COURT FILE NO.: CR-19-00000026-00AP

DATE: 2021Jun9

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JOHN WILLIAM EHRHARDT

Appellant

Allyson Ratsoy, for the Crown

Michael Rappaport, for the Appellant

HEARD at Kingston: May 10, 2021

Tranmer J.

REASONS FOR DECISION

(Application to Admit Fresh Evidence on Summary Conviction Appeal)

Background

[1] Mr. Ehrhardt made an assignment into bankruptcy on May 19, 2015.

[2] He was charged on an information dated May 18, 2017 with two offences contrary to the Bankruptcy and Insolvency Act, namely that he omitted to identify all his assets on a statement of affairs, contrary to section 198(1) of the Act, and that he failed to meet the duties of a bankrupt under section 198(2) of the Act.

[3] His trial in the Ontario Court of Justice took place in March and October 2018. The Crown called 4 witnesses including the Trustee in Bankruptcy. Mr. Ehrhardt testified in his own defence. In the course of the trial, Mr. Ehrhardt changed counsel.

[4] Final submissions were made on October 29, 2018.

[5] On January 8, 2019, Justice O’Brien released written reasons convicting Mr. Ehrhardt on both counts. On February 21, 2019, Mr. Ehrhardt was sentenced to a six-month conditional sentence.

[6] Mr. Ehrhardt appealed his convictions.

[7] On the date set for the hearing of the appeal, February 5, 2020, his then counsel successfully applied to be removed as counsel of record.

[8] His current counsel has filed an Additional Supplementary Notice of Appeal.

[9] Mr. Ehrhardt is 78 years of age, born April 1, 1943.

[10] It appears that as a result of matrimonial litigation, he was paid by his former wife on account of a judgment in his favour, the sum of $155,000. This sum has accrued interest and remains in the hands of the Trustee in Bankruptcy. It appears that the total debts owing by Mr. Ehrhardt at the time of his assignment, was in the amount of $45,000.

Nature of this Application

[11] The appellant seeks to adduce fresh evidence at his summary conviction appeal hearing. Such evidence can be described in general as follows:

(a) Exhibit A is an undated document on the letterhead of The Coin and Jewellery Exchange. Written in hand is a name and “emerald ring $2500 CH#1054”. It purports to be signed by the person named.

(b) Exhibit C is a Notice of Examination before the Official Receiver dated March 17, 2016 advising Mr. Ehrhardt of a date, April 6, 2016 at 10 AM, and place for examination.

(c) Exhibit D is a letter dated May 4, 2016 written by Mr. Ehrhardt to the employee of the trustee, Kim Desjardins. In the letter, he advises that he does not consider himself to be in bankruptcy and complains about the conduct of the trustee and his office. He complains that he should have been advised that there was an alternative to declaring bankruptcy.

(d) Exhibit E is a letter dated May 18, 2016 from a lawyer acting for Mr. Ehrhardt to the trustee in bankruptcy, plus letters written by Mr. Ehrhardt. They request an accounting and return of excess monies held by the Trustee to Mr. Ehrhardt.

(e) Exhibit F is a notice dated August 22, 2017 to creditors advising of a meeting to be held September 8, 2017. Attached is a letter dated June 25, 2018 from the Trustee to another law firm apparently acting on behalf of Mr. Ehrhardt.

(f) Exhibit H is a letter dated April 26, 2019 written by the office of the Superintendent of Bankruptcy to Mr. Ehrhardt addressing concerns that he had raised with them in prior correspondence concerning the Trustee and the bankruptcy process.

(g) Exhibit I is a letter dated Thursday, September 27, 2018 from a lawyer to Mr. Ehrhardt outlining conversations he had had with respect to his bankruptcy proceedings.

The Applicable Legal Principles

[12] The test for admitting fresh evidence on appeal is set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, at pp. 13 and 14:

Parliament has given the Court of Appeal a broad discretion in s. 610(1)(d). The overriding consideration must be in the words of the enactment "the interests of justice" and it would not serve the interests of justice to permit any witness by simply repudiating or changing his trial evidence to reopen trials at will to the general detriment of the administration of justice. Applications of this nature have been frequent and courts of appeal in various provinces have pronounced upon them -- see for example Regina v. Stewart [(1972), 1972 1445 (BC CA), 8 C.C.C. (2d) 137] (B.C.C.A.)]; Regina v. Foster [(1977), 1977 ALTASCAD 300, 8 A.R. 1] (Alta. C.A.)]; Regina v. McDonald [ 1969 334 (ON CA), [1970] 3 C.C.C. 426] (Ont. C.A.)]; Regina v. Demeter [ (1975), 1975 685 (ON CA), 25 C.C.C. (2d) 417] (Ont. C.A.)]. From these and other cases, many of which are referred to in the above authorities, the following principles have emerged:

(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 43 (SCC), [1964] S.C.R. 484].

(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.

The leading case on the application of s. 610(1) of the Criminal Code is McMartin v. The Queen, supra. Ritchie J., for the Court, made it clear that while the rules applicable to the introduction of new evidence in the Court of Appeal in civil cases should not be applied with the same force in criminal matters, it was not in the best interests of justice that evidence should be so admitted as a matter of course. Special grounds must be shown to justify the exercise of this power by the appellate court. He considered that special grounds existed because of the nature of the evidence sought to be adduced and he considered that it should not be refused admission because of any supposed lack of diligence in procuring the evidence for trial. The test he applied on this question was expressed in these terms at p. 493:

With the greatest respect, it appears to me that the evidence tendered by the appellant on such an application as this is not to be judged and rejected on the ground that it "does not disprove the verdict as found by the jury" or that it fails to discharge the burden of proving that the appellant was incapable of planning and deliberation, or that it does not rebut inferences which appear to have been drawn by the jury. It is enough, in my view, if the proposed evidence is of sufficient strength that it might reasonably affect the verdict of a jury.

[13] In R. v. P.S.M., 1992 2785 (ON CA), [1992] O.J. No. 2410, (Ont. C.A.), Justice Doherty stated the principles as follows; at pp. 4, 5, 6, 8 and 14-15:

Prior to considering the admissibility of the tendered evidence, the well-known criteria governing the admissibility of "fresh" evidence on appeal should be stated. They are:

(i) Was the evidence available by the exercise of due diligence and, if so, is there a satisfactory explanation for the failure to produce the evidence at trial?

(ii) Does the evidence bear upon a potentially decisive issue at trial?

(iii) Is the evidence credible?

(iv) Could the evidence, if believed, when taken with the rest of the evidence, reasonably be expected to have affected the verdict?

The last three criteria are conditions precedent to the admission of evidence on appeal. Indeed, the second and third form part of the broader qualitative analysis required by the fourth consideration. The first criterion, due diligence, is not a condition precedent to the admissibility of "fresh" evidence in criminal appeals, but is a factor to be considered in deciding whether the interests of justice warrant the admission of the evidence: McMartin v. The Queen, supra, at pp. 490-92 S.C.R., pp. 148-50 C.C.C.; Palmer and Palmer v. The Queen, supra, at p. 776 S.C.R., p. 205 C.C.C.

While the failure to exercise due diligence is not determinative, it cannot be ignored in deciding whether to admit "fresh" evidence. 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: McMartin v. The Queen, supra at p. 490 S.C.R., p. 148 C.C.C.

The due diligence criterion is designed to preserve the integrity of the process and it must be accorded due weight in assessing the admissibility of "fresh" evidence on appeal. The case law is replete with examples where the failure to exercise due diligence has been emphasized in rejecting applications to adduce "fresh" evidence on appeal…

"Fresh" evidence applications cannot be made the means whereby appellate counsel seek to undo reasonable tactical decisions made at trial so as to secure a new trial, where that different tack may or may not be pursued by the defence.

Jury trials are often full of unexpected twists and turns. Witnesses sometimes deviate from their anticipated evidence. Where those deviations occur, counsel are required to react quickly and while they are occupied with the numerous other issues which must be addressed in the course of an ongoing trial. I would not be prepared to hold that counsel's failure to investigate, during the trial, Ms. T.'s evidence as to when she moved from Stratford constituted a failure to exercise due diligence. Counsel's explanation for not doing so is, in the circumstances of this particular trial, a reasonable one.

In any event, even if counsel's conduct at trial could be said to display a lack of due diligence, I would not exclude this evidence on that ground alone. As indicated earlier, the significance of the failure to exercise due diligence on an application to adduce "fresh" evidence depends on the totality of the circumstances relevant to the application and the specific nature of the conduct which is said to constitute a failure to exercise due diligence. In my view, even assuming counsel's conduct fell below the level of due diligence, the conduct is not such as to override the other considerations relevant to the admissibility of this evidence. If those other criteria are established, I would admit this evidence.

I turn now to the fourth consideration: Could the evidence revealing Ms. T.'s error concerning the date of her move from Stratford, if believed and taken with the other evidence, reasonably be expected to have affected the verdict? The limits of the question posed by this criterion are important. It is not for the appellate court to retry the case with the "fresh" evidence factored into the rest of the evidence adduced at trial. Nor is it for this court to decide the admissibility of this "fresh" evidence based on this court's assessment of the credibility of Ms. T.'s evidence given before this court. Our function is a more limited one.

[14] Justice Pepall in R. v. Dudar, 2019 ONCA 115 noted that admission of fresh evidence of facts that were litigated at trial is exceptional:

40 Ultimately, the "interests of justice" govern whether fresh evidence is admissible on appeal. Importantly, while the "interests of justice" to be considered include the interests of the accused, s. 683(1) of the Criminal Code also embraces broader interests, including the preservation of the integrity of the trial process and the finality of trial verdicts: see R. v. Dooley, 2009 ONCA 910, 249 C.C.C. (3d) 449, at para. 106, leave to appeal refused, [2010] S.C.C.A. No. 179. Reflective of this interest, admission of fresh evidence of facts that were litigated at trial is exceptional: R. v. P.G., 2013 ONCA 520, 301 C.C.C. (3d) 81, at para. 41; R. v. T.S., 2012 ONCA 289, 284 C.C.C. (3d) 394, at para. 122. Admission of such evidence is justified only in furtherance of the integrity of the process: P.G., at para. 41.

41 Although there is an important interest in ensuring that unreliable verdicts are not allowed to stand, there is also a compelling interest in ensuring that the appellate process is not routinely used to re-write the trial record: Allen, at para. 90; P.G., at para. 40. As Doherty J.A. observed in Snyder, at para. 44:

While it cannot be gainsaid that those interests are not served by maintaining verdicts that are shown to be unreliable through fresh evidence, those interests are also not served if the appellate process is routinely used to re-write the evidentiary trial record, often years after the trial. Admitting fresh evidence on appeal of necessity undermines legitimate finality expectations. That negative consequence is justified only if the overall integrity of the process is furthered. Admitting evidence on appeal of facts that were litigated at trial is very much the exception to the accepted appellate process: R. v. M. (P.S.) (1992), 1992 2785 (ON CA), 77 C.C.C. (3d) 402 at p. 411 (Ont. C.A.).

42 As mentioned, the onus is on the party seeking to admit the evidence to establish that it should be received on appeal. The inquiry is necessarily context-sensitive and requires consideration of the totality of the circumstances: Truscott, at para. 81.

[15] In R. v. O’Brien, 1977 168 (SCC), [1978] 1 S.C.R. 591, the Court cautioned that proposed “fresh evidence” must be admissible pursuant to the law of evidence:

Section 610 of the Criminal Code lends no assistance to respondent's case. It is a prerequisite that any evidence sought to be adduced under the discretion granted by that section be admissible evidence. The section manifestly does not authorize a Court of Appeal to dispense with the law of hearsay evidence. If that were so we would have the anomalous situation in which counsel could seek to adduce on appeal that which the common law prohibits at trial. The section is not operative until the threshold for admissibility as defined by common law and statute is crossed. That threshold has not been crossed in the instant case.

[16] With respect to raising a Charter issue on appeal that was not advanced at trial, Justice Doherty has said in R. v. Roach, 2009 ONCA 156, [2009] O.J. No. 662 (OCA) at paras. 6-11:

6 Generally speaking, appeal courts will not entertain arguments not made at trial: Kaiman v. Graham, 2009 ONCA 77, [2009] O.J. No. 324 at paras. 18-19 (C.A.). That general rule applies to constitutional arguments raised for the first time on appeal regardless of whether the arguments invoke the remedial powers of s. 24 of the Charter or the nullifying power in s. 52(1) of the Constitution Act, 1982: e.g. see R. v. L.G. (2007), 2007 ONCA 654, 228 C.C.C. (3d) 194 at para. 43 (Ont. C.A.); R. v. Seo (1986), 1986 109 (ON CA), 25 C.C.C. (3d) 385 at 394 (Ont. C.A.).

7 An appellate court does, however, have the discretion to permit new arguments, including Charter arguments. In exercising that discretion, the appellate court must be satisfied that the new issue raised on appeal can be fully, effectively and fairly addressed on appeal even though it was not raised at trial. An appellate court will be most inclined to exercise its discretion in favour of hearing a new argument where that new argument can be fully addressed and determined based on the trial record: e.g. see R. v. Sweeney (2000), 2000 16878 (ON CA), 148 C.C.C. (3d) 247 at paras. 34-40 (Ont. C.A.). More rarely, an appellate court will hear a new argument based on an evidentiary record laid out for the first time in the court of appeal: e.g. R. v. Seo, supra.

8 In my view, the more numerous and contentious the evidentiary disputes generated by the material filed on appeal in respect of the issue raised for the first time on appeal, the less likely it is that the appellate court will exercise its discretion in favour of considering the merits of the new argument. While appeal courts do resolve evidentiary disputes from time to time in the course of deciding appeals, appellate procedures are not designed for that purpose. The appellate forum and its procedures are not adapted to the weighing of evidence and the finding of facts. Appeal courts review decisions made at trial. The appeal process is premised on the issues under appeal having been vetted in the trial court and subjected to the reasoned analysis of the trial court. If a new argument put forward on appeal can only be effectively and fairly resolved by conducting what amounts to the trial of an issue or several issues in the appellate court, the appellate court should, absent exceptional circumstances where the interests of justice require otherwise, decline to resolve the new issue raised on appeal.

9 The nature and number of issues that this court would have to address if it considered the merits of the constitutional argument raised by the appellant become apparent upon a review of the Supreme Court of Canada's s. 12 jurisprudence. That jurisprudence reveals a somewhat complex two-layered analysis: see R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895; R. v. Ferguson (2008), 2008 SCC 6, 228 C.C.C. (3d) 385 (S.C.C.). The cases and the Crown's written submissions indicate that the issues that will have to be addressed in the constitutional argument include:

*the harm caused by the offence created by s. 212(1)(2.1);

*the effect of the criminalized conduct on the individual victims and the broader community;

*the extent to which the harm done by the prohibited conduct impacts disproportionately on discrete and particularly vulnerable categories of victims;

*the problems associated with the effective prevention and detection of the criminal activity involved in offences under s. 212(1)(2.1);

*the value as a deterrent of mandatory minimum sentences; and

*the legislative intent and purpose of the provision.

10 Some of the material that the Crown indicates it will file will come from unimpeachable sources and will refer to legislative facts that can be effectively assessed within the context of an appeal. It is, however, inevitable that some of the material filed by the Crown will contain opinions and factual analysis that will be contentious. It is highly likely that the appellant will have to cross-examine on some of the material put forward by the Crown. It is equally likely that the appellant will want to prepare responding material. Having regard to what the Crown anticipates will be its defence of the constitutionality of the provision, I anticipate a full blown evidentiary battle in respect of at least some of the issues that are central to the appellant's constitutional challenge.

11 This court is not the appropriate forum in which to join that battle. I say that for two reasons. First, as indicated above, within the criminal justice system, the trial court is the acknowledged forum in which to test and assess competing evidentiary claims. Addressing those issues in the appellate court without the benefit of the trial court's assessment is not the ideal recipe for sound decision-making.

See also, R. v. Chambers, 2013 ONCA 680, citing Roach.

Analysis

[17] The applicant abandoned this application with respect to Exhibits B and G. Exhibit B on this application was trial Exhibit 30.

(a) Exhibit A

[18] I would not admit this document as fresh evidence.

[19] Firstly, the document is not dated, and the circumstances in which it was created and by whom and why, and what it represents or means, are unexplained. It represents hearsay evidence. It is inadmissible under the O’Brien principle.

[20] Secondly, the issue as to the value of the ring was litigated at trial, evidence having been given by a Crown witness and by Mr. Ehrhardt. The value of the emerald ring is not fresh evidence.

[21] Furthermore, the evidence given by Mr. Ehrhardt at trial, is inconsistent with his affidavit evidence on this application. At trial, he testified on October 19, 2018, that Mrs. Hutter had sold the ring and that he gave the Crown a receipt for that. In his affidavit, he states that at the time of trial, the ring was in the possession of The Crown and Jewellery Exchange and that it did not sell until the summer of 2020. Both the trial evidence and the affidavit evidence are inconsistent with what Mr. Ehrhardt stated in his bankruptcy examination, that the ring was worth $500 and he gave it as a gift to a friend.

[22] Finally, there is no explanation as to whether this is the receipt that he produced to the Crown at trial or not.

[23] Exhibit A fails to meet the criteria set out in the Palmer authorities that I have cited.

(b) Exhibit C

[24] This Notice of Examination dated March 17, 2016, advised Mr. Ehrhardt that the examination could be held in English or in French. It advised him that he could have the services of a qualified interpreter. It also advised him that “Failure to attend for your examination is an offence under the BIA”.

[25] The appellant submits that this document is evidence of a breach of his Charter rights not to incriminate himself and of his right to counsel.

[26] Although the appellant complains that he received this notice just two days prior to the date scheduled for the examination, the trial evidence is that the examination did not take place until May 11, 2016, a month later.

[27] The official who conducted the examination testified at trial that prior to every examination, she always took the time to inform a debtor that if he or she wanted to have a lawyer present with them, that would be permitted. She was not cross-examined on that point.

[28] Section 10 of the Charter guarantees the right to retain and instruct counsel without delay and to be informed about right “on arrest or detention”. Mr. Ehrhardt was not under arrest or detained.

[29] Section 11(c) of the Charter guarantees the right not to be compelled to be a witness against oneself if “charged with an offence”. Mr. Ehrhardt was not charged with an offence at that time.

[30] The document was in Mr. Ehrhardt’s possession two years prior to the commencement of the trial.

[31] This issue was not raised at trial and is being raised for the first time on appeal.

[32] I would not admit the document as fresh evidence on the appeal for these reasons and for the reasons articulated by Doherty, JA in Roach. A more fulsome evidentiary record would have to be laid out for the first time in the appeal court.

The appeal process is premised on the issues under appeal having been vetted in the trial court and subjected to the reasoned analysis of the trial court… If a new argument put forward on appeal can only be effectively and fairly resolved by conducting what amounts to the trial of an issue… The appellate court should, absent exceptional circumstances where the interests of justice require otherwise, decline to resolve the new issue raised on appeal.

[33] On this issue, I would expect that the appellant would seek to adduce evidence as to his understanding of the notice and of the examination, his decision to attend and why he did or did not consult with counsel in advance and his understanding and decisions with respect to the official’s offer of having counsel present. He would certainly be cross-examined on such evidence by the Crown. The interests of justice do not require admission of this evidence.

(c) Exhibit D

[34] At trial, a letter of the same date, May 4, 2016, addressed to the complaints officer of the Office of the Superintendent of Bankruptcy was marked as Exhibit 28. The substantive content of that trial exhibit is identical to Exhibit D. Exhibit D is not fresh evidence. It does not meet the Palmer criteria. It would have been readily available at the time of trial and could not reasonably be expected to have affected the result.

(d) Exhibit E

[35] These letters were available well before trial and could not reasonably be expected to have affected the result. They do not satisfy the Palmer criteria. This information is contained in trial Exhibit 35. They are not admissible as fresh evidence.

(e) Exhibit F

[36] The actual minutes from that meeting of creditors were entered as Exhibit 35 by the appellant at the trial. The notice was available at the time of trial. I find that the notice adds nothing of relevance. The contents of the notice could not possibly have affected the result at trial.

[37] The second document attached to Exhibit F was entered by the applicant at his trial and marked as Exhibit 26. It is not fresh evidence.

[38] Exhibit F is not admissible as fresh evidence on this appeal.

(f) Exhibit H

[39] This exhibit is not admissible as fresh evidence on this appeal because it could not possibly have affected the result at trial, Palmer criteria 4.

(g) Exhibit I

[40] The letter is written to Mr. Ehrhardt by his trial counsel prior to Mr. Ehrhardt testifying at his trial. I find that the document has no relevance, but if it did, trial counsel could have adduced it or put its contents to his client at trial. He decided not to do so.

[41] This exhibit fails the Palmer criteria 4, and is not admissible as fresh evidence.

[42] The concerns of Mr. Ehrhardt about the bankruptcy proceedings as opposed to a consumer proposal as seen in application Exhibits D, F, H and I were raised at trial in his testimony and as seen in trial Exhibits 26, 28, 30 and 35. These trial exhibits and his trial testimony show that Mr. Ehrhardt’s issue concerning the alternative of a consumer proposal was raised at trial.

Summary

[43] The application to adduce fresh evidence on this appeal is dismissed for the foregoing reasons. The admission of these documents is not required in the interests of justice. There are no special grounds shown to justify the exercise of such power by this court on this appeal. There is no exceptional circumstance that would warrant the admission of this fresh evidence. There is no need to admit this evidence in furtherance of the integrity of the trial process.

[44] In reaching this conclusion, I have considered the interests of Mr. Ehrhardt and as well the broader interests of preservation of the integrity of the trial process and the finality of trial verdicts as directed by the authorities that I have cited.

Honourable Mr. Justice Gary W. Tranmer

Released: June 9, 2021

COURT FILE NO.: CR-19-00000026-00AP

DATE: 2021Jun9

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JOHN WILLIAM EHRHARDT

Appellant

REASONS FOR DECISION

(Application to Admit Fresh Evidence

on Summary Conviction Appeal)

Tranmer J.

Released: June 9, 2021