R. v. Peter Honigan, 2015 ONSC 1489
COURT FILE NO.: SCA-13-73-4
DATE: 201503019
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
PETER HONIGAN
Appellant
Kim Walker, for the Crown
Andrew Matheson and Gideon Kwinter, for the Appellant
HEARD: November 17, 2014
trotter j.
[1] After a trial before Justice Gilles Renaud of the Ontario Court of Justice, Mr. Honigan was convicted of assault, unlawful confinement and breach of recognizance. He was sentenced to 270 days in custody (less 113 days of pre-sentence custody). The sentence having been served, Mr. Honigan appeals against his convictions.
SUMMARY OF THE FACTS
(a) The Evidence at Trial
[2] Mr. Honigan and the complainant, Malinda Shaw, were in an intimate relationship from 2001 to 2009. Ms. Shaw testified about an incident that happened on December 19, 2009 and continued into the next day. According to Ms. Shaw, she attended a party with Mr. Honigan. They got into an argument and then went back to Ms. Shaw’s apartment. The argument continued and culminated in Mr. Honigan grabbing her by the throat and throwing her down on a couch. As she fell onto the couch, Ms. Shaw’s head struck an ashtray and began to bleed. Mr. Honigan prevented her from leaving her apartment going to the hospital.
[3] Ms. Shaw reported the allegations to the police four days later. She did so because her car windows had been smashed and she believed Mr. Honigan to be responsible.
[4] On January 13, 2010, Ms. Shaw gave a second statement to the police, retracting her allegations against Mr. Honigan. She swore an affidavit to this effect on December 13, 2010. At the trial before Renaud J. in May of 2013, Ms. Shaw recanted her earlier recantations, claiming that she made them at Mr. Honigan’s request and because he threatened to distribute explicit photographs of her.
(b) The Trial Judge’s Reasons
[5] In finding Mr. Honigan guilty, Renaud J. accepted Ms. Shaw’s evidence that she had been in an “abusive relationship” with Mr. Honigan. He also accepted that, in making the allegations against Mr. Honigan, Ms. Shaw might have been motivated by jealousy, arising from the recent reappearance of one Mr. Honigan’s previous girlfriends. He also made the following observations about Ms. Shaw’s evidence:
There are a great number of inconsistencies. Some of them are internal. And of course, the great external one, that she lied on other occasions, lied by way of her statements to the police, and of course, the documents that are apparently before me.
I cannot tell whether the events took place in the bedroom as described, the bathroom as described, in the order it was described. And leaving aside all the difficulties I have with the question of the phone, and whether the gentleman fell asleep on the couch, or things of that nature, I accept at the end of the day the Crown has demonstrated that there was a direct touching and application of force to the neck.
I do not have any difficulty finding that the accused, at the end of the day, did, in effect, put his hands on her neck. [emphasis added]
The trial judge’s finding about the application of force to Ms. Shaw’s neck takes on significance in light of subsequent events.
(c) The Subsequent Trial
[6] Commencing in July of 2013, and continuing on numerous days through to October of 2013, Ms. Honigan stood trial on a number of other charges, based on allegations made by Ms. Shaw. This trial was conducted by Justice Diane Oleskiw of the Ontario Court of Justice. Ms. Shaw was brought to court on a material witness warrant.
[7] In order to explain the “narrative” of the relationship between Ms. Shaw and Mr. Honigan, the Crown (not Ms. Walker, nor the Crown at the trial before Renaud J.) attempted to elicit, through Ms. Shaw, the factual underpinnings of the allegations from December 19, 2009. This turned out to be ill-advised because Ms. Shaw gave yet another account of that incident. She made no allegation of being choked, nor did she suggest she had been forcibly confined.
[8] The Crown successfully brought an application under s. 9(2) of the Canada Evidence Act, followed by a successful “K.G.B. Application” to admit Ms. Shaw’s prior statements and her testimony before Renaud J. for the truth of their contents. During this process, Oleskiw J. urged Ms. Shaw to obtain independent legal advice.
[9] At the end of the trial, Oleskiw J. was left with a reasonable doubt on all charges that remained before her (others having been withdrawn by the Crown or, in the case of one count, the subject of a directed verdict). The acquittals were due to the contradictory and confused testimony of Ms. Shaw. As Oleskiw J. said in her Reasons for Judgment: “It is very difficult to determine on which occasion Ms. Shaw may be found to be speaking the truth.”
ISSUES AND ANALYSIS
[10] Mr. Honigan appeals his convictions on two grounds. He argues that the verdict is unreasonable. He also seeks to adduce as fresh evidence the testimony Ms. Shaw gave before Oleskiw J.
(a) Unreasonable Verdict
[11] Despite the highly problematic nature of Ms. Shaw’s, there was a basis in the evidence upon which the trial judge could convict. I am not persuaded that the trial judge’s ultimate conclusion was tainted by his “abusive relationship” observation. I consider this case to be a very close call. Other judges may have found the inconsistencies in Ms. Shaw’s evidence to be fatal. However, I cannot say that the very experienced trial judge erred in approaching the evidence in the manner that he did. Moreover, in assessing the verdict on this basis, one must not be distracted by the subsequent events at the trial before Oleskiw J. This ground of appeal fails.
(b) The Fresh Evidence Application
[12] The criteria for the admission of fresh evidence are well known. Anchored in R. v. Palmer and Palmer (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 (S.C.C.), an applicant must establish the following:
(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.
[13] Because Ms. Shaw made her new recantation after the first trial, the diligence requirement is easily met: see R. v. Babinski (1999), 1999 3718 (ON CA), 135 C.C.C. (3d) 1 (Ont. C.A.), at p. 22. Similarly, the evidence is clearly relevant and bears on a decisive issue. The recantation goes to the heart of Ms. Shaw’s credibility and the veracity of her allegations against Mr. Honigan.
[14] The third element of the test – whether the proposed fresh evidence is credible and reasonably capable of belief – is more difficult to apply in this case. This issue was addressed in Babinski, another case involving a recanting witness. The Court recognized that, even though the new account of a recanting witness may not be credible, it still might have impeachment value in the hands of defence counsel. Writing for the Court, Rosenberg J.A. proposed the following approach in these circumstances at p. 24:
In my view, where the court of appeal is dealing with the fresh evidence of a witness who testified at the trial as to matters of fact and the court is satisfied that the fresh evidence is not credible and does not affect the credibility of the testimony given by the witness at trial, the fresh evidence is inadmissible. However, where the court of appeal, having fully reviewed the record, is unable to find that the evidence is not credible, even though it is unable to say that it is credible, the court must go on to consider the fourth Palmer requirement on the theory that the evidence may nonetheless have substantial impeachment value if made available to a reasonable trier of fact. [emphasis added]
[15] That is the situation here. Whether or not Ms. Shaw’s latest version is true, it may have substantial impeachment value if made available to a reasonable trier of fact. Considered in conjunction with all of Ms. Shaw’s other maneuvers, both in and out of court, it may make a difference in the assessment of her credibility. After all, Ms. Shaw’s most recent version of events was given under oath, and before a judge who was so concerned with the situation that she urged Ms. Shaw to get legal advice: see R. v. T.S. (2012), 2012 ONCA 289, 284 C.C.C. (3d) 394 (Ont. C.A.), at p. 419 and R. v. Reeve (2008), 2008 ONCA 340, 57 C.R. (6th) 163 (Ont. C.A.), at p. 178. The new account has substantial impeachment potential.
[16] In her helpful submissions, Ms. Walker for the Crown argues that the interests of justice ought to prevent the admission of the fresh evidence because Mr. Honigan was complicit in Ms. Shaw’s most recent recantation (and the ones made prior to the trial before Renaud J.). Ms. Walker points to Ms. Shaw’s jail visits with Mr. Honigan, prior to the trial before Oleskwi J. As Laskin J.A. wrote in R. v. Kassa (2013), 2013 ONCA 140, 296 C.C.C. (3d) 353 (Ont. C.A.), at p. 375:
If, on a rigorous assessment of the fresh evidence, the recantation is shown to be the product of collaboration between the appellant and the recanting witness….or is unacceptably tainted by the appellant’s influence, its cogency is so undermined that it would not be in the interests of justice to admit the fresh evidence. See R. v. Kelly (1999), 1999 1968 (ON CA), 135 C.C.C. (3d) 449 (Ont. C.A.); application for leave to appeal quashed, [2001] I S.C.R. 741 (S.C.C.). The reason is obvious. An appellate court should not tolerate an appellant’s attempt to influence the evidence of a Crown witness.
In that case, the Court concluded that Kassa was complicit in the recantation through numerous means and refused to admit the fresh evidence on appeal.
[17] I admit to having some concern about the role of the Mr. Honigan in Ms. Shaw’s changing testimony. As Renaud J. said in his Reasons: “She was confronted by an individual, and in effect, told to lie, and she did so. She had done so in the past.” However, the only evidentiary source for this conclusion was Ms. Shaw. Similarly, Ms. Walker’s submission on the latest recantation rests entirely on Ms. Shaw’s testimony. While Ms. Shaw acknowledged some contact with Mr. Honigan leading up to the trial before Oleskiw J., she did not allege that he persuaded her to recant again. On the paper record before me, I am unable to make the finding urged upon me by Ms. Walker. What I do know is that, when she reluctantly testified before Oleskiw J., Ms. Shaw gave a version of events very different to the one that she gave in her evidence before Renaud J. She directly contradicted Renaud J.’s critical finding (see paragraph 5, above) that Mr. Honigan applied force to her neck.
[18] Ms. Shaw’s testimony before Oleskiw J. must be viewed in a broader context. This was not the only occasion on which she claimed not to have been assaulted by Mr. Honigan on December 19, 2009. She had previously recanted these same allegations. Even though he found Mr. Honigan guilty, Renaud J. was clearly troubled by these recantations. Ms. Shaw’s testimony before Oleskiw J. on the very same issue takes these serious credibility problems to a whole new level, one that requires that the allegations be re-examined at a new trial. Accordingly, the fresh evidence is admitted.
CONCLUSION
[19] The appeal is allowed and a new trial is ordered.
Trotter J.
Released: March 19, 2015
CITATION: R. v. Peter Honigan, 2015 ONSC 1489
COURT FILE NO.: SCA-13-73-4
DATE: 201503019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
PETER HONIGAN
Appellant
REASONS FOR JUDGMENT
Trotter J.
Released: March 19, 2015