesty the Queen Respondent

– and –

Jill Carter Applicant

Counsel: Fraser McCracken, Counsel for the Respondent Clayton C. Ruby/Nader R. Hasan, Counsel for the Respondents

HEARD: October 17, 18, November 12, 2013

BEFORE: The Honourable Mr. Justice Patrick J. Flynn

REASONS FOR RULING ON FRESH EVIDENCE APPLICATION

[1] Both this Fresh Evidence Application and the Appeal proper came on before me for hearing but I determined that the hearing of the Appeal should await my Ruling on the Application.

[2] At the commencement of the hearing, I indicated that I only needed to hear from the parties on the issue of the "fresh" evidence of the proposed expert Doucet.

[3] I had reviewed the material and came to the conclusion that with respect to the proffer of the other two categories of so-called fresh evidence, the accused not only failed the due diligence requirement of the Palmer test (Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759 at 775) as cited by the learned trial judge on the argument to re-open.

[4] In the case of those categories, the accused "knew of these things … with the possible exception of the expert", that is to say, she knew that the evidence existed and simply chose not to call that evidence at trial.

[5] The trial judge even went so far as to call that a tactical decision. That is a finding with which I ought not to interfere.

[6] In respect of those areas of fresh evidence it seems to me that the Appellant is simply trying to reverse a tactical decision at trial. So, in respect of all the non-expert evidence the Appellant's Application must fail.

[7] I am mindful of the Appellant's comportment and competence before me. While she is not a lawyer, I agree with the trial judge's assessment when she wrote:

Notwithstanding Ms. Carter's frequent protestations that she did not know how to proceed or that she was not familiar with court procedures … she, throughout, exhibited a very thorough knowledge of the case … and conducted the trial in a completely creditable way. She was, I think being overly modest as to her abilities.

Having presided over this trial I am of the view that the accused was perfectly capable of conducting her own defence … (Reasons for Judgment, April 19, 2012 pg. 4)

[8] The Applicant, Jill Carter, is a 35-year-old police officer with the Ontario Provincial Police ("O.P.P."). She was charged with and convicted of: (1) breach of recognizance by communicating with Melissa Davies on December 13, 2010 (Criminal Code, s. 145(3)); (2) mischief by interfering with Sheena Johnson's use and enjoyment of her personal computer on December 13, 2010 (Criminal Code, s. 430(4)); and (3) mischief in relation to data by unlawfully accessing the email and and Facebook accounts of Sheena Johnson on December 13, 2010 (Criminal Code, s. 430(5).

[9] All three charges stemmed from a single incident: On December 13, 2010, someone purporting to be Ms. Johnson sent unpleasant e-mails from Ms. Johnson's e-mail and Facebook accounts to Ms. Davies. A series of messages was sent between 11:00 a.m. and 2:59 p.m. and another set of messages was sent between 3:00 p.m. and 4:00 p.m.

[10] The trial was a multi-day event spread over several months.

[11] The Applicant was unrepresented at trial. She is unrepresented again before me, although she had the assistance of quite capable counsel in preparing her Appeal and Application materials.

[12] She conducted herself before me in a confident and quite competent fashion.

[13] The Applicant relied almost exclusively on an alibi defence at trial. She denied any involvement in sending out the messages and suggested that Ms. Davies and Ms. Johnson had deliberately tried to frame her.

[14] The trial judge rejected the Applicant's alibi defence. She found that there were too many holes in the alibi and that there were inconsistencies between the videotaped statement that that Applicant provided to the police on the day of her arrest and her evidence at trial.

[15] But the trial judge did acknowledge that those holes in the alibi defence might have been filled if the Applicant had called her mother or her mother's friend to testify. The absence of alibi witnesses from whom the trial judge expected to hear contributed to the trial judge's conclusion that the alibi was fabricated.

[16] After the findings of guilt, but prior to sentencing, the Applicant retained counsel and two days prior to the date scheduled for sentencing, served the Respondent with a motion to reopen the evidence.

[17] That application contained Affidavits from six new proposed witnesses and another one from the Applicant herself. Five of those witnesses were in support of the Applicant's alibi. One of them, Russ Doucet, provided an opinion extending the range of a wireless network from the evidence the Crown had led. These Affidavits formed the bulk of the evidence that the Applicant seeks to adduce on this appeal.

[18] The application to reopen was summarily dismissed by the trial judge. She held that the Applicant was "perfectly capable of conducting her own defence" and that "she was not disadvantaged by any real lack of knowledge". Indeed, the trial judge found that the Applicant's failure to respond to a request that she provide an alibi notice in advance was "more likely the result of a tactical decision than any lack of knowledge of the procedure". (Transcript of Proceedings at Trial, June 18, 2012).

[19] In addition, the trial judge held that while she could not say with certainty what the outcome of the trial would be with the new alibi evidence, it did not give the court comfort with respect to the evidence of her father's banking activities. She concluded that she was not confident that the evidence would influence the court's decision in a way favourable to the Applicant. She made a similar finding with respect to the computer forensic evidence.

[20] With respect to the evidence about Melissa Davies' motive to fabricate and reputation for untruthfulness, the trial judge held that it would not have changed her decision, even had she been aware of it.

[21] After the Applicant was convicted, she appealed. On April 24, 2013, almost a year after the sentencing, the Applicant filed a Fresh Evidence Application with supplementary Affidavits. That is the application that I am dealing with.

[22] The fresh evidence that the Applicant seeks to introduce falls into three categories:

(1) the evidence of witnesses who corroborate the Applicant's alibi defence;

(2) the evidence of Russ Doucet, an expert on internet, network, wireless and computer security; and

(3) the evidence that the complainant and key Crown witness, Ms. Davies, had a motive to fabricate evidence against the Applicant and that she had a reputation for untruthfulness.

[23] With respect to all of the evidence sought to be introduced, save and except for the Doucet computer evidence, I would say this. Due diligence is not an absolute requirement but there is no compelling reason it would be in the interests of justice, based on the totality of the circumstances to admit this part of the fresh evidence. This evidence was all available to be called at trial.

[24] The application in that regard fails.

[25] But I was concerned that, as the Applicant was unrepresented on this appeal, I hear from the parties full argument on whether I should admit the proposed fresh evidence of the computer expert, Russ Doucet.

[26] While the Applicant was unrepresented before me in oral argument, as I indicated earlier, she had had the assistance of competent counsel, Mr. Clayton Ruby and Mr. Hasan, in the preparation of her appeal and application materials, including very thorough Facta. These were the same counsel who brought and argued the motion to reopen before the trial judge.

[27] Moreover, Mr. Hasan had been present and had participated in the out-of-court examinations of the witnesses, Leigh Ann Lowe, Glenda Sheehan, Dorothy Carter and Russ Doucet.

[28] I was impressed with the way in which the Applicant conducted herself before me. It was obvious that she had a deep grasp of her case and was very familiar with the Facta prepared by her counsel.

[29] While it is a close call, I would deny the application in respect of the computer evidence as well.

[30] That is the evidence of Russ Doucet. He conducted a comprehensive forensic examination of the Applicant's computer. The Applicant argues that his evidence is particularly important because the Crown never seized nor searched the Applicant's computer. The Applicant argues this is a gaping hole in the Crown's case.

[31] Mr. Doucet found that there was no active user activity during the relevant time period. He conducted a keyword search for words found in the offending e-mails as well as unique numbers present in the Facebook messages at issue. He did not locate the offending e-mails using this method. He deposed that they would have been found if they were there. Moreover, his searches found nothing on the hard drive involving the e-mail addresses of the two complainants.

[32] Mr. Doucet then utilized further forensic techniques in an attempt to see if there was evidence that a sophisticated computer user might have removed evidence of the offending messages. He found none. Nor did he find any evidence of any user attempting to conceal evidence by scrubbing the hard drive clean. And, he testified that it would have been relatively easy for someone to have used the Applicant's IP address either by capturing the IP address remotely or by using the Applicant's wireless address by being within 300 feet of her wireless modem.

[33] Some of the affiants, including Mr. Doucet, were cross-examined on their Affidavits at a special examiner's office on May 7, 2013. During the course of these examinations, the Respondent was notified that the Applicant's sister's computer had also been subjected to forensic analysis by Mr. Doucet and that instances of both complainants' e-mail addresses were located on her computer.

[34] The Applicant seeks to adduce this evidence almost three years after the offence and more than a year after her finding of guilt on a summary conviction trial.

Legal Analysis

[35] This court has broad discretion to receive fresh evidence where it is in the interest of justice to do so. The interests of justice encompass both the Applicant's interests in the pursuit of her appellate remedies and the broader long term interests of the administration of justice.

R. v. T.S. (2012), 2012 ONCA 289, 284 C.C.C. (3d) 394 (Ont.C.A.) at para. 114

[36] The test for admission of fresh evidence on appeal is well established:

(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.

(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.

Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759 at 775.

R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438 at para. 75

[37] This is the Palmer test. It can be formulated into these questions:

(a) Is the proffered evidence admissible under the Rules of Evidence applicable to criminal trials? [the admissibility requirement]

(b) Is the evidence sufficiently cogent that it could reasonably be expected to have affected the verdict? [the cogency requirement]

(c) What is the explanation offered for the failure to produce the evidence at trial and how should that explanation affect its admissibility on appeal? [the due diligence requirement]

[38] The cogency requirement means that the evidence must be relevant on a decisive or potentially decisive issue at trial, must be reasonably capable of belief and must be sufficiently probative that it could reasonably be expected to have affected the result.

[39] The due diligence requirement exists to promote finality in the criminal process. As Doherty J.A. wrote in M. (P.S.):

The interests of justice referred to in s. 683 of the Criminal Code encompass not only an accused's interest in having his or her guilt determined upon all of the available evidence, but also the integrity of the criminal process. Finality and order are essential to that integrity. The criminal justice system is arranged so that the trial will provide the opportunity to the parties to present their respective cases and the appeal will provide the opportunity to challenge the correctness of what happened at the trial. Section 683(1)(d) of the Code recognizes that the appellate function can be expanded in exceptional cases, but it cannot be that the appellate process should be used routinely to augment the trial record. Were it otherwise, the finality of the trial process would be lost and cases would be retried on appeal whenever more evidence was secured by a party prior to the hearing of the appeal. For this reason, the exceptional nature of the admission of "fresh" evidence on appeal has been stressed . . . .

R. v. M. (P.S.) (1992), 1992 2785 (ON CA), 77 C.C.C. (3d) 402 at 411 (Ont. C.A.)

[40] In amplifying this Doherty J.A. made this assessment:

Verdicts that fall too easily under the weight of fresh evidence demean the significance of the trial and diminish the validity of all verdicts.

R. v. Dooley (2009), 2009 ONCA 910, 249 C.C.C. (3d) 449 (Ont. C.A.) at para. 106.

[41] With respect to the computer expert evidence, the Applicant had over a year between when she was charged and the close of the defence case to retain a computer expert. She appears to have been in possession of her computer and wireless router all the while. She had access to her sister's computer. In my view, the last minute retainer of an expert witness who has continued to supplement his original Affidavit with new analyses during the course of this appeal, was not undertaken with due diligence. So the due diligence requirement of the Palmer test is not met on the computer evidence either.

[42] The Supreme Court of Canada has repeatedly held that due diligence is not an absolute requirement and that fresh evidence can be admitted on appeal even if this criterion is not satisfied. This court must determine whether the admission of the evidence would be in the interests of justice based on the totality of circumstances.

R. v. Warsing, [1988] 3 S.C.R. 579

[43] R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520 stands for the proposition that the due diligence criterion must yield where its rigid application might lead to a miscarriage of justice.

[44] While I have no difficulty in accepting that the proposed computer evidence is credible, and relevant in the sense that it bears upon a potentially decisive issue at trial, the question must be faced is whether or not that evidence is sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. And I have concluded that it would not.

[45] The applicant argues that the totality of the circumstances in this case requires consideration of three factors:

(1) the absence of any direct evidence of the Applicant's guilt because the case was circumstantial;

(2) the cogency of the proffered fresh evidence; and

(3) the fact that the Applicant was unrepresented at trial when she failed to present the proffered evidence.

[46] The Applicant's strongest argument is the fact that she was unrepresented at trial, though she did have several points of contacts with lawyers. At one point she had consulted a Mr. Scott, who indeed testified for her. But it wasn't until after the finding of guilt and before sentencing that she retained and used the services of Mr. Ruby and his associate. The Applicant argues that the fact that she was unrepresented is important in this case because the Crown's case was weak while the missing evidence is strong. I disagree that the Crown's case was weak. And as has been said before by me and by the trial judge, the Applicant acquitted herself quite well in the courtroom, including in the cross-examination of the witnesses.

[47] Not only does the fresh evidence from the computer expert fail the due diligence requirement. In my view, it fails the cogency requirement. Taken with the other evidence it could not be expected to affect the result. While the Affidavit material for Mr. Doucet comes across as strong, his opinion is quite diluted by the cross-examination outside of court.

[48] Mr. Doucet's evidence accordingly suffers from a number of flaws, which taken together preclude it from having meaningful effect on the verdict, for example:

(a) His assertion that the range for wireless router may be as high as 300 feet in ideal conditions outdoors with a direct line of sight simply is of no moment in the circumstances of this case where the router is indoors and none of his conditions obtained.

(b) Moreover, Mr. Doucet agreed that accessing a wireless router from outdoors in these circumstances significantly degrades the range.

(c) He also agreed that inclement weather can reduce the range.

(d) Reaching the edge of the wireless router's range would degrade the performance of a program designed to hack the wireless network.

[49] Taken together, these flaws significantly reduce the impact of Mr. Doucet's evidence and I am of the view that it cannot be said it would have affected the verdict in this case.

[50] But beyond Doucet's evidence of the range of the wireless router, there are flaws evidenced in his examination of her computer. For example, he admitted that the Applicant could have used another device capable of accessing the internet to send the offending messages. He further agreed that many Blackberry devices were capable of accessing a wireless network in circumstances where the Applicant had a Blackberry account registered in her name. He also testified that there were other programs that could leave no traces of access and that they were relatively easy to access. Mr. Doucet also conducted an analysis of the computer of the Applicant's sister, Leigh Ann Lowell, where it appeared that both complainants' email addresses did appear on that computer. Ms. Lowell's evidence with respect to her own searches of the complainants on Facebook and her inability to remember if she sent him any emails or what was on either of the complainants' Facebook profiles, together with her denial of knowing of the results of the forensic analysis of her computer make this evidence unhelpful to the Applicant. Certainly, it could not be said to affect the verdict.

[51] The biggest argument in her favour is that the Applicant was unrepresented. That might make my ruling a close call, but nonetheless I would deny the application in respect of the computer evidence as well.

[52] It may be that the unrepresented Applicant did not understand that one way to undermine the Crown's technological witness (or at least raise a reasonable doubt) was to adduce evidence from her own computer expert or it may be that she only discovered this when counsel was retained on her sentence hearing and on the application before the trial judge to reopen the case. Or it may be that she made a tactical decision to undermine that evidence or raise that doubt by way of an attempt at effective cross-examination of the Crown's witness. Retaining an expert, of course, can be a costly affair. And Mr. Hasan has made much in his Factum of the fact that the reason that Miss Carter was unrepresented and remains unrepresented is that she could not afford a lawyer. That tactical decision, whether it be for reasons of the cost or the confidence that Ms. Carter had, shows that a review of the trial transcript demonstrates that the Applicant was a fairly competent cross-examiner. In any event, Mr. Doucet's evidence could have been available for trial. In my view, the due diligence tranche of the Palmer test has not been met and while it would appear to me that that evidence is relevant and reasonably capable of belief, it is not sufficiently cogent that it could reasonably be expected to have affected the verdict.

[53] Accordingly, the application must be denied.

[54] The parties must within 30 days arrange with the trial coordinator at Kitchener for the hearing of the appeal proper.

P. J. Flynn J.

Released: December 23, 2013

COURT FILE NO.: SCA-7640 DATE: 2013-12-23

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Respondent

– and –

Jill Carter Applicant

REASONS FOR RULING ON FRESH EVIDENCE APPLICATION

P. J. Flynn J.

Released: December 23, 2013

/lr