



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)      any of the following offences;

(i)       an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)      two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in any of subparagraphs (a)(i) to (iii).

(2)      In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)      at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the complainant of the
    right to make an application for the order; and

(b)      on application made by the complainant,
    the prosecutor or any such witness, make the order.

(3)      In proceedings in respect of an offence
    under section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(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).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. M.G.T., 2017 ONCA 736

DATE: Sept 22, 2017

DOCKET: C60364

Watt, Benotto and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

M.G.T.

Appellant

Michael W. Lacy, for the appellant

Luke Schwalm, for the respondent

Heard: June 29, 2017

On appeal from the conviction entered on September 23, 2013 by
    Justice Ian B. Cowan of the Ontario Court of Justice.

Watt J.A.:

[1]

In May, 2013, a family home was in
    turmoil.

[2]

M.G.T. thought his wife was
    unfaithful.

[3]

His wife thought he was paranoid.
    She was making arrangements to leave him.

[4]

M.G.T.s friend K.C. had lived in
    the family home for several months. M.G.T. ordered him to leave by the end of
    the week.

[5]

Then things got worse.

[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 took him into custody.

[7]

The wife testified at her
    husbands trial. So did K.C. The judge said that K.C.s testimony confirmed
    parts of the wifes account of what had happened.

[8]

The trial judge found M.G.T.
    guilty of sexual assault and entered stays on the counts of assault and
    unlawful confinement.

[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 judge to call K.C. as a witness so
    that he could be cross-examined about his comments to J.T. and the truthfulness
    of his testimony at trial.

[11]

The trial judge dismissed the
    application to re-open the defence case, 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 request. He also seeks leave to introduce as fresh
    evidence another alleged recantation by K.C. of his trial testimony and the
    transcript of K.C.s 911 call, which had not been disclosed prior to or at
    trial.

[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 result, dismiss the appeal.

THE BACKGROUND FACTS

[14]

To begin, it is helpful to canvass briefly the principals, their
    relationship, the events underpinning the conviction under appeal, the
    circumstances giving rise to the application to re-open the defence case and
    the trial judges reasons for dismissing that application.

The Principals and their Relationship

[15]

M.G.T. and his wife
had been married for
    17 years. They lived in the family home with their three children and M.G.T.s father.
    M.G.T.s friend K.C. 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 that her children did not have to
    change schools.

The Early Evening of May 26, 2013

[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. appeared to be under the influence of crack
    cocaine.

[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.

The Relevant Events

[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 intercourse on her despite her lack of consent,
    called her names, assaulted her and prevented her from leaving their bedroom.

[20]

M.G.T. testified that he entered the
    bedroom he shared with his wife and 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 couples 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
    weeks end and he had no place to go. He similarly rejected counsels
    suggestion that he made the 911 call by pre-arrangement with M.G.T.s wife.

The Reasons for Judgment

[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
Kienapple v. The
    Queen
, [1975] 1 S.C.R. 729.

[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 judge unequivocally rejected M.G.T.s version of
    events.

[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 K.C.s evidence played in his findings of guilt:

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.]

The Application to Re-open

[26]

On December 3, 2013, a date on which sentencing proceedings were to
    begin, trial counsel for M.G.T.
made an
    application to re-open the defence case. In the event that the trial judge were
    to permit re-opening, counsel asked the judge to subpoena K.C. to testify.

[27]

In support of the application, trial
    counsel filed two affidavits: one from M.G.T. and the second from M.G.T.s brother,
    J.T.

[28]

In his affidavit, M.G.T. swore that his
    brother, J.T., told him that he, J.T., contacted K.C. on October 29, 2013.
    According to J.T., as related by M.G.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.

The Ruling of the Trial Judge

[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
    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 to J.G. was inadmissible double hearsay, although the fact of
    the conversation explained why J.T. spoke to K.C.

[32]

According to the trial judge, the affidavit of J.T.
posed hearsay problems, but more importantly it reported
    on an alleged conversation
that was entirely devoid of context, thus
    fell short of what was required to invoke the discretion to re-open.

THE GROUNDS OF APPEAL

[33]

M.G.T.
(the appellant) advances two
    grounds of appeal. First, he alleges an error in the trial judges conduct of
    the trial. Second, he seeks leave to introduce fresh evidence on two discrete
    but related issues.

[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 evidence of K.C.s brother, J.C.,
    concerning K.C.s subsequent recantation of what he said about the appellants
    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, which the Crown had not
    disclosed and the defence had not requested before or during the appellants
    trial.

Ground #1: The Application to Re-open the Defence Case

[36]

The first ground of appeal
    challenges the correctness of the trial judges decision to refuse to permit
    defence counsel to re-open the defence case after conviction but prior to
    sentence.

[37]

In earlier paragraphs of these
    reasons, I have described the circumstances in which the application was
    advanced and summarized the trial judges reasons for dismissing it. Nothing
    will be gained by their repetition here. That said, some aspects of the application
    are worth emphasis.

[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 compel K.C.s attendance.

[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 him that this whole thing was
    planned. J.G. did not file an affidavit. J.T. offered no further details.

[40]

Trial counsel did not subpoena K.C.
    He called no
viva voce
testimony
    on 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
    interview or service of a subpoena on him.

The Arguments on Appeal

[41]

The appellant begins with a reminder that the testimony of K.C. was a
    crucial component of the trial judges analysis leading to findings of guilt.
    It furnished confirmation of the complainants version of events, in
    particular, their 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
    appellants 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 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 complainants version of events. It could not have been
    obtained in advance of trial because K.C.s alleged recantation only emerged
    after the appellants 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
    reasonable conclusion on the issue. His decision is entitled to deference.

[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-open is in reality an attempt to reverse a tactical decision made at trial.

[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 exceptional admission of
    hearsay. What is more, the appellant failed to provide any first-hand
    information from K.C. himself or offer any explanation for his failure to do
    so.

The Governing Principles

[46]

Despite the comparative infrequency with which applications to re-open
    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
    same application made prior to an adjudication of guilt. This is so because a
    more exacting standard is required to protect the integrity of the criminal
    trial process, including the enhanced interest in finality:
R. v. Kowall
(1996), 108 C.C.C. (3d) 481, (Ont. C.A.), at para. 31.

[48]

The criteria to be met 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 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.

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 of the evidence 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 courts 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.

[55]

A trial judges decision on post-verdict re-opening of the defence case
    involves the exercise of judicial discretion. Where that discretion has been
    exercised in accordance with the governing legal principles, is unencumbered by
    any material misapprehension of evidence and is not unreasonable, it is
    entitled to significant deference on appeal:
R. v. Kippax,
2011 ONCA
    766, [2011] O.J. No. 5494, at para. 64.

[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 his or her discretionary authority to call witnesses in
    order to maintain or to provide a party with a tactical advantage:
R. v.
    Finta
(1992), 73 C.C.C. (3d) 65 (Ont. C.A.), at pp. 205-206, affirmed
    [1994] 1 S.C.R. 701.

The Principles Applied

[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 application to re-open the defence case. His reasons disclose no
    error in principle or misapprehension of any material evidence. Nor is his
    decision to dismiss the application unreasonable.

[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.

[61]

The appellant sought two orders from the trial judge:

i.

an order permitting the defence to re-open its case on the basis of
    post-verdict recantations by K.C. of his evidence at trial; and

ii.

an order, later varied to issuance of a subpoena, that the trial judge
    call K.C. as a witness on the re-opening.

[62]

The evidentiary foundation placed before the trial judge on the application
    consisted of two affidavits:

i.

the affidavit of the appellant describing a conversation he had with his
    brother, recounting a conversation his brother had with K.C., in which his brother
    claimed K.C. said his evidence at trial was not the truth; and

ii.

the affidavit of the appellants brother, J.T., recounting a
    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-conviction conversation J.T.
    had with K.C. in which K.C. explained this whole thing was planned, then
    clammed up.

[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 and on the nature of the relationship between J.G. and J.T. Equally sparse
    is the evidence about any efforts to locate, interview or serve a subpoena on K.C.,
    despite earlier contacts with him and knowledge of his impending court
    appearance.

[64]

Both affidavits tendered on the re-opening application are fraught with
    issues about admissibility.

[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 exception, nor under the principled approach.

[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 meaning, they lack relevance.

[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 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 conviction.

Ground #2: The Fresh Evidence Ground

[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. in one way or another.

[70]

Proposed for reception as fresh evidence are:


i.

the affidavit and subsequent cross-examination of K.C.s brother, J.C.,
    describing an alleged post-verdict recantation by K.C. of the evidence he gave
    at the appellants trial; and


ii.

the recording and transcript of K.C.s 911 call on May 27, 2013,
    reporting the appellants assault on his wife.

[71]

Some further background will provide the context essential for an
    understanding of this ground of appeal.

The Recantation Evidence

[72]

J.C. is K.C.s brother. For nearly three decades he has worked for a
    company owned by the appellants brother, N.T. He has known the appellant for
    more than a quarter century. Although the business was recently sold, J.C.
    retains ties to the appellants family.

The Alleged Recantation

[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. appeared to
    be lost in thought. J.C. asked him what was wrong.

[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 cheques so that K.C. could continue to collect employment insurance
    benefits while working.

[76]

In cross-examination, J.C. acknowledged that he saw his brother every other
    weekend over the relevant months, but that it was only on the one occasion 
    December 28, 2013  that K.C. spoke about his evidence at the appellants
    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 the alleged assault.

[77]

J.C. conceded that he never spoke to the appellant about K.C.s disclosure.
    He said nothing to the appellants brother N.T. for about a year after K.C.s visit.
    J.C. acknowledged that he didnt have a good memory of his conversation with K.C.
    when he was cross-examined 32 months later.

The Death of K.C.

[78]

On January 10, 2014, about two weeks after the alleged recantation to J.C.,
    K.C. died by suicide.

The Disclosure of the Recantation

[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 appellants trial was on 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 the
    appellants conviction and sought the details of their conversation.

[80]

In cross-examination, J.C. acknowledged that he had spoken to the appellants
    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 made it difficult for him to attend.

The 911 Call

[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 for the appellant, who arranged for its transcription.

[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 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.

[83]

Counsel agree that the failure to disclose the 911 call was the result
    of a policy in the Crown Attorneys Office in Peel Region. 911 calls were not
    included in initial disclosure. During the case management phase of
    proceedings, 911 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 would, in turn, disclose it defence counsel.

[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
    insisted on remaining anonymous and resisted the operators efforts to obtain
    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.

The Arguments on Appeal

[85]

The appellant advocates the reception of the evidence of J.C. and argues
    that it requires that we order a new trial.

[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 couple of weeks after the sentence had been imposed.

[87]

According to the appellant, if K.C. were alive, he could be
    cross-examined on what he said to his brother. This evidence could be used to
    impeach his credibility, since it amounted to a statement inconsistent with his
    trial testimony on a material issue. It could also be used as substantive
    evidence to exculpate the appellant, since it tended to show that what was
    alleged to have occurred simply did not take place.

[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 necessity requirement is met by the death of the declarant. Reliability is
    established by the absence of any motive to lie and confirmation by similar
    admissions made to others. And, as hearsay tendered by the defence, the rigours
    of the exclusionary rule are tempered by the need to prevent an injustice.

[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 evidence received at trial, to have affected the verdict.

[90]

Turning to the 911 call, the appellant says that the call should have
    been disclosed in advance of trial. After all, it is presumptively first party
    disclosure. The failure of defence counsel to request it is irrelevant for
    fresh evidence 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 trial. Denial of this valuable impeachment tool
    restricted the scope of impeachment available to the appellant and warrants a
    new trial.

[91]

The respondent resists both aspects of this ground of appeal.

[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 for admissibility is advanced.

[93]

Impeachment of a witness on the basis of an inconsistent statement about
    subject-matter of which the witness has previously testified, or on the 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.
    There can be no confrontation for want of the witness to be confronted.

[94]

As substantive evidence, the respondent says, the evidence of J.C.
    cannot surmount the barrier erected by the hearsay rule. No listed exception
    can be summoned. And the proposed evidence cannot satisfy the reliability
    requirement under the principled approach on either a substantive or procedural
    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.

[95]

Even if the proposed evidence were to satisfy the
    admissibility requirement of
Palmer
,

the respondent says it should be
    rejected for want of 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 credibility cannot reasonably be expected to have
    affected the verdict. In addition, J.C.s evidence is itself unreliable.
    Internally inconsistent, the product of faulty recollection and lacking detail.

[96]

As for the 911 call, the
    respondent accepts that its disclosure is governed by
R. v.

Stinchcombe
, [1991] 3 S.C.R. 326,
an
    obligation that cannot be trumped by the policy of the local Crown Attorneys
    office. However, in the end, the Crowns failure to disclose it did not impair
    the appellants right to make full answer and defence. There is no reasonable
    possibility that the disclosure failure affected either the outcome or the
    fairness of the appellants trial.

[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 of any pre-concert
    with the complainant and some of his comments belie any 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 that the
    failure to disclose it affected the fairness of the trial.

The Governing Principles

[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 we may admit evidence of a post-verdict recantation by a witness who
    testified at trial. The second concerns the authority to interfere with a
    verdict rendered at trial because of the failure of the Crown to honour its
    disclosure obligations.

The Admissibility of Fresh Evidence

[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 court must undertake a context-sensitive inquiry, taking cognizance
    of all the circumstances of the case. This encompasses not only the appellants
    interests in fully pursuing his appellate remedies, but also the broader,
    long-term interests of the administration of justice:
R. v. T.S.,
2012
    ONCA 289, 284 C.C.C. (3d) 394, at para. 114;
Snyder
, at para. 44;
Truscott
(2007), at para. 81.

[101]

To engage our discretion to receive further evidence on appeal requires
    us to answer three questions:


i.

Is the proposed evidence admissible under the rules of evidence
    applicable to criminal trials? [the
admissibility
requirement]


ii.

Is the evidence sufficiently cogent that it could reasonably be expected
    to have affected the verdict rendered at trial? [the
cogency
requirement]


iii.

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

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:

·

Is the evidence
relevant
in that it bears upon a
    decisive or potentially decisive issue at trial?

·

Is the evidence
credible
in that it is reasonably
    capable of belief?

·

Is the evidence
sufficiently

probative
that,
    when taken with the other evidence adduced at trial, it could
reasonably
be
expected
to have
affected
the
result
?

See
T.S.
, at para. 118;
Truscott
(2007)
, at para. 99.

[103]

The
cogency
requirement

directs us to weigh, to some extent, the 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) 104, at para. 72.

[104]

What the
cogency
requirement

demands is a qualitative assessment of 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
    determining whether the proffered evidence is sufficiently cogent to warrant
    its admission on appeal. A necessary first step in the qualitative assessment
    is the identification of the purpose or purposes for which the evidence is
    admissible:
Snyder
, at paras. 48, 50 and 51;
Truscott
(2007)
, at para. 100.

[105]

Evidence proposed for admission on appeal targets the reliability of the
    verdict rendered at trial.

[106]

Sometimes, the proposed fresh evidence sets its sights on a finding of
    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 appellant claims would remove or render unreliable one of the
    factual 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. The
    verdict is unreliable because something that happened, or didnt happen, at
    trial materially interfered with the appellants right to make full answer and
    defence. The verdict is unreliable because it was the result of a fatally
    flawed trial process, thus amounts to a miscarriage of justice:
T.S.
,
    at para. 121;
Truscott
(2007)
,
    at para. 85.

[108]

An appellant may challenge the reliability of a verdict reached at trial
    by introducing further evidence on appeal that impeaches the credibility of a
    crucial Crown witness or the reliability of his or her testimony, including
    testimony that is supportive of another essential Crown witness:
T.S.
,
    at para. 116;
R. v. Hurley
, 2010 SCC 18, [2010] 1 S.C.R. 637, at paras.
    17-18.

[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 witness has recanted his or her trial testimony or an
    out-of-court statement admitted at trial under a listed or principled hearsay exception.

[110]

When evidence of a recantation of trial evidence is tendered on appeal,
    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 an especially rigorous qualitative assessment where the evidence
    proposed for admission on appeal is a post-trial recantation of a witness trial
    testimony:
Snyder
, at paras. 61-62;
Babinski
, at para. 62.

[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.

other relevant circumstances surrounding the recantation;

iv.

whether the witness has recanted under oath or its equivalent;

v.

the witness reputation for truthfulness; and

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 reasonably 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.

[113]

Something should be said about the
admissibility
requirement in
    connection with fresh evidence.

[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 opportunity to observe the declarants demeanour at the time
    the statement is made; and hearsay cannot be tested through cross-examination:
R.
    v. Bradshaw
, 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 declarants perception, memory, narration or sincerity:
R.
    v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 2;
R. v.
    Baldree
, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 32.

[115]

The presumptive inadmissibility of hearsay may be overcome where its
    proponent establishes on a balance of probabilities that what is proposed for
    admission falls within a categorical exception, or satisfies the twin criteria
    of necessity and threshold reliability under the principled approach:
Bradshaw
,
    at paras. 22-23.

[116]

A proponent can overcome hearsay dangers and establish threshold
    reliability by showing, on a balance of probabilities, either that there are
    adequate substitutes for testing truth and accuracy (procedural reliability), or
    there are sufficient circumstantial or evidentiary guarantees that the
    statement is inherently trustworthy (substantive reliability):
Bradshaw
,
    at para. 27;
Khelawon
, at paras. 61-63;
R. v. Youvarajah
,
    2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30.

[117]

Procedural
reliability requires adequate substitutes for
    personal presence, the oath or its equivalent and contemporaneous
    cross-examination. This is so that the trier of fact has a satisfactory basis
    to internally evaluate the truth and accuracy of the hearsay statement. Proxies
    for traditional safeguards include video recording the statement; an oath or
    its equivalent; a warning about the consequences of lying; and, usually, some
    form of cross-examination of the declarant, such as at the preliminary inquiry,
    or of a recanting witness, at trial:
Bradshaw
, at para. 28.

[118]

Substantive
reliability is established if the hearsay statement
    is inherently trustworthy. To determine whether a statement is inherently
    trustworthy, we are 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 that contemporaneous cross-examination of the
    declarant would add little, if anything, to the process:
Bradshaw
, at
    para. 40.

The 911 Call

[119]

It is common ground that the 911 call, which summoned police to the family
    home to respond to a complaint of domestic assault, should have been disclosed
    to the defence under
Stinchcombe
.

[120]

Where evidence proposed for admission on appeal has to do with information
    that was not disclosed prior to trial, an appellant must first establish that
    the undisclosed information meets the
Stinchcombe
standard and thus
    amounts to a breach of the appellants constitutional right to disclosure:
R.
    v. Dixon
, [1998] 1 S.C.R. 244, at para. 22;
R. v. Taillefer
;
R.
    v. Duguay
, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 61;
T.S.
,
    at para. 123.

[121]

Provided the undisclosed information satisfies the
Stinchcombe
threshold,
    thus the failure to disclose it establishes a breach of the appellants
    constitutional right to disclosure, the appellant must next establish, on a
    balance of probabilities, that the disclosure failure impaired the appellants
    right to make full answer and defence:
Dixon
, at para. 33;
T.S.
,
    at para. 124.

[122]

To establish on a balance of probabilities that the failure to disclose
    impaired their right to make full answer and defence, an appellant must
    demonstrate that there is a reasonable possibility the non-disclosure affected
    the outcome at trial or the overall fairness of the trial process:
Dixon
,
    at para. 34;
R. v. C.(M.H.)
, [1991] 1 S.C.R. 763, at p. 776.

[123]

To appraise the impact of the disclosure failure on the reliability of
    the trial result, we must consider whether there is a reasonable possibility
    that the undisclosed evidence, when considered in the context of the trial as a
    whole, 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.

[124]

To evaluate the impact of the disclosure failure on the overall fairness
    of the trial process, we must assess, on the basis of a reasonable possibility,
    the lines of inquiry with witnesses or the opportunities to garner additional
    evidence 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.

[125]

An important factor in considering the impact of a disclosure failure on
    the overall fairness of the trial process is the diligence of defence counsel
    in pursuing disclosure from the Crown. A lack of due diligence in pursuing
    disclosure is a significant factor in determining whether the Crowns
    non-disclosure affected the overall fairness of the trial process:
Dixon
,
    at para. 37. Indeed, where defence counsel knew or ought to have known of a
    disclosure failure or deficiency on the basis of other disclosures, yet
    remained passive as a result of a tactical decision or lack of due diligence,
    it is difficult to accede to a submission that the disclosure default affected
    the overall fairness of the trial:
Dixon
, at para. 38;
R. v.
    McAnespie
, [1993] 4 S.C.R. 501, at pp. 502-503.

The Principles Applied

[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
    impeachment purposes. Nor would I set aside the appellants conviction on the
    basis of the Crowns failure to disclose K.C.s 911 call as part of its
    disclosure obligations or admit that call as fresh evidence on the hearing of
    the appeal.

[127]

I will consider first the admissibility of the recantation evidence,
    thereafter the 911 call.

The Recantation Evidence

[128]

The appellant seeks leave to introduce as fresh evidence the affidavit
    and accompanying cross-examination of J.C., who claims to have had a
    conversation on December 28, 2013, with his brother, K.C., about the evidence K.C.
    gave at the appellants trial.

[129]

As J.C. recounts it, K.C. told him that he (K.C.):

i.

never heard M.G.T. hit his wife;

ii.

heard only shouting;

iii.

lied when he said he heard three strikes; and

iv.

lied because M.G.T.s wife made him do so as a set-up.

[130]

The appellant proposes the admission of this evidence for either or both
    of two purposes:

i.

as evidence of the truth of the statements J.C. attributes to K.C.; and

ii.

as evidence with which to impeach the account of the incident K.C.
    provided at the appellants trial.

[131]

Turning first to the claim that the evidence should be received as proof
    of the truth of what K.C. is alleged to have said to his brother.

[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
admissible
under the rules of evidence applicable to criminal trials.

[133]

As an out-of-court statement of a deceased declarant tendered through
    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 testimony at trial is hearsay and presumptively inadmissible.

[134]

To overcome the hearsay objection, which remains pertinent even though
    the party tendering the proposed evidence is the defence, the appellant must be
    able to satisfy the requirements of a listed or the principled exception to
    defeat the rule of presumptive inadmissibility.

[135]

J.C.s evidence cannot be admitted under any listed or category
    exception to the hearsay rule. Although some aspects of K.C.s alleged recantation
    might attract the penal interest exception, on balance, the claim would fall
    foul of the vulnerability requirements.

[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 heard coming from the bedroom. Hearsay can be admitted in evidence,
    by exception to the presumptive rule of exclusion, if it is both necessary and
    sufficiently reliable. Where necessity is established by the death of the declarant,
    the hearsay dangers can be overcome and threshold reliability established by
    showing that there are:

i.

adequate substitutes for testing truth and accuracy (
procedural
reliability); or

ii.

sufficient circumstantial or evidentiary guarantees that the statement
    is inherently trustworthy (
substantive
reliability).

[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 cross-examination yields no adequate substitutes.
    After all, the task of these substitutes is to provide a satisfactory basis for
    the trier of fact to rationally 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 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 oath or its equivalent. Nobody warned K.C. about the consequences of
    lying. No form of cross-examination took place. What is lacking here is any
    satisfactory basis upon which to evaluate the truth and accuracy of the
    statement as reported and to assess the traditional hearsay dangers of
    perception, memory, sincerity and narration.

[139]

Turning to
substantive
reliability
,
    a hearsay statement may also be admissible if the circumstances in which it was
    made and any evidence that corroborates or conflicts with it establish that the
    statement is inherently trustworthy. The standard for substantive reliability
    is high, captured in language like made under circumstances which
    substantially negate the possibility that the declarant was untruthful or
    mistaken, or so reliable that it is unlikely to change under
    cross-examination:
R. v. Smith
, [1992] 2 S.C.R. 915, at p. 933;
Khelawon
,
    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 admission in cross-examination, the recipient has a poor recollection of
    what was said. We cannot be sure we have the complete statement of the
    declarant.

[141]

The rejection of the proposed evidence because it cannot survive hearsay
    scrutiny when tendered as proof of its contents leaves for determination its
    admissibility for impeachment purposes.

[142]

Among the impeachment techniques available to a cross-examiner in the
    circumstances of this case are cross-examination:

i.

on a statement relative to the same subject-matter about which the
    witness testified at trial, but inconsistent with the witness trial testimony;
    and

ii.

on bias, interest or corruption arising out of an antecedent agreement
    to provide false testimony for a specific purpose.

In each case, the witness denial of the statement may
    be contradicted by proof that the statement was made.

[143]

To impeach a witness on the grounds of testimonial inconsistency on the
    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 trier of fact. It is in these circumstances that impeachment
    occurs. But that cannot happen here. For there is no witness to be impeached. K.C.
    is dead.

[144]

It cannot be in the interests of justice to admit the proposed evidence
    on the basis of its impeachment value at a new trial. K.C. will not be a
    witness, thus cannot be impeached either on the basis of testimonial
    inconsistency or bias, 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 evidence previously given, impeachment on either basis
    would be equally unavailing.

[145]

In the result, I would not admit the proposed evidence of J.C. for
    substantive or impeachment purposes. The proposed evidence cannot satisfy the
    admissibility requirement for fresh evidence. It is unnecessary to consider
    whether it would also fail the cogency requirement.

The 911 Call

[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
    constitutional infringement or as a consequence of admitting the 911 call as
    fresh evidence.

[147]

As I will explain, I would not give effect to either submission.

[148]

To take first the claim of constitutional infringement.

[149]

The parties agree that the Crown should have disclosed the 911 call to
    the defence as part of the Crowns first party disclosure obligations under
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,
    relevant and not subject to any realistic claim of privilege. Once ascertained,
    its originator would be a Crown witness at trial.

[150]

It is common ground that the reason the 911 call was not disclosed was
    because the local Crown Attorneys 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.

[151]

It is unfathomable that over two decades after
Stinchcombe
, a
    local Crown Attorneys office would promulgate and adhere to a policy of
    non-disclosure, at once ill-conceived and constitutionally infirm. Such a policy
    amounts to an abrogation of the Crowns constitutional obligation, the creation
    of a
Charter
-free zone that bars entry by an accused to obtain his or
    her constitutional entitlement. If it persists to this day, it has exceeded its
    best before date by about 35 years and should cease immediately.

[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 appellants right to full disclosure was breached, his
Charter
right to make full answer and defence was also compromised. To obtain a new
    trial on the basis of non-disclosure, the appellant must establish, on a
    balance of probabilities, that his right to make full answer and defence was
    impaired by showing that there is a reasonable possibility the non-disclosure
    affected the outcome or the overall fairness of the trial proceedings.

[153]

As a statement of the witness K.C. relative to the same subject-matter
    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 assessing the impact of non-disclosure on the outcome of trial, we must
    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
    complainants evidence about the events in the bedroom and made but passing
    reference to the confirmatory potential of K.C.s evidence, a version
    consistent with the 911 call.

[155]

Assessing the potential impact of the non-disclosure on the overall fairness
    of the trial proceedings involves a process of weighing and balancing. In this
    case, there can be no doubt that defence counsel knew of the 911 call. He 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 circumstances, especially in the absence of any
    explanation from trial counsel, I simply cannot accede to a submission that the
    failure to disclose affected the fairness of the appellants trial.

[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

[157]

In the result, I would dismiss the appeal.

Released: DW.    Sep 22, 2017

David
    Watt J.A.
I agree M.L. Benotto J.A.
I agree L.B. Roberts J.A.


