COURT FILE NO.: CR-17-102 DATE: 2020-07-21 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – S.S. Applicant

COUNSEL: J. Lefebvre and D. McCaig and M. Wlodarczyk, for the Respondent S. Sabourin, for the Applicant

HEARD: June 17, 2020 by video

DECISION ON APPLICATION

R.D. Gordon, J.

Overview

[1] S.S. was convicted on October 31, 2019 of several offences, most of which were committed against S.S.’s domestic partner. The Crown has sought a dangerous offender designation based on the predicate offence of sexual assault. On May 12, 2000 the complainant swore an affidavit purporting to recant. S.S. has brought an application to re-open the trial and for habeas corpus.

Background

[2] The applicant was tried on a 16 count indictment alleging various acts of violence over a period of roughly 18 months between January 1, 2016 and July 5, 2017. A directed verdict of acquittal was made on counts 5, 6 and 15 of the indictment. Of the remaining counts there were other acquittals and findings of guilt on lesser included offences such that S.S. was ultimately found guilty of five counts of assault, two counts of uttering threats to cause death, one count of sexual assault and one count of disobeying a non-communication order.

[3] In analyzing the trial evidence, I found the complainant to be prone to exaggeration. I also found that her evidence changed in some respects over the course of trial and that she had not always been truthful in what she told police and her mother. However, I was struck by her willingness to accept a degree of fault in the relationship, to acknowledge the good in the applicant, and to acknowledge her own shortcomings.

[4] Although I found myself unable to accept some of the allegations, I was convinced beyond a reasonable doubt that the applicant had committed the offences of which he was convicted. The convictions were based primarily on the complainant’s evidence, but I found corroboration in the following utterances made by S.S. in a conversation recorded by the complainant’s mother: “You’re fucking right I would kill her”, “Because of fucking bitches, they push me to my limit and I can’t control it, you know what, I know it, I try but I can’t. I can’t”, “I have no control” and “Me getting thrown in jail there, it’s not going to make me better. What I need to do is be in a fucking hospital where I have help from a fucking professional that they deal with that shit only.”

[5] Following the trial, the Crown indicated its intention to seek a dangerous offender designation for the applicant. The only qualifying offence was sexual assault. After a contested s. 752.1 hearing I ordered that an assessment be completed.

[6] The applicant brought a bail review application seeking release from prison pending his sentencing. His request was declined on May 5 of this year.

[7] On May 12, 2020 the complainant swore a brief affidavit which I reproduce in its entirety:

1. I R.L.S, declare the following statements The allegations I made against S.S. were false and made under duress. I claim that OPP officer Good, seemed to have a personal vendetta against S.S. At the time of my allegations my son was in the care of C.A.S. while S.S. was arrested and I was coerced by officer Good in exaggerating the allegations against S.S. and in return officer Good would make sure I would get my son back. I also state that S.L. did not like S.S. and she gave False statements to officer Good as well as false testimony in court which the proceeding Judge acknowledged as he disregarded her testimony. S.S. never sexually assaulted me, that charge is false and unjust. I’ve been wanting to come forward sooner as my conscience has been eating me alive the fear my mother has set upon me has been preventing me from speaking out about this matter I have taken the necessary steps to placing a peace bond against her in attempt to remove some of the fear from writing this affidavit I fear of what she might do in retaliation as she seems to have some mental issue and will do anything to destroy me by doing the right thing in coming forward with what is actually the truth.

[8] The affidavit was sworn before a lawyer, A.B., at her office in Sturgeon Falls. It is acknowledged that A.B. did not prepare the affidavit. The affidavit bears the court file number 17/102 and, on the bottom, left hand side of the second page there appears the following: “copyright 2002-2020 LawDepot.ca”.

[9] When the affidavit was provided to the Crown, an investigation was undertaken to determine the circumstances under which it came to be signed. Detective Sargent Joanne Matthews swore an affidavit outlining her investigation and appeared at the hearing to be cross-examined. She interviewed the complainant, the complainant’s mother, L.M., C.R., the lawyer A.B. and a taxi driver who is said to have taken the complainant and L.M. to the lawyer’s office. Although Detective Sargent Matthews recounts the conversations with each of these people in her affidavit, she had none of them provide a formal sworn statement. Her relating of the information they provided to her is classic hearsay and inadmissible before me.

[10] The admissible evidence presented by the Crown at this hearing may be summarized as follows:

1. Detective Constable Goode provided a sworn affidavit that he met only once with the complainant on July 6, 2017, in the presence of the complainant’s mother, and then Detective Constable Sarah Miller. He says the complainant was unsure of whether she wished to provide a formal statement and there was no threat made or inducement offered in order to have her do so. He says he observed bruising on her face. At the end of interview he and officer Miller left their cards with the complainant and it was up to her to decide if she wished to contact them.
2. Detective Sargent Sarah Miller provided a sworn affidavit that she and officer Goode met with the complainant and her mother on July 6, 2017. She states that she observed bruising to the complainant’s face. The complainant was asked if she would provide a statement and she replied that she would have to think about it. She says that nothing was said by either her or officer Goode to coerce or induce her to make a statement. She says that the complainant attended the police detachment on July 18, 2017 of her own volition and made a formal statement concerning S.S.. Officer Goode was not present when the statement was made and there were no issues regarding the complainant’s son or the Children’s Aid Society.
3. Business Records from the Children’s Aid Society indicate that on January 21, 2016 the complainant’s son spoke of domestic violence by the applicant against the complainant. Further, on March 1, 2016 the complainant admitted to being physically abused by the applicant.
4. Detective Constable Joanne Matthews provided a sworn affidavit that on May 21, 2020 she formed reasonable and probable grounds to believe L.M. had committed the offence of obstructing justice by preparing the affidavit based upon false information and by meeting with the complainant to secure her signature on the affidavit. L.M. was arrested on June 2, 2020 and provided a cautioned statement to police.
5. Sandy Martin, a legal administrative assistant with the Ministry of the Attorney General, swore an affidavit outlining the steps taken to determine that no steps had been taken by the complainant in 2018, 2019 or 2020 to initiate any peace bond proceedings against her mother.

[11] At the hearing of this application counsel for the applicant filed, without objection, the police summary of the statement given by L.M.. The most salient portions of her statement to police are as follows:

• She is a long-time friend of the complainant and of the Applicant. The Applicant calls her weekly from jail. Her boyfriend was on the same range as the Applicant for a time during his recent incarceration.
• The complainant came to see her and said there were false allegations against the Applicant and she told the complainant to write it down.
• The complainant wrote it on a piece of paper and she typed it up on her phone and had it printed. She didn’t pay 100% attention to what she was writing but remembers something about a sexual assault. She asked the complainant about it and was told that the Applicant did not do that.
• The complainant asked her to accompany her when the affidavit was signed an she did so.
• She did not keep the complainant’s handwritten statement.
• She had looked at websites for affidavit templates but did not use a template. She has since deleted the affidavit from her phone.
• She does not know where the court file number came from and she did not put it in.

[12] Initially I determined that I would be unable to determine this matter without hearing evidence from the complainant. The hearing was reconvened, and she was called as a witness. Both defence counsel and the crown were allowed to cross-examine her. Essentially, her evidence was that she was feeling pressured to do something so that the accused would not be facing a lifetime of imprisonment, had trusted L.M. to prepare a document in S.S.’s favour that she would sign, did not read the affidavit before swearing it, and upon review of it found most all of its contents to be untrue. She confirmed that her trial evidence was in fact what had happened including specifically the facts that resulted in his conviction for sexual assault.

The Applicable Law

[13] The test for re-opening the defence case after findings of guilt have been made and convictions recorded was summarized by the Ontario Court of Appeal in R. v. M.G.T., 2017 ONCA 736 as being more rigorous than that which governs the same application made prior to an adjudication of guilt because of the need to protect the integrity of the criminal trial process, including the enhanced interest in finality. The test was summarized by the court as follows:

[48] The criteria to determine the admissibility of fresh evidence on appeal provide helpful guidance to judges faced with an application to re-open the defence case after an adjudication of guilt has been made. The test is familiar:

(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: see McMartin v. The Queen, [1964] S.C.R. 484.

(2) The evidence must be relevant in the sense that it bears upon a 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.

See Palmer, at p. 775; Kowall, at para. 31.

[49] The Palmer factors requiring consideration on applications to introduce fresh evidence on appeal, incorporated by reference on post-verdict applications to re-open, may be summarized as:

i. admissibility; ii. cogency; and iii. due diligence.

See Truscott (Re), 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92.

[50] The admissibility and cogency requirements drawn from Palmer ensure that evidence proposed for reception on a post-conviction application to re-open:

i. relates to a decisive or potentially decisive issue at trial; ii. is reasonably capable of belief; iii. is probative of the fact the party seeks to establish by its introduction; and iv. is admissible under the prevailing rules of evidence.

[51] The admissibility requirement ensures that the exceptional remedy of re-opening is permitted only where the evidence proposed for reception is itself compliant with the rules governing admissibility. It would be pointless to allow re-opening only to exclude the evidence tendered for reception on the basis that it offended an admissibility rule. Such evidence could exert no influence on the determination of any decisive or potentially decisive issue at trial: see Truscott (Re) (2006), 213 C.C.C. (3d) 183 (Ont. C.A.), at para. 21.

[52] The cogency requirement commands a qualitative assessment of the evidence proffered on the application to re-open. This qualitative assessment begins with an identification of the purpose or purposes for which the evidence is proposed for admission. This involves an assessment of the potential (but not the actual) value of the evidence, considered in the context of the evidence adduced at trial that underpins the finding the party seeks to impeach: Truscott (2007), at para. 100. In this way, it can be determined whether the evidence is sufficiently cogent to warrant its admission. The trial judge should carefully evaluate the proposed evidence and the credibility of its source: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 50. However, no effort should be expended to determine the ultimate reliability or the ultimate credibility of the witness whose evidence is tendered: Snyder, at paras. 50-51.

[53] Evidence of a trial witness’ (later) recantation may be admissible for more than one purpose. As an out-of-court statement inconsistent with the witness’ trial testimony on a material issue, it can be put to that witness to challenge his or her credibility and test the reliability of his or her evidence: Snyder, at para. 52; R. v. B.(K.G.), [1993] 1 S.C.R. 740, at pp. 755-756. Depending upon its content, the statement may also be received as substantive evidence that an offence did not occur or that an accused was not involved in its commission: Snyder, at para. 51.

[54] Where the evidence proposed for admission on an application to re-open after verdict is a post-verdict recantation of a witness’ trial testimony, both trial and reviewing court should undertake a particularly rigorous qualitative assessment of the evidence of the recantation. This is especially so in cases of simple, unexplained recantations, because of the ease with which they can be fabricated. Too ready or uncritical admission of such recantations would put at risk the finality of verdicts each time a witness had second thoughts: Snyder, at para. 61; R. v. Babinski (1999), 44 O.R. (3d) 695 (C.A.), at para. 62.

[56] Two further points are worthy of consideration.

[57] The first has to do with the importance of context in assessing the relevance, admissibility and cogency of evidence. Without proper context it may be difficult, sometimes impossible, to tease out the meaning of words allegedly spoken. See, for example, R. v. Ferris, 1994 ABCA 20, 27 C.R. (4th) 141, at para. 30, affirmed , [1994] 3 S.C.R. 756, at para. 1; R. v. Hunter (2001), 54 O.R. (3d) 695 (C.A.), at para. 21.

[58] A final point concerns the authority of trial judges to call witnesses. The discretion of a trial judge to call evidence is undoubtedly a broad discretion. That said, there is nothing inherently unfair about requiring a party to tender the evidence on which that party wishes to rely. A trial judge should not exercise he or her discretionary authority to call witnesses in order to maintain or to provide a party with a tactical advantage: R. v. Finta, 73 C.C.C. (3d) 55 (Ont. C.A.), at pp. 205-206, affirmed , [1994] 1 S.C.R. 701.

[111] The searching assessment of the credibility of a post-conviction recantation is necessary to give substance to the cogency requirement, which must be satisfied to permit the introduction of fresh evidence. Some factors that may warrant consideration in an assessment of the credibility of a recantation might include:

i. the witness’ explanation of why he or she testified as he or she did at trial; ii. an explanation of what prompted the witness to change his or her evidence, for example, duress, sympathy, inducements or desire to tell the truth; iii. the other relevant circumstances surrounding the recantation; iv. whether the witness has recanted under oath or its equivalent; v. the witness’ reputation for truthfulness; vi. any facts, discovered after trial, which might have motivated the witness to fabricate evidence at trial.

See R. v. Hache (1999), 136 C.C.C. (3d) 285 (N.S.C.A.), at paras. 51-52.

[112] Other factors may be relevant in an assessment of whether fresh evidence of a recantation could reasonable be expected to have affected the result at trial. For example, an appellate court might consider:

i. how directly the evidence relates to the actus reus of the offence; ii. whether there is a compelling case against the appellant apart from evidence of the recanting witness; and iii. where the argument is that, even though not credible, the recantation should be put before the trier of fact as relevant to the credibility of the witness, whether the alleged unreliability of the witness was already before the trial court.

See Hache, at para. 53.

Analysis

[14] It is acknowledged by all that the new evidence from the complainant would be admissible. Similarly, it is acknowledged that it is evidence that could not, with due diligence, have been adduced at trial.

[15] Accordingly, the focus of this hearing was to determine the cogency of the evidence.

The Purposes for Which the Evidence Would be Tendered

[16] In the event the trial were re-opened the potential use of the new evidence would be two-fold. First, it would be tendered as substantive evidence that the offences, and particularly the offence of sexual assault, did not occur. Second, as it is inconsistent with the complainant’s trial testimony, it could be put to the complainant to challenge her credibility and test the reliability of her evidence. After hearing the complainant testify, defence counsel accepted that the evidence would have little impact as substantive evidence. However, she urged me to consider that it cast serious doubt on her credibility. In particular, that the complainant lied about something is inescapable. Perhaps she has lied about the truth of her trial evidence; perhaps she has lied about what is in the affidavit; perhaps she lied about whether she in fact knew the contents of the affidavit, notwithstanding her statement to the lawyer and that she had read it and it was true. Counsel argued that regardless of which untruth is accepted, her credibility would be lost at trial.

The Context of the Proposed Evidence

[17] The words of the complainant that the applicant wishes to have admitted if the trial was re-opened are contained in their entirety in the affidavit she swore. There are no missing words or other context required to determine their plain meaning.

The Credibility of the Proposed Evidence

[18] Defence counsel has essentially conceded that the proposed evidence has no credibility as substantive evidence. In determining its potential impact on the credibility of the complainant there is important context to the preparation and signature of the affidavit that must be considered. In particular, the complainant testified that she was feeling pressure from the accused and his friends to do something that would lessen the likelihood that he would spend the rest of his life in prison. She was being made to feel that she was to blame for his predicament. As she testified, the accused continues to “hold her heart” and she wanted to do something that might potentially help him out. It is in this context that the affidavit was sworn. In my view, this is not an unreasonable explanation of why she signed the affidavit.

Conclusion

[19] At trial the credibility of the complainant was not only before the court, it was the main focus of the trial and I found want with several aspects of her testimony. In my view, the proposed new evidence would do little to add or detract from my analysis of her testimony. It is also important to recall that the evidence at trial included an audio recording of the accused that was consistent with his culpability. Having regard to these factors, the proposed new evidence is not sufficiently cogent to warrant its admission at trial. It follows that the applications brought by the offender are dismissed.

[20] The dangerous offender assessment has been completed. It is ordered that a copy of the assessment be provided to counsel forthwith and that the trial coordinator arrange a date and time for counsel and S.S. to appear before me virtually to determine the next steps in this matter.

The Honourable Mr. Justice Robbie D. Gordon

Released: July 21, 2020