





CITATION:

R. v. Snyder, 2011
          ONCA 445



DATE: 20110610



DOCKET: C48284



COURT OF APPEAL FOR ONTARIO



Doherty, Feldman and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Kyle Snyder



Appellant



Brian Snell, for the appellant

Craig Harper, for the respondent



Heard:  March 10, 2011

On appeal from the convictions
          entered by Justice D. Belch of the Superior Court of Justice on May 22, 2007.

Doherty J.A.:






I

OVERVIEW

[1]

The appellant was convicted of one count of
    robbery and one count of breaking and entering with intent to commit
    robbery.  He received a sentence of 29
    months.  The appellant appeals his
    convictions.

[2]

Counsel for the appellant advanced three
    submissions.  First, he argued that the
    trial judge erred in admitting, for its truth, an out-of-court statement made
    by a Crown witness, Kevin Doucette.  In
    that statement Doucette implicated the appellant in the robbery, but when he
    testified at trial, he denied knowing the appellant.  The trial judge held that the out-of-court
    statement was sufficiently reliable to justify its admission under the
    principled approach to the admissibility of hearsay evidence.

[3]

Counsels second argument rests on the alleged
    failure of the trial judge to adequately caution himself as to the dangers
    inherent in relying on the evidence of the two Crown witnesses, Doucette and
    Stuart Burgess.  Both had participated in
    the robbery, had criminal backgrounds, and were, by any definition, unsavoury
    witnesses.

[4]

Third, counsel submits that the affidavit of
    Stuart Burgess, sworn almost two years after the trial, should be admitted as fresh
    evidence on appeal.  At trial, Burgess
    testified that he committed the robbery at the appellants request in exchange
    for the forgiveness of a drug debt he owed to the appellant.  In the affidavit, Burgess recanted his trial
    testimony and claimed that the appellant had nothing to do with the robbery.  According to his affidavit, Burgess falsely
    identified the appellant because he was told to do so by others who were
    involved in the robbery.

[5]

I would dismiss the appeal.  The trial judge, no doubt influenced by trial
    counsels express concession that Doucettes statement was sufficiently
    reliable to justify its admission as an exception to the rule against hearsay,
    did not err in admitting the statement.  Nor does the record offer any support for the claim that the trial judge
    failed to take into account the self-evident dangers associated with acting on
    the testimony of Burgess and the statement of Doucette.  Finally, I would not admit the fresh evidence.  Burgesss affidavit, placed in the context of
    all of the statements he made, the evidence at trial and the cross-examination of
    Burgess on his affidavit, could not reasonably have affected the reliability of
    Burgesss trial testimony implicating the appellant.

II

THE FACTS

(a)

The robbery and arrests

[6]

On October 19, 2005, Burgess and Doucette pushed
    their way into a residence located in Kingston, Ontario.  They had reason to believe that a drug dealer
    lived in the residence and that they would find drugs and cash there.  In fact, the drug dealer had moved out about
    a month earlier, although his brother still lived there.

[7]

Burgess and Doucette entered the residence armed
    with lead pipes.  A melee ensued during the
    robbery.  Burgess was slashed across the
    face by one of the victims.  Doucette was
    also stabbed.  They fled the scene with a
    small amount of cocaine, cash and electronic items.

[8]

Burgess was bleeding profusely from the slash
    across his face.  His cohorts took him to
    the nearby hospital where, as it turns out, the police arrived shortly
    afterwards with the victims of the robbery.  The victims identified Burgess and he was arrested at the hospital.  Doucette was arrested the next morning.

[9]

Burgess and Doucette gave audiotaped statements
    to the police after their arrests.
[1]
In those statements, they both indicated that
    the appellant had asked them to commit the robbery.  Both Burgess and Doucette eventually pled
    guilty to the robbery.  Burgess testified
    at the appellants preliminary inquiry and implicated the appellant.

(b) Burgesss
    testimony

[10]

Burgess testified at trial that the appellant
    called him on the day of the robbery and offered to forgive a $600 drug debt if
    Burgess would take part in the robbery.  The appellant assured him that the robbery would yield money and drugs
    and that it would be a pushover.

[11]

According to Burgess, the appellant picked him
    up later that day outside of the hotel where Burgess lived.  They drove to a street near where the robbery
    was to occur.  Burgess testified that he,
    the appellant and Doucette sat in the backseat.  A man and a woman Burgess did not know were in the front seat.  The woman was driving.  Burgess and Doucette left the car and went to
    the residence to commit the robbery. The other three remained in the vehicle
    parked nearby.

[12]

Burgess described breaking into the residence
    and the ensuing melee during which he was slashed across the face and Doucette
    was stabbed.  According to Burgess, he
    and Doucette fled the scene of the robbery and ran back to the vehicle where
    the others were waiting.  Burgess testified
    that he gave the drugs he stole to the appellant and kept the money.

(c)  Doucettes evidence

[13]

When called to testify, Doucette could remember committing
    the robbery and being stabbed by one of the victims.  He could not recall whether anyone was with
    him during the robbery.  Doucette testified
    that he knew Stuart Burgess.  He insisted
    that he did not know and had never heard of the appellant.

[14]

The Crown was allowed to cross-examine Doucette
    on the contents of the audiotaped portion of the statement that Doucette gave
    when he was arrested the morning after the robbery.  Doucette repeatedly indicated that he was
    high on drugs when he made the statement, could not recall what he said, and
    could not comment on its truth. The trial judge admitted the statement under
    the principled exception to the rule against hearsay evidence.

[15]

In his statement, Doucette indicated that the
    appellant called him on the morning of the robbery and asked him to commit the
    robbery.  The appellant indicated that
    there were drugs and money available at the place that was to be robbed.  Doucettes statement was consistent with
    Burgesss trial testimony in many respects.  Like Burgess he described driving to the robbery from the hotel, in the
    back seat with Burgess and the appellant.  An unknown male and female sat in the front.  In his statement, Doucette described
    committing the robbery with Burgess and returning to the vehicle.  He indicated that both he and Burgess were
    injured in the robbery.  According to
    Doucettes statement, the appellant gave him some of the money stolen in the
    robbery.

[16]

Doucette was also confronted with a transcript
    of the proceedings at his guilty plea on the robbery charge.  In those proceedings, he admitted facts that
    were consistent with the contents of his statement.

(d)  The defence evidence

[17]

The appellant did not testify.  He did, however, call an alibi witness who
    indicated that the appellant was at home at the time of the robbery.  The trial judge also admitted the appellants
    statement to the police in which he told them he was at home at the time of the
    robbery.

III

THE GROUNDS OF APPEAL

(a) The admissibility of Doucettes statement

[18]

The appellant submits that the audiotaped
    portion of Doucettes statement to the police was not shown by the Crown to be
    sufficiently reliable to warrant its admissibility under the authority of
R. v. Khelawon
, [2006] 2 S.C.R. 787.  In his submissions, counsel for the appellant
    focussed on the appellants inability to effectively cross-examine Doucette on
    the contents of his statement.  Counsel
    submitted that as Doucette purported to have no recollection of making the
    statement, he could not be meaningfully questioned about the truth of its
    contents or his reasons for making it.  Counsel
    contends that without meaningful cross-examination, the other potential
indicia
of reliability could not carry
    the burden of admissibility.

[19]

The ability to cross-examine Doucette on his
    statement was an important consideration in assessing the reliability of that
    statement.  Clearly, Doucettes professed
    inability to recall making the statement was an impediment to
    cross-examination.  Crown counsels
    attempt to cross-examine him on the statement demonstrates the problems posed
    by Doucettes insistence that he could not recall making it.  Cross-examination on important aspects of the
    statement was, however, not entirely foreclosed.  Doucette could be cross-examined on what was
    the crucial part of his statement  the appellants alleged involvement in the
    robbery.

[20]

In his statement, Doucette could be heard identifying
    the appellant by name as the person who had put him up to the robbery.  In his trial testimony, Doucette said that he
    did not know the appellant and had never heard of him.  This inconsistency gave rise to the obvious
    question  how did Doucette come to name the appellant as the person who put
    him up to the robbery when, according to his testimony, he had never heard of
    the appellant?  Nothing in Doucettes
    professed inability to recall making the statement prevented full
    cross-examination on how he could name a person he claimed to have no knowledge
    of when he testified.

[21]

Counsel for the appellant did not question
    Doucette about the obvious and important inconsistency between his statement
    and his testimony.  I can only assume
    that he was not questioned because the answers would not have been helpful to
    the appellant.  Cross-examination on this
    issue was certainly possible but apparently not advisable.  Without a plausible explanation for
    identifying a person that he claimed never to have heard of, cross-examination
    of Doucette on the other details of his statement would have been of little
    assistance to the appellants cause.

[22]

I am satisfied that the trial judge correctly
    held that Doucettes statement was admissible for the truth of its
    contents.  I reach this conclusion independently
    of trial counsels concession that the statement was sufficiently reliable to
    be admitted as an exception to the hearsay rule.  I would add, however, that a concession like
    that made in this case must be given significant weight by this court.

(b)  Did the trial
    judge give himself an adequate 
Vetrovec

    warning?

[23]

The appellant submits that because the trial
    judge expressly adverted to some of the reasons for approaching the evidence of
    Burgess and Doucette with caution, it must be assumed that he did not bear in
    mind the other reasons for approaching their evidence cautiously.  This argument assumes that a trial judge
    must, in his or her reasons, address 
Vetrovec

    concerns in much the same manner as the trial judge does in his or her
    instructions to a jury.

[24]

There is no need to import the requirement of a 
Vetrovec
 caution designed to alert juries
    to the danger of relying on the evidence of certain witnesses into a trial
    judges reasons for judgment.  Judges
    know the risks inherent in relying on witnesses like Burgess and Doucette.  It would be pure formalism to require judges
    to articulate those dangers in their reasons.

[25]

This was a straightforward, short, single-issue
    case.  The Crowns case depended on Burgesss
    testimony and Doucettes statement.  The
    credibility of both was open to question for several obvious reasons.  To argue that the trial judge did not properly
    scrutinize their evidence because he did not specifically enumerate all the
    reasons for that scrutiny is to suggest that he all but missed the central
    feature of the entire case.  It would
    take more than a simple failure by the trial judge to expressly advert to the
    dangers inherent in relying on the evidence of witnesses like Burgess and
    Doucette to convince me that he did not have regard to those dangers in
    deciding the case.

(c)  The admissibility of the fresh
    evidence

(i) The substance of the fresh evidence

[26]

On February 5, 2009, almost two years after he
    testified at the appellants trial, Burgess swore an affidavit in which he
    recanted his trial testimony.  In the
    affidavit he said:

Kyle Snyder was not involved in this robbery in any
    way whatsoever.  I met Kyle a number of
    times since we had a similar circle of friends, but I did not know him
    well.  We have never really spoken to
    each other.  I never bought drugs from
    Kyle Snyder, nor have I ever owed him money.  The reason I gave Kyles name is because the people who drove me to and
    from the scene told me to give his name as the person who planned the robbery
    if I was ever caught.

[27]

In the affidavit, Burgess alleged that his drug dealer,
    whom Burgess refused to identify, had recruited him to assist in the robbery.  Burgess stated that when the police interviewed
    him, he was high on cocaine and pain killers and the police pressed him for the
    names of other persons involved in the robbery until he gave them the
    appellants name.

[28]

In addition to Burgesss affidavit and his
    cross-examination on that affidavit, counsel filed a copy of Burgesss
    statement to the police on the night of the robbery, the proceeding on his
    guilty plea, and his testimony at the appellants preliminary inquiry.  These materials were not offered as
    freestanding fresh evidence but as context to assist in determining the
    admissibility of Burgesss affidavit.  Neither
    counsel suggested that those materials were not properly part of the fresh
    evidence motion.

[29]

Burgesss statement to the police on the night
    of the robbery was given under oath after Burgess was advised of his right to
    counsel. The interview was video recorded.  Burgess told the police that he had received a telephone call from a
    friend that afternoon.  Burgess owed the
    friend money from a marijuana transaction sometime earlier.  The friend offered to forgive the debt if Burgess
    would go to a residence with another person and stand there while the other
    person robbed the cocaine dealer who lived there.  Burgess initially said that he did not want
    to give the police the names of anyone else involved.

[30]

Burgess went on in his statement to describe
    being picked up in a motor vehicle and driven to the scene of the robbery.  He described the robbery, his injuries and
    his visit to the hospital.  Burgess did
    not place the person who he said had recruited him for the robbery in the
    car.  He referred to three other
    individuals in the car, including Doucette.

[31]

After Burgess had gone over the robbery in some
    detail, one of the police officers said:

You dont wanna tell us who the fellow that called
    you, you wont tell us his name

[32]

Burgess replied:

His name is Kyle Snyder.

[33]

Burgess explained that Snyder was a drug dealer
    from whom he had purchased marijuana some time earlier.  Burgess owed Snyder money as a result of that
    purchase.  As far as Burgess was aware,
    Snyder and Doucette had known each other in jail.  After Burgess identified Snyder as the person
    who solicited his assistance in the robbery, the police did not ask Burgess
    whether Snyder was in the car before and/or after the robbery.

[34]

Burgess testified at the appellants preliminary
    inquiry in May 2006, some seven months after he had been arrested and given his
    statement to the police.  Burgesss
    testimony was consistent with his statement, except in his testimony he placed
    the appellant in the car that had picked him up and driven him, Doucette and
    two others to the robbery scene and then to the hospital after the robbery.

[35]

At the preliminary inquiry, Burgess testified
    that he had seen the appellant in jail while awaiting trial.  The appellant had asked Burgess to testify on
    his behalf, but Burgess had refused.  Crown counsel asked Burgess whether he had been threatened while in
    custody.  Burgess answered:

Well, not necessarily.  Let them come and threaten me

Im  Im not scared of the threatening.

[36]

Eight months after testifying against the
    appellant at the appellants preliminary inquiry, Burgess entered a guilty plea
    on the robbery charge.  The facts read in
    to support the guilty plea identified Snyder as the person who enlisted Burgess
    to commit the robbery in exchange for forgiveness of a drug debt.  Burgess expressly stated that the facts read in
    were true and that he had nothing to add to them.  He also indicated that he had not been put
    under any pressure and was pleading guilty of his own free will, insisting that
    he wanted to take responsibility for his actions.

[37]

In speaking to sentence, Burgesss counsel
    stressed that Burgess had been cooperative with the police from the outset and
    that as a result of his cooperation he had been assaulted in the jail and
    eventually placed in protective custody.  The sentencing judge made it clear to Burgess that he had committed a
    very serious crime that would call for a penitentiary term but for his guilty
    plea and cooperation.  Burgess acknowledged
    the seriousness of the offence.  Having
    regard to the plea and the cooperation, the trial judge imposed a sentence of
    350 days, having taken into account 52 days of pre-trial custody.

[38]

Burgess testified at the appellants trial on
    April 2, 2007.  Once again, he indicated
    that the appellant had called him and arranged for him to participate in the
    robbery in exchange for the forgiveness of an outstanding drug debt.

[39]

Burgess completed the custodial portion of his
    robbery sentence on September 7, 2007.  However,
    he found himself back in custody in 2008 on unrelated matters.  While in custody in either late 2008 or early
    2009, Burgess was visited by a lawyer who he understood was an associate of counsel
    for the appellant.  According to Burgess,
    he had no idea how it was that this person came to see him in jail.  As he put it, the appearance of a lawyer came
    totally out of the blue.

[40]

In his cross-examination on his affidavit,
    Burgess explained that the lawyer told him that the appellant was still in
    custody and was appealing his sentence.  He asked Burgess some questions, apparently reading either from the
    trial transcript or disclosure materials.  Burgess immediately decided to tell this lawyer that his testimony was
    false and that the appellant had nothing to do with the robbery.  Burgess indicated that he felt badly about
    implicating an innocent person.

[41]

A representative of the appellant visited Burgess
    in jail on February 5, 2009.  Burgess
    signed the affidavit that was eventually tendered on the appeal.  According to Burgess, he did not read or even
    look at the affidavit before he signed it.  Burgess made it abundantly clear during his cross-examination on the
    affidavit that he did not care whether the affidavit was accurate.  He acknowledged that several paragraphs were in
    fact inaccurate.  He repeatedly insisted,
    however, that the appellant had nothing to do with the robbery.

[42]

Although Burgess was cross-examined on his
    affidavit at some length on two occasions by Crown counsel, the
    cross-examination was never completed.  On
    both occasions, Burgess became upset, declared that the questions were repetitive
    and left the cross-examination.

[43]

Apart from Burgesss explanation in his
    cross-examination, there is no evidence offered to explain the genesis of the
    recantation.  According to Burgess, he
    had told no one that he had falsely implicated the appellant before the visit
    from the appellants lawyer during which he recanted.
[2]
On Burgesss version of events, the
    recantation was the product of an unexpected, unexplained visit from the
    appellants lawyer that spontaneously precipitated previously unfelt pangs of
    conscience.

(ii)  The applicable legal principles

[44]

Section 683(1) allows an appellate court to
    receive evidence on appeal where it considers it in the interests of
    justice.  The broad discretion vested in
    the appellate court must be exercised having regard not only to the appellants
    interests in fully pursuing his appellate remedies, but also to the broader
    long-term interests of the administration of justice.  While it cannot be gainsaid that those
    interests are not served by maintaining verdicts that are shown to be
    unreliable through fresh evidence, those interests are also not served if the
    appellate process is routinely used to re-write the evidentiary trial record,
    often years after the trial.  Admitting
    fresh evidence on appeal of necessity undermines legitimate finality
    expectations.  That negative consequence
    is justified only if the overall integrity of the process is furthered.  Admitting evidence on appeal of facts that
    were litigated at trial is very much the exception to the accepted appellate
    process:
R. v. M.(P.S.)
(1992), 77
    C.C.C. (3d) 402 at p. 411 (Ont. C.A.).

[45]

The
    factors to be considered in exercising the discretion to receive fresh evidence
    have been set out in a long line of cases, most notably the often cited
R. v. Palmer and Palmer
, [1980] 1 S.C.R.
    759 at p. 775.  This court, in
Reference Re Truscott
(2007), 225 C.C.C.
    (3d) 321, at para. 92, described the exercise of the discretion as involving
    the answer to three questions:

·

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

·

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

·

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

[46]

The first and third questions are easily
    answered on this appeal.  Burgesss evidence
    that the appellant was not involved in the robbery is admissible under the
    rules of evidence both as substantive evidence going to exculpate the appellant
    and as evidence impeaching the reliability of Burgesss trial testimony
    implicating the appellant:
R. v. Babinski
(1999), 135 C.C.C. (3d) 1
    (Ont. C.A.);
R. v. D.V.
(1995), 60
    B.C.A.C. 163 (C.A.);
R. v. Trudel
(2004), 182 C.C.C. (3d) 321 (Ont. C.A.).

[47]

The explanation for not producing Burgesss
    recantation at trial is obvious.  It did
    not exist until long after the trial.  The appellant has no due diligence problems in proffering this evidence
    on appeal.

[48]

The admissibility of Burgesss recantation comes
    down to whether it is sufficiently cogent that it could reasonably, when
    considered in the context of the rest of the evidence, be expected to have
    affected the verdict.  In
Reference Re Truscott
, at para. 100,
    this court described the cogency analysis in this way:

The cogency inquiry requires a qualitative
    assessment of the evidence proffered on appeal.
That evaluation must measure the probative
    potential of the evidence considered in the context of the entirety of the
    evidence admitted on appeal and heard at trial.
If the fresh evidence considered in this context could reasonably be
    expected to have changed the result at trial, the evidence is sufficiently
    cogent to justify its admission on appeal
[Emphasis added.]

[49]

There are features of Burgesss recantation that
    give it some potential probative value.  His recantation stands.  He has
    not, as in many of the other recantation cases, retracted his recantation and
    returned to the position he took at trial.  Burgesss recantation, like his trial evidence, also speaks directly to
    the appellants involvement in the robbery, the only live issue at trial.

[50]

The fact that evidence proffered on appeal has
    some potential probative value is not, however, enough to warrant its admission
    on appeal.  The appeal court must assess
    the potential value of that evidence.  The qualitative assessment referred to in
Truscott
demands a careful evaluation of the proffered evidence and
    the credibility of the witness.  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.

[51]

The qualitative assessment begins by identifying
    the purpose or purposes for which the evidence is admissible.  As indicated above, Burgesss recantation is
    admissible for two purposes.  First, it
    is admissible as substantive evidence that the appellant was not involved in
    the robbery.  Burgesss recantation has
    value as substantive evidence only if it is credible.

[52]

Burgesss recantation is also admissible to
    impeach his trial testimony implicating the appellant.  An out-of-court statement made by a witness
    that is inconsistent with his or her trial testimony on a material matter can
    be put to that witness to challenge his or her credibility:
R. v.
    B. (K.G.)
, [1993] 1 S.C.R. 740 at pp. 755-56.  The out-of-court statement has potential
    impeachment value if it was made by the witness and is inconsistent with the
    trial testimony on a material matter.  Burgesss recantation undoubtedly meets both criteria.

[53]

A recantation can have impeachment value even if
    it is not believed.  Indeed, a
    demonstrably false recantation can have impeachment value.  I agree with the comment of Commissioner
    Kaufmann in his report on the Commission of Proceedings Involving Guy Paul Morin
    (1998), at pp. 1174-5:

The focus should not be placed only on the
    believability of the recantation, but also upon the believability of [the
    witnesss] original testimony, given the recantation.
[Emphasis added.]

[54]

As observed by Commissioner Kaufmann, the believability
    of the recantation is not the only question when its impeachment value is in
    issue.  That is not to say, however, that
    the credibility of the recantation is irrelevant.  In determining whether the recantation has
    sufficient impeachment potential to merit its admission on appeal, the appeal
    court must determine what a trier of fact could reasonably make of the
    recantation in its assessment of the credibility of that witnesss trial
    testimony.  The credibility of the
    recantation is relevant to that assessment.  Sometimes, the falsity of the recantation may enhance its potential
    impeachment value.  In other
    circumstances, a finding that the impeachment is palpably false may neutralize
    the impeachment potential of the recantation.  The impact of the falsity of the recantation on its impeachment value
    will depend on the totality of the circumstances, including any explanation
    offered for the recantation and the extent to which the recantation is
    supported by either the trial evidence or other evidence offered on appeal.

[55]

Babinski
offers a comprehensive analysis of the admissibility on appeal of recantation
    evidence offered to impeach trial testimony.  In
Babinski
, a witness
    recanted his trial testimony incriminating the appellant.  He then resiled from the recantation.  By the time the appeal was heard, it was
    clear that the recantation was false and that the recanting witness had
    fabricated evidence in an effort to implicate the appellant in the false
    recantation.

[56]

Relying on
Palmer
,
    itself a recantation case in which the court rejected the recantation as
    patently false, Rosenberg J.A. explained that the admissibility on appeal of the
    recantation required an assessment of the credibility of that recantation, even
    where it was offered only to impeach the contrary evidence given at trial.  He said, at paras. 51-52:

...
The decision of the Supreme Court of Canada
    in
Palmer
instructs the appellate
    court to assess the credibility of that evidence.
...
The appellate
    court cannot avoid the task of dealing with credibility, i.e. the truthfulness,
    of fresh evidence, especially recantations, simply on the basis that the
    evidence is tendered for the limited purpose of impeaching the credibility of
    the witness' trial evidence.

If the appellate court, which has the obligation
    to consider the sufficiency of the fresh evidence, is satisfied that the fresh
    evidence is not credible and does not affect the credibility of the testimony
    given by the witness or another witness at the trial, the evidence cannot meet
    the third
Palmer
requirement, and it
    is inadmissible.
To hold otherwise, would be to shirk the responsibility
    given to the appellate court by s. 683 of the Criminal Code, as interpreted in
Palmer
, to receive the evidence of
    witnesses on appeal.
To admit a recantation without regard to its
    credibility simply because it was made, would run afoul of the admonition in
Palmer
at p. 205 that it would not
    serve the interests of justice to permit any witness by simply repudiating or
    changing his trial evidence to reopen trials at will to the general detriment
    of the administration of justice. [Emphasis added.]

[57]

In addressing the recantation of the witness in
    the case at hand, Rosenberg J.A. stated, at para. 53:

If the only fresh evidence in this case was the bare
    recantation by L. [the witness] of the perfect crime statement, I would have
    considerable doubt that the evidence could pass the credibility threshold since
    the reasons provided for the allegedly untrue trial testimony and for the
    recantation can be shown to be patently false. ...
In those circumstances, the bare
    recantation is so lacking in credibility that even as impeaching evidence it
    lacks sufficient forensic value to overturn a conviction otherwise free of
    error.
[Emphasis added.]

[58]

Rosenberg J.A. went on to explain that the impeachment
    value of the witnesss recantation did not, however, depend solely upon its
    credibility.  Placed in the context of
    the other evidence, specifically the witnesss fabrication of evidence to
    implicate the appellant in the false recantation, the recantation had impeachment
    value.  He concluded, at para. 70:

... The fresh evidence in this case is not a simple
    repudiation.
Credible independent
    fresh evidence demonstrated that L. cannot be relied on at least in respect of
    evidence implicating this appellant.
The nature of that evidence shows him to be unreliable in all respects
    and not simply with respect to his post-trial statements.  [Emphasis added.]

[59]

The analysis in
Babinski
was applied in
R. v.
    McCullough
(2000), 142 C.C.C. (3d) 149 (Ont. C.A.).  In that case, the fresh evidence consisted of
    recantations by two Crown witnesses and some new forensic evidence.  The court ultimately admitted the recantation
    of one of the witnesses (D.) and the forensic evidence.  The recantation of the other witness (W.) was
    not admitted.  The court addressed the
    admissibility of her evidence at paras. 32-33, observing firstly, that her
    recantation and her reasons for recanting are not credible and, secondly,
    that:

That evidence [W.s recantation] is not credible
    and does not affect the credibility of her trial testimony or the testimony of
    any other witnesses at trial.
... In this case, having had the benefit of
    seeing W. testify and the opportunity to examine her evidence against other
    objective facts, I have been able to reach the conclusion that her proposed
    fresh evidence is incredible, without the need to pass on the veracity of her
    trial testimony.  [Emphasis added.]

[60]

The court in
McCullough
was satisfied that W.s recantation was not only false, but also when
    considered in the context of the other evidence and the explanation for the
    recantation, had little or no impeachment value.  Consequently, the court refused to admit it.

[61]

Babinski
also stresses the need for a particularly rigorous qualitative assessment where
    the evidence proffered on appeal is a post-trial recantation of a witnesss
    trial testimony.  The finality of
    criminal verdicts would be all too ephemeral if those verdicts fell whenever an
    important trial witness chose to recant his or her testimony.  As stated in
Babinski
at para. 62:

Simple recantations are properly subject to strict
    scrutiny because they can be easily fabricated.

[62]

The caution sounded in
Babinski
echoes those made in
R.
    v. Palmer
at 205 and
R. v. Pizzardi
(1994), 17 O.R. (3d) 623 at p. 630 (C.A.), appeal to S.C.C. dismissed [1994] 3
    S.C.R. 1018.

(iii)  Application of the principles to this case

[63]

When I subject Burgesss recantation to the
    strict scrutiny called for in
Babinski
,
    I find it to be incredible.  I further
    conclude that its impeachment value is not such that it could reasonably be
    expected to have affected the verdict at trial.  I reach these conclusions for several reasons.

[64]

Perhaps the most striking feature of the recantation
    is the manner in which it came about.  The recantation appeared fully grown out of nowhere, some three and a
    half years after the relevant events and almost two years after Burgess had
    testified at trial.  According to
    Burgess, a lawyer representing the appellant, who had no reason to know that
    Burgess had lied, appeared out of the blue to question Burgess about his
    trial testimony.  Upon learning that the
    appellant was still in jail, Burgess told the lawyer that he had lied at the
    trial.

[65]

Burgesss description of the circumstances of
    his recantation defies belief.  Why would
    counsel for the appellant suddenly appear unannounced at Burgesss cell and
    begin to question him about his testimony?  Something obviously caused the lawyer to have reason to believe that
    Burgess may not stand by his trial testimony.  Burgess did not see fit to share any knowledge that he had about the
    events leading up to the lawyers visit.  There was no other evidence provided on behalf of the appellant that
    offered any explanation for the circumstances surrounding the recantation.

[66]

Absent any evidence explaining the origins of
    the recantation, there are at least two explanations that flow from the
    circumstances.  Either the witness, who
    was in custody and is clearly part of the criminal subculture, and who no
    longer had any reason to cooperate with the Crown, saw the opportunity to help
    out the appellant, another member of the criminal subculture, or the witness
    was under physical compulsion to recant his trial testimony.  According to the submissions made by
    Burgesss lawyer at the time of Burgesss sentencing, Burgess had been
    assaulted while in jail because of his cooperation with the Crown in this case.  Burgess also acknowledged in
    cross-examination that he had concerns about his safety in jail if he
    implicated others in criminal activity.  He related that concern to his refusal to identify the person whom he
    now claimed had actually asked him to perform the robbery.

[67]

The affidavit itself is entirely incredible for
    many reasons.  Burgess acknowledges that
    he did not read it before signing it.  He
    admitted that it contained several inaccuracies.  Some of the assertions in the affidavit are
    manifestly false.  For example, in para.
    11 of the affidavit, Burgess states:

[T]he police kept asking me over and over who
    planned the robbery.

[68]

As is evident from the recorded interview, the
    police did not press Burgess to identify the individuals in the robbery.  He initially refused to do so and later when asked
    about the names of others for a second time, Burgess immediately identified the
    appellant as the person who planned the robbery.  Similarly, in para. 11, Burgess alleged that
    he had never told the police he owed the appellant money.  However, as is evident from the recorded
    interview, that is exactly what he told the police.

[69]

Burgess also acknowledged in his
    cross-examination that several other parts of his affidavit were false.  Two further examples will suffice.  In para. 10 of his affidavit, Burgess stated
    that he did not know why the others in the car had told him to name the
    appellant as the person involved in the robbery.  In cross-examination, he testified that the
    others in the car had a drug beef with the appellant.  In para. 7 of his affidavit, Burgess swore
    that he did not know the other people in the car.  In cross-examination, he testified that he knew
    one of the persons in the car, but refused to identify him.

[70]

Burgesss attitude towards the truth of the
    contents of the affidavit, and why, in my view, the affidavit is virtually
    worthless, is made apparent in the following exchange during his
    cross-examination:

Q.  So,
    obviously you didnt care a great deal what was in here [the affidavit].

A.  No.  Cause I dont care if he gets off or
    whatever.  I dont care, it doesnt
    bother me.  I just said whatever.  They just asked me some questions and I said
    yeah, it wasnt true like.

Q.  But my
    question is, as far as the affidavit goes

A.  Do I care
    whats in it?  No.

[71]

Not only
    is the affidavit rife with demonstrated falsehoods, other aspects of Burgesss
    cross-examination also undermine the credibility of the recantation.  Burgess declined to answer various questions
    that were clearly relevant, including the identity of the person whom he now
    claimed had put him up to the robbery.  Burgess also unilaterally, and in vulgar terms that evince an utter
    disregard for the process, terminated his cross-examination on two
    occasions.  The cross-examination was
    never completed.  Burgesss conduct
    during the cross-examination hardly inspires confidence in the truth of
    anything he said in the affidavit or in his cross-examination.

[72]

Any potential impeachment value in the
    recantation is further diluted when that recantation is placed in the context
    of Burgesss statement and testimony.  Burgesss statement to the police, his preliminary inquiry testimony,
    the facts accepted by him as accurate on his guilty plea, and his trial
    testimony are all fundamentally consistent in their description of the
    appellants involvement in the robbery.
[3]
The consistency in the details provided by
    Burgess on four separate occasions tends to belie the claim made by Burgess in
    cross-examination that he was simply making things up as he went along.

[73]

Burgesss statement to the police, his testimony
    at the preliminary inquiry, and his trial testimony are also consistent with
    the statement given to the police by Doucette the morning after the
    robbery.  Both implicated the appellant
    as the person who recruited them to commit the robbery and provided details of
    the events leading up to the robbery.  There is no suggestion that Doucette and Burgess had any opportunity to
    collude about those details before each provided his statement to the
    police.

[74]

The strong similarities between Burgesss
    statement and Doucettes statement cannot be explained by the assumption that
    Burgesss recantation is true and that Doucette, like Burgess, decided to
    implicate the appellant because of what others had said in the automobile.  According to Burgesss recantation, when he
    was told to implicate the appellant, there were no details provided.  He was simply told to indicate that the
    appellant was the other person involved in the robbery.  Burgesss explanation of how the recantation
    came about cannot explain the many similarities between Doucettes description
    of the appellants role in the robbery as provided in his statement to the
    police and Burgesss description of the appellants involvement in the robbery
    as provided in his statement and repeated in his subsequent testimony at the
    preliminary inquiry and the appellants trial.

[75]

My examination of Burgesss recantation brings
    to mind the admonition of McIntyre J. in
Palmer
,
    at p. 205:

The overriding consideration must be in the words of
    the enactment the interests of justice and it would not serve the interests
    of justice to permit any witness by simply repudiating or changing his trial
    evidence to reopen trials at will to the general detriment of the
    administration of justice.

[76]

I find the recantation incredible and unworthy
    of belief.  I am also satisfied that it
    could not reasonably be expected to affect the assessment of the reliability of
    Burgesss trial testimony implicating the appellant in the robbery.

IV

CONCLUSION

[77]

I would dismiss the appeal.

Doherty J. A.

I agree. K. Feldman J.A.

I agree. Gloria Epstein J.A.

RELEASED:
JUN 10 2011 (D.D.)





[1]
Doucettes statement was only partially recorded as the equipment
    malfunctioned.  The Crown relied only on
    the recorded portion of the statement.



[2]
At another point in his cross-examination, Burgess contradicted his earlier
    statement and stated that he had told some friends about falsely implicating
    the appellant.  He declined to identify
    those friends in his cross-examination.



[3]
In his statement, Burgess initially indicated that the person who called him
    and asked him to participate in the robbery was not in the automobile that
    drove him to the scene of the robbery.  However, later in his statement, after Burgess identified the appellant
    as the person who called him, the police did not ask Burgess whether the
    appellant was present in the automobile when Burgess was picked up and driven
    to the scene of the robbery.


