



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kelly, 2014 ONCA 380

DATE: 20140513

DOCKET: C54557

Laskin, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gerald Raymond Kelly

Appellant

Breana Vandebeek, for the appellant

Jocelyn Speyer, for the respondent

Heard: May 5, 2014

On appeal from the conviction entered on August 31, 2011
    by Justice Patrick A. Sheppard of the Ontario Court of Justice.

By the Court:

[1]

The appellant was convicted of a home invasion robbery.  The sole issue
    at trial was identity.  The Crowns case rested entirely on a K.G.B. statement
    given by the appellants accomplice, who then recanted his statement at trial. 
    The trial judge found that the statement was reliable and admitted it for the
    truth of its contents.  The appellant did not testify.

[2]

The appellant advances three grounds of appeal:

(1)

The trial judge erred in drawing
    an adverse inference from the late disclosure of the recantation;

(2)

The trial judge erred by relying
    on the K.G.B. witnesss guilty plea for the truth of its contents; and

(3)

The trial judge erred in admitting
    the K.G.B. statement for the truth of its contents;

[3]

The appellant also brings a motion to introduce fresh evidence
    concerning a discussion in the trial judges chambers before the trial started.

[4]

We did not call on the Crown on either the third ground of appeal or on
    the fresh evidence motion.

[5]

In our view, the trial judge did not err in relying on the K.G.B.
    statement for the truth of its contents.  The circumstances of the taking of
    the statement established its threshold reliability.  Although not under oath,
    the statement was videotaped in its entirety.  The witness was cautioned and
    the statement was voluntary.  Most important, the witness testified at trial
    and thus defence counsel had a full opportunity to cross-examine him, though counsel
    chose not to do so.

[6]

We dismiss the appellants motion to introduce fresh evidence.  The discussion
    in the trial judges chambers did not prejudice the defence and was irrelevant
    to the fairness of the appellants trial.

[7]

We turn now to the two grounds of appeal on which we asked the Crown to
    respond.

(1)

Adverse Inference

[8]

The witness sought to recant his K.G.B. statement.  He did so in a brief
    letter, which was written in March 2011 and delivered by defence counsel to the
    Crown on the first day of trial in July 2011.  The witness then testified
    consistently with his recantation.

[9]

In convicting the appellant, the trial judge drew an adverse inference
    from the late disclosure of the recantation.  The trial judge said:

Once Mr. Scully receives the letter and we do not know the
    precise date that that happened except that it is sometime after it was given
    in the second week of March, 2011, the letter is retained by counsel and
    produced for the Crown on the trial date of July 12
th
, 2011 and not
    before.



Whether or not an alibi case is truly analogous is not
    something the Court need decide today but, I do draw an adverse inference from the
    fact that the recanting of Mr. McIntosh as to the second person present with
    him at the time of the home invasion was never conveyed to Crown counsel who
    could then cause a proper investigation of it to be made and, any investigation
    that was ultimately made by the Kingston Police had to be made by virtue of the
    fact this trial continued in August from its initial trial date of July the 12
th
.

[10]

The
    appellant submits that it was an error of law for the trial judge to draw this
    adverse inference because it undermined the presumption of innocence and the
    appellants right to remain silent.  We agree with this submission.

[11]

Ordinarily
    accuseds have no obligation to disclose their defence.  This principle has
    exceptions that would justify the drawing of an adverse inference for late
    disclosure.  The requirement for the timely disclosure of an alibi defence is
    one such exception.  However, no exception applies to this case, and thus the
    trial judge erred in law in drawing an adverse inference.

[12]

The
    Crowns answer to the appellants submission is that the adverse inference for
    late disclosure of the recantation was drawn not against the appellant but
    against the witness.  Thus, according to the Crown, the adverse inference did
    not undermine the appellants right to remain silent, but simply undermined the
    witnesss credibility.

[13]

We
    disagree.  It is evident from the passage of his reasons we have quoted above
    that the trial judge drew an adverse inference against the appellant.  He was
    wrong to do so.  Moreover, he then used the late disclosure of the recantation
    to support his finding of guilt.  The trial judge said:

The passage of this time plus the failure to disclose the
    recanted identity plus the Court[s] own observations of the demeanour of Mr.
    McIntosh on the tape have all satisfied me to the level of beyond a reasonable
    doubt that Mr. Kelly was the second person in possession of the two knives at
    the home invasion on December the 6
th
, 2009, that was described in
    detail by Mr. McIntosh in his video statement of April the 8
th
,
    2010.

In reaching this conclusion, the trial judges reliance
    on the late disclosure was wrong.

[14]

As
    the trial judges error cannot be disentangled from his other reasons for
    convicting the appellant, the error deprived the appellant of a fair trial.  On
    this ground alone, the conviction cannot stand.

(2)

The witnesss guilty
    plea

[15]

The
    appellant also submits that the trial judge erred by using the witnesss guilty
    plea and the guilty plea proceedings for the truth of their contents.  We do
    not accept this submission.  The trial judge did not use the guilty plea
    proceedings for a hearsay purpose, which would have been improper.  He used
    these proceedings solely to assess the reliability of the witnesss
    recantation.  This was a proper use of the guilty plea proceedings.  We
    therefore do not give effect to this ground of appeal.

[16]

However,
    because the trial judge erred in drawing an adverse inference from the late
    disclosure of the recantation, the appeal is allowed, the conviction is set
    aside and a new trial is ordered.

Released: May 13, 2014 (J.L.)

John Laskin J.A.

S.E. Pepall J.A.

G. Pardu J.A.


