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Warning: Criminal Code Provide
Warning: Criminal Code Provide
The President of the panel hearing this appeal directs that the following should
(4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the
(4) An order made under this section does not apply in respect of
the disclosure of information in the course of the administration of
justice when it is not the purpose of the disclosure to make the
information known in the community. 2005, c. 32, s. 15; 2005, c. 43,
s. 8(3)(b).
BETWEEN
Respondent
and
M.G.T.
Appellant
On appeal from the conviction entered on September 23, 2013 by Justice Ian B.
Cowan of the Ontario Court of Justice.
Watt J.A.:
[3] His wife thought he was paranoid. She was making arrangements to
leave him.
[6] K.C. called 911 to report an assault at the family home. He said M.G.T.
was “beating on his wife”, like he had the night before. The police responded.
They charged M.G.T. with assault, sexual assault and unlawful confinement, and
[7] The wife testified at her husband’s trial. So did K.C. The judge said that
K.C.’s testimony confirmed parts of the wife’s account of what had happened.
[8] The trial judge found M.G.T. guilty of sexual assault and entered stays on
[9] After conviction but prior to sentence, M.G.T.’s brother, J.T., claimed that
K.C. had confessed to fabricating his testimony at trial. According to J.T., K.C.
told J.G. that he (K.C.) had lied to the police. J.G. relayed this information to J.T.
J.T. then called K.C., who told J.T. that “this whole thing was planned”.
[10] Trial counsel for M.G.T. asked the judge to allow the defence to re-open
its case based on the contents of J.T.’s affidavit. Trial counsel wanted the trial
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affirmed the conviction he had previously entered and continued with sentencing
proceedings.
[12] M.G.T. appeals. He says the judge erred in refusing the re-opening
recantation by K.C. of his trial testimony and the transcript of K.C.’s 911 call,
[13] These reasons explain why I would not accede to the claim of error in
refusing re-opening, reject the application to introduce fresh evidence and, in the
the events underpinning the conviction under appeal, the circumstances giving
rise to the application to re-open the defence case and the trial judge’s reasons
[15] M.G.T. and his wife had been married for 17 years. They lived in the
had been living with the other family members for several months.
[16] M.G.T. and his wife were having problems in their marriage. M.G.T. used
crack cocaine. He suspected his wife of infidelity. His wife thought that he was
paranoid. She was actively planning to leave the marriage. She had contacted a
social worker and was awaiting a vacancy at a shelter near the family home so
[17] When M.G.T.’s wife returned home from work in the early evening of May
26, 2013, she found M.G.T. and K.C. drinking and smoking in their home. M.G.T.
[18] M.G.T. testified that on this evening he told K.C. to leave the family home
by the end of the week. He considered K.C. a bad influence on his children.
[19] According to his wife, M.G.T. came into their bedroom and told her that
he wanted her out of the house by the end of the week. He then demanded sex.
She refused his request because he was high on crack. M.G.T. forced sexual
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intercourse on her despite her lack of consent, called her names, assaulted her
asked her for sex. She agreed. As he began to have sexual intercourse with his
wife, he did not like what he was feeling. He stopped having intercourse and sat
up in bed. They argued about her cheating. His wife pretended that she was
crying.
[21] K.C. acknowledged that he had smoked crack earlier in the evening. He
admitted that M.G.T. had told him to leave the house by the end of the week.
[22] K.C. testified that he called 911 because he heard sounds of “smacking”
coming from the couple’s bedroom. He heard three smacks, but could not say
who was smacking whom. He denied the suggestion that he was looking for a
reason to call the police because M.G.T. had told him to leave by week’s end and
[23] On September 23, 2013, the trial judge found M.G.T. guilty of assault,
sexual assault and unlawful confinement of his wife. The judge recorded a
conviction for sexual assault and stayed the other findings of guilt on the basis of
[24] The trial judge founded his conclusion of guilt on the basis of the
testimony of M.G.T.’s wife about events that took place in the bedroom. The
[25] In connection with the testimony of K.C., the trial judge accepted K.C.’s
denial of any plan with M.G.T.’s wife to get M.G.T. out of the house. In the
penultimate paragraph of his reasons, the trial judge described the role that
I do believe [the wife] when she told the court that she
went to their bedroom fully clothed and that when her
husband said he wanted to have sex with her she said,
“no.” I also believe that she physically resisted by
kicking and pushing him when he tried to get on top of
her and removed her pants and panties and that she
told him, in no uncertain terms, that she did not want to
have sex. I accept her evidence that when she tried to
leave the room he blocked her, albeit briefly. I also find
that the Crown has proven beyond a reasonable doubt
that he slapped her on at least one occasion with an
open hand during this time in the bedroom. This
evidence is corroborated somewhat by the evidence of
[K.C.] who heard what he thought were three slaps but I
find that this assault by slapping was part of the sexual
assault. It was an ongoing event, as was his blocking
her from leaving the room. These two charges of
unlawful confinement and assault simplicitor are stayed
as being subsumed by the sexual assault charge.
[Emphasis added.]
begin, trial counsel for M.G.T. made an application to re-open the defence case.
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In the event that the trial judge were to permit re-opening, counsel asked the
[28] In his affidavit, M.G.T. swore that his brother, J.T., told him that he, J.T.,
K.C. told J.T. that his (K.C.’s) evidence at trial was not the truth.
[29] J.T. deposed that he telephoned J.G. who told him (J.T.) about a car ride
with K.C. sometime in July, 2013. According to J.T., J.G. told him that K.C. told
him (J.G.) that he (K.C.) had lied to the police. The same evening, J.T. called
K.C. who told J.T. “that this whole thing was planned”. K.C. then abruptly stopped
talking. He told J.T. that he (K.C.) would say no more unless “the court
subpoenaed him”, then expressed a fear that he would end up in jail for having
lied at trial. K.C. begged off an arranged meeting with J.T. and the men did not
speak again.
[30] The trial judge dismissed the application to re-open the defence case,
thus did not reach the request for issuance of a subpoena for K.C.
[31] The trial judge noted that the information J.T. claimed to have received
from J.G. recounted an admission by K.C. that he had lied to the police. The
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conversation allegedly had occurred in July, 2013, about two months in advance
of trial. Tendered for its truth through the affidavit of J.T., what K.C. allegedly said
[32] According to the trial judge, the affidavit of J.T. posed hearsay problems,
devoid of context, thus fell short of what was required to invoke the discretion to
re-open.
[33] M.G.T. (“the appellant”) advances two grounds of appeal. First, he alleges
an error in the trial judge’s conduct of the trial. Second, he seeks leave to
[34] Insofar as trial proceedings are concerned, the appellant says that the
trial judge erred in failing to permit the defence to re-open its case to adduce
evidence from K.C. about his alleged recantation of his trial testimony.
[35] With respect to fresh evidence, the appellant seeks leave to introduce the
what he said about the appellant’s assault of his wife on May 27, 2013. He also
seeks leave to introduce the 911 call K.C. made to police reporting the assault,
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which the Crown had not disclosed and the defence had not requested before or
[36] The first ground of appeal challenges the correctness of the trial judge’s
decision to refuse to permit defence counsel to re-open the defence case after
circumstances in which the application was advanced and summarized the trial
judge’s reasons for dismissing it. Nothing will be gained by their repetition here.
[38] First, the remedy sought. In the event of success on the application to re-
open the defence case, defence counsel asked the trial judge to call K.C. as a
witness. Counsel later revised his request to have the judge issue a subpoena to
[39] Second, the evidentiary basis on which the application was grounded.
Trial counsel relied on two affidavits: one from M.G.T. and a second from his
brother, J.T. Each reported what the affiant alleged K.C. had said to them or to
others. J.T. swore that J.G. claimed that in July, 2013, K.C. had told him (J.G.)
that he (K.C.) “lied to the police.” J.T. said that in October, 2013, K.C. had told
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him that “this whole thing was planned”. J.G. did not file an affidavit. J.T. offered
no further details.
the application. Counsel did indicate that K.C. was scheduled to be at the
courthouse the following day, but did not suggest an adjournment to permit an
[41] The appellant begins with a reminder that the testimony of K.C. was a
non-consensual nature. It follows, the appellant says, that anything that shows or
tends to show that K.C.’s evidence was contrived, part of a plan or pact with the
complainant, would deal a serious, if not fatal blow, not only to K.C.’s credibility
and the reliability of his evidence, but also to the testimony of the complainant.
[42] According to the appellant, the trial judge misapprehended the nature of
the evidence trial counsel offered on the application and also erred in his
application of the test for re-opening. The proposed evidence is material and
admissible as original evidence that K.C. had perjured himself at the appellant’s
trial. The evidence was not barred by the hearsay rule or any other rule of
admissibility. The proposed evidence was credible since the same admission had
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been made to two different people. It was relevant in that it tended to impeach
the reliability of testimony that the trial judge considered to corroborate the
trial because K.C.’s alleged recantation only emerged after the appellant’s
conviction.
[43] The respondent sees things differently. The trial judge, the respondent
says, applied the proper test, did not misapprehend any evidence and reached a
[44] The respondent contends that the standard to be applied when the
defence seeks leave to re-open its case post-verdict is, as it should be, a
rigorous test not easily met. The appellant must meet the requirements for the
admission of fresh evidence on appeal set out in Palmer v. The Queen, [1980] 1
S.C.R 759. And, further, the judge must consider whether the application to re-
[45] In this case, the respondent continues, the trial judge was limited in his
determination of the application to the affidavits of M.G.T. and J.T. The affidavit
of J.T. lacks any meaningful context for the discussion between K.C. and J.G. It
cannot be admitted for its truth since it fails to satisfy the requirements for the
any first-hand information from K.C. himself or offer any explanation for his failure
to do so.
the defence case after conviction occur, the principles that govern these
applications are well-settled. In this case, the parties are ad idem on the
principles, but differ on the result that should follow from their application.
[47] The test for re-opening the defence case after findings of guilt have been
made and convictions recorded is more rigorous than that which governs the
more exacting standard is required to protect the integrity of the criminal trial
the defence case after an adjudication of guilt has been made. The test is
familiar:
i. admissibility;
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
introduction; and
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[51] The admissibility requirement ensures that the exceptional remedy of re-
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
(Re) (2006), 213 C.C.C. (3d) 183 (Ont. C.A.), at para. 21.
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 of the evidence or the ultimate credibility of the
[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
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.
simple, unexplained recantations, because of the ease with which they can be
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.
involves the exercise of judicial discretion. Where that discretion has been
[57] The first has to do with the importance of context in assessing the
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.
[58] A final point concerns the authority of trial judges to call witnesses. The
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 his
party with a tactical advantage: R. v. Finta (1992), 73 C.C.C. (3d) 65 (Ont. C.A.),
[59] For the brief reasons that follow, I would not give effect to this ground of
appeal. The trial judge was cognizant of the test to be applied on a post-verdict
[60] At the outset, it is helpful to call to mind not only the remedy the appellant
sought on the application, but also the materials upon which he relied.
trial; and
[62] The evidentiary foundation placed before the trial judge on the application
with K.C., in which his brother claimed K.C. said his evidence
conversation J.T. had with J.G. before the trial, in which J.G.
claimed K.C. told him that he (K.C.) lied to police, and a post-
[63] What the trial judge did not have was any indication from J.G. about how
it was this initial conversation with K.C. came to occur during a drive in July 2013
despite earlier contacts with him and knowledge of his impending court
appearance.
[64] Both affidavits tendered on the re-opening application are fraught with
[65] To the extent that they were tendered as proof of the truth of an assertion
by K.C. that he “lied to the police” or “this whole thing was planned”, they cannot
escape the exclusionary grip of the hearsay rule. Not on the basis of any listed
[66] To the extent that the affidavits were tendered to prove the mere fact that
K.C. said he lied, they lack context to assign them meaning. In the absence of
[67] Even though the affidavits were tendered on an application for re-opening
for the limited purpose of impeaching the credibility of K.C.’s trial evidence, the
trial judge and this court are obliged to consider the credibility of the evidence. As
in Snyder, the triggering recantation to J.G. – K.C. “lied to the police” – emerged
fully grown out of nowhere. A car ride in July. No context provided. Apart from his
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name, we know nothing of J.G. On the credibility meter, J.T.’s report fares no
better. Neither constitutes a basis on which to re-open the defence case after
[68] The second ground of appeal is related to, but discrete from the first.
[69] The appellant invokes our authority to receive further evidence on appeal
and seeks leave to introduce two items of evidence that were not available and
thus not tendered for admission at trial. Each has to do with the testimony of K.C.
ii. the recording and transcript of K.C.’s 911 call on May 27, 2013,
[71] Some further background will provide the context essential for an
[72] J.C. is K.C.’s brother. For nearly three decades he has worked for a
more than a quarter century. Although the business was recently sold, J.C.
[73] According to J.C., K.C. came to his home on December 28, 2013. K.C.
brought a case of 24 beers along with him. Both men drank some beer. K.C.
[74] As J.C. recounted it, K.C. said he was upset because he had made a big
mistake by doing what he did to M.G.T. M.G.T.’s wife had “made him do a set-
up.” She would get M.G.T. going. When she started to scream, K.C. was to call
the police. K.C. heard them arguing in the bedroom and called the police. He told
the operator – as M.G.T.’s wife had asked him to do – that he heard M.G.T. hit
his wife.
[75] J.C. said that his brother told him that the truth was that, although he had
heard shouting, he did not hear the appellant strike his wife and lied about having
heard three blows struck. K.C. explained that M.G.T.’s wife cashed his work
while working.
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other weekend over the relevant months, but that it was only on the one occasion
trial. The conversation occurred after J.C. had told K.C. that he (J.C.) was upset
about K.C.’s involvement in M.G.T.’s case. K.C. did not provide any details about
the shouting he heard. J.C. had about five beers over the six hours K.C. was at
his home. K.C. could have drunk more beer than J.C. was aware and could have
taken some drugs before arriving at J.C.’s home. J.C. did not know that both
M.G.T. and K.C. had taken drugs and were drinking beer together on the night of
[77] J.C. conceded that he never spoke to the appellant about K.C.’s
disclosure. He said nothing to the appellant’s brother N.T. for about a year after
K.C.’s visit. J.C. acknowledged that he didn’t have a good memory of his
[78] On January 10, 2014, about two weeks after the alleged recantation to
[79] In his affidavit, J.C. swore that the first time he spoke to anybody
regarding K.C.’s disclosure about his evidence at the appellant’s trial was on
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February 9, 2015, when he received a telephone call from a lawyer in the office
of appellate counsel. The lawyer asked whether J.C. had spoken to K.C. about
appellant’s older brother, N.T., about his conversation with K.C. J.C. signed his
affidavit on February 24, 2015, about 14 months after he had spoken to K.C.
about his trial evidence. He was cross-examined on his affidavit 32 months after
the conversation, and 18 months after he had sworn it. J.C. admitted that it was
not a priority for him to recall everything that was said in his conversation with his
brother. He did not have a good memory of their discussion. He accepted that
the delay in completing the cross-examination could have been due to him
having second thoughts about it, but he also claimed that work commitments
[81] In the course of responding to the fresh evidence application, counsel for
the respondent obtained a copy of K.C.’s 911 call. This was disclosed to counsel
[82] It is common ground that, although the 911 call was referred to in the
notes of a police officer who responded to the call and testified at trial, a copy of
the recording was not provided to defence counsel as part of the initial Crown
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disclosure. Nor was it requested by defence counsel before or during the trial. In
the result, neither trial counsel had a copy of the 911 call at trial.
policy in the Crown Attorney’s Office in Peel Region. 911 calls were not included
calls would only be provided if either the Crown or defence requested it. To
implement the request, the Crown would contact the Central Disclosure Unit of
the Peel Regional Police, who would provide a copy for the Crown. The Crown
[84] During the 911 call, K.C. never disclosed his name to the 911 operator,
although he described his location in the house from which he was calling. He
more information from him and to keep him on the line. He described the
husband as “liquored up” and explained that the same thing had happened two
days in a row. K.C. told the operator that the husband had “pretty much raped
[the wife]” on the previous night, and that he was “beating on his wife” and
“smacking her around”. The “smacking” had stopped as the 911 call continued,
replaced by quiet.
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[85] The appellant advocates the reception of the evidence of J.C. and argues
[86] The appellant says the evidence of J.C. satisfies the admissibility and
cogency requirements under Palmer. Further, it could not have been obtained by
the exercise of due diligence at trial, since the conversation did not occur until a
on what he said to his brother. This evidence could be used to impeach his
the appellant, since it tended to show that what was alleged to have occurred
[88] The appellant says that the hearsay rule erects no bar to admissibility
because, tendered through the recipient, what K.C. said would be admitted for its
truth under both a listed and the principled exception to the hearsay rule. The
rigours of the exclusionary rule are tempered by the need to prevent an injustice.
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[89] The cogency requirement is also satisfied according to the appellant. The
evidence is reliable and can reasonably be expected, if given together with the
[90] Turning to the 911 call, the appellant says that the call should have been
purposes. The substance of the call, the appellant contends, is suggestive of the
set-up plan put to K.C. in cross-examination at trial. The request for anonymity.
The account of the husband “beating on his wife” from which K.C. retreated at
[92] Turning first to the evidence of J.C., the respondent contends that what is
proposed for admission fails to pass muster on either ground on which the case
ground of bias, interest or corruption, requires the presence of the witness who is
to be confronted with these allegations. The death of K.C. makes this impossible.
cannot surmount the barrier erected by the hearsay rule. No listed exception can
basis. The discussion was not recorded. It was not under oath. The context in
which it occurred is unclear. Both the declarant and the proposed witness were
drinking. There are also significant credibility problems with the proposed
witness.
cogency. K.C.’s testimony was a relatively minor player in the proof of guilt. It
follows, according to the respondent, that any evidence that has an impact on his
[96] As for the 911 call, the respondent accepts that its disclosure is governed
by the policy of the local Crown Attorney’s office. However, in the end, the
Crown’s failure to disclose it did not impair the appellant’s right to make full
answer and defence. There is no reasonable possibility that the disclosure failure
[97] The respondent points out that, for the most part at least, the 911 call
confirms K.C.’s trial evidence. Nothing that he said to the operator is suggestive
such conspiracy. As for trial fairness, what tells most against any claim of harm is
the failure of trial counsel to seek and pursue disclosure of the 911 call. Trial
counsel was aware of the 911 call, not only from the testimony of K.C. at trial, but
also from the disclosed notes and trial testimony of the responding police officer.
[98] It is a reasonable inference, the respondent says, that trial counsel made
a strategic decision not to pursue disclosure of the 911 call, thus it cannot be said
[99] The principles that inform our decision in connection with this ground of
appeal relate to two issues. The first has to do with the circumstances in which
trial. The second concerns the authority to interfere with a verdict rendered at trial
[100] Section 683(1) of the Criminal Code accords appellate courts a broad
discretion to receive fresh evidence when the court considers it in the interests of
justice to do so. When fresh evidence is proposed for admission on appeal the
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circumstances of the case. This encompasses not only the appellant’s interests
of the administration of justice: R. v. T.S., 2012 ONCA 289, 284 C.C.C. (3d) 394,
See T.S., at para. 115; Truscott (2007), at para. 92; Snyder, at para. 45. See also
Palmer, at p. 775.
[102] The cogency requirement obliges an appellate court to ask and respond
to three questions:
potential (but not the actual) probative value of the proposed evidence. It
necessarily follows that this weighing be contextual, taking into account the
evidence adduced and the positions advanced at trial: T.S., at para. 117;
Truscott (2007), at para. 100; R. v. Reeve, 2008 ONCA 340, 233 C.C.C. (3d)
the evidence proposed for admission. This qualitative assessment calls for a
careful and critical evaluation of the proffered evidence and the credibility of the
witness who offers it. That evaluation is not made with a view to determining the
ultimate reliability and credibility of the evidence, but rather in the context of
[105] Evidence proposed for admission on appeal targets the reliability of the
fact that was material to the ultimate finding of guilt. In this way, the appellant
calls into question the reliability of the verdict by producing evidence that the
underpinnings of the trial verdict: Truscott (2007), at para. 82; T.S., at para.120.
[107] On other occasions, the proposed fresh evidence is not concerned with
re-litigating the findings of fact made at trial. Rather, the proposed evidence
maligns the fairness of the trial process that yielded the unfavourable findings.
trial materially interfered with the appellant’s right to make full answer and
defence. The verdict is unreliable because it was the result of a fatally flawed trial
Crown witness or the reliability of his or her testimony, including testimony that is
[109] One method of impeaching the credibility of a witness called at trial or the
reliability of the witness’ evidence is by the proffer for reception of evidence that
the appellate court must assess the credibility of the recantation. This is so even
where the recantation is offered for the limited purpose of impeaching the
contrary evidence the witness gave at trial: Snyder, at para. 56; Babinski, at
paras. 51-52. The ease with which mere recantations can be fabricated demands
must be satisfied to permit the introduction of fresh evidence. Some factors that
might include:
See R. v. Hache (1999), 136 C.C.C. (3d) 285 (N.S.C.A.), at paras. 51-52.
[114] Hearsay is an out-of-court statement tendered for the truth of its contents.
Generally, hearsay is not taken under oath; the trier of fact is deprived of the
2017 SCC 35, [2017] S.C.J. No. 35, at para. 20. The hearsay statement may be
inaccurately recorded. The trier of fact cannot easily investigate the declarant’s
2 S.C.R. 787, at para. 2; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at
para. 32.
paras. 22-23.
substitutes for testing truth and accuracy (procedural reliability), or there are
61-63; R. v. Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30.
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video recording the statement; an oath or its equivalent; a warning about the
to consider the circumstances in which it was made and any evidence that
corroborates or conflicts with it. The standard for substantive reliability is high.
This requires that a judge or court be satisfied that the statement is so reliable
[119] It is common ground that the 911 call, which summoned police to the
information that was not disclosed prior to trial, an appellant must first establish
Dixon, [1998] 1 S.C.R. 244, at para. 22; R. v. Taillefer; R. v. Duguay, 2003 SCC
probabilities, that the disclosure failure impaired the appellant’s right to make full
impaired their right to make full answer and defence, an appellant must
outcome at trial or the overall fairness of the trial process: Dixon, at para. 34; R.
[123] To appraise the impact of the disclosure failure on the reliability of the trial
could have had an impact on the verdict rendered: Taillefer, at para. 82; R. v.
Illes, 2008 SCC 57, [2008] 3 S.C.R. 134, at para. 65; Dixon, at para. 36.
the trial process, we must assess, on the basis of a reasonable possibility, the
that could have been available to the defence if timely disclosure had been
made: Dixon, at para. 36; Illes, at para. 65; Taillefer, at paras. 83-84.
overall fairness of the trial process is the diligence of defence counsel in pursuing
overall fairness of the trial process: Dixon, at para. 37. Indeed, where defence
default affected the overall fairness of the trial: Dixon, at para. 38; R. v.
[126] As I will explain, I would not admit the recantation evidence proffered
through J.C. as fresh evidence, either for the truth of its contents or for
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impeachment purposes. Nor would I set aside the appellant’s conviction on the
basis of the Crown’s failure to disclose K.C.’s 911 call as part of its disclosure
[127] I will consider first the admissibility of the recantation evidence, thereafter
[128] The appellant seeks leave to introduce as fresh evidence the affidavit and
on December 28, 2013, with his brother, K.C., about the evidence K.C. gave at
[130] The appellant proposes the admission of this evidence for either or both
of two purposes:
K.C.; and
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[132] Recall that one of the requirements to be met before an appellate court
can receive further evidence on appeal is that the proposed evidence must be
its recipient to establish the truth of what is expressly said or impliedly asserted,
J.C.’s proposed evidence of what K.C. told him about the incident and his
[134] To overcome the hearsay objection, which remains pertinent even though
the party tendering the proposed evidence is the defence, the appellant must be
recantation might attract the penal interest exception, on balance, the claim
[136] The specific hearsay danger raised by K.C.’s alleged statement is the
inability of the trier of fact to assess whether K.C. lied at trial about the sounds he
(procedural reliability); or
[137] As for procedural reliability, a search for adequate substitutes for testing
the evidence in light of the fact that the declarant has not given the evidence in
court, under oath or its equivalent, and under the scrutiny of contemporaneous
evaluate the truth and accuracy of the hearsay statement as the recipient reports
it.
[138] In this case, none of the usual surrogates are present. The statement was
not recorded in any manner, let alone by video. Indeed, we cannot be satisfied
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that we have a full understanding of either the context in which the statement
was made or the full substance of what was said. The declarant was not under
basis upon which to evaluate the truth and accuracy of the statement as reported
and narration.
admissible if the circumstances in which it was made and any evidence that
like “made under circumstances which substantially negate the possibility that the
at para. 72.
[140] The circumstances in which the statement proposed for admission here is
said to have been made simply cannot satisfy the requirements of substantive
reliability. The report by the recipient sheds little light on the context in which the
statement was made, apart from the fact that both the declarant and the recipient
were drinking and the declarant may have taken drugs earlier. By his own
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scrutiny when tendered as proof of its contents leaves for determination its
In each case, the witness’ denial of the statement may be contradicted by proof
basis of bias, interest or corruption requires that the witness be present (actually
or virtually) in the courtroom, under oath or its equivalent, in the presence of the
the basis of its impeachment value at a new trial. K.C. will not be a witness, thus
interest or corruption. If a new trial were ordered, and his prior testimony
admitted under s. 715 of the Criminal Code or the common law exception for
unavailing.
[145] In the result, I would not admit the proposed evidence of J.C. for
[146] The appellant advances two arguments in connection with the 911 call
made by K.C. The common remedy sought is a new trial, either on the ground of
evidence.
[149] The parties agree that the Crown should have disclosed the 911 call to
the defence as part of the Crown’s first party disclosure obligations under
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Stinchcombe. The call was the genesis of the police attendance at the family
home and the arrest of the appellant. It was part of the fruits of the investigation,
[150] It is common ground that the reason the 911 call was not disclosed was
because the local Crown Attorney’s office had a policy not to provide disclosure
of 911 calls as part of initial disclosure. During the case management phase of
proceedings, upon request by either party, the Crown would obtain disclosure of
the 911 call from a unit of the Peel Regional Police and provide it to defence
counsel.
constitutional entitlement. If it persists to this day, it has exceeded its best before
[152] The right to full disclosure is just one component of the right to make full
answer and defence. It does not follow, as the night the day, that solely because
the appellant’s right to full disclosure was breached, his Charter right to make full
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answer and defence was also compromised. To obtain a new trial on the basis of
about which he testified at trial, the 911 call could have been used to refresh his
memory on subjects about which his recollection failed at trial, or to impeach his
testimony to the extent of any inconsistencies between that testimony and the
911 call.
[154] On the other hand, a fair reading of the 911 call as a whole reveals that it
was largely consistent with K.C.’s trial testimony on material issues. It provides
no basis for a claim of joint fabrication or any tenable claim of bias, interest or
corruption. We have no evidence from trial counsel about any potential use he
may have made of the 911 call had it been disclosed in advance of trial. In
remember the very limited role K.C.’s evidence occupied in the proof of guilt. He
was an earwitness to events, not an eyewitness. The trial judge accepted the
complainant’s evidence about the events in the bedroom and made but passing
also knew the identity of the caller. A police officer who responded to the home
testified that he did so in answer to a 911 call. The officer had included this event
in his notes disclosed to defence counsel in advance of trial. K.C. testified that he
made the 911 call. Yet, despite knowledge of the existence of the call, defence
counsel, who is not said to have provided ineffective assistance, did not seek
disclosure of the call or complain that it had not been disclosed. In these
simply cannot accede to a submission that the failure to disclose affected the
[156] Nor would I admit the 911 call as fresh evidence on appeal. As evidence
of the truth of its contents, the call would not satisfy the reliability requirement on
either a procedural or substantive basis. Even if it were received under the res
gestae exception, it would not affect the verdict rendered at trial since it is largely
inculpatory of the appellant and consistent with K.C.’s testimony at trial. This
evidence was also available at trial, yet no effort was expended to obtain it.
CONCLUSION