



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McNeil, 2016 ONCA 844

DATE: 20161110

DOCKET: C60090

Feldman, Gillese and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sheri-Lee Ann McNeil

Appellant

Erika Chozik, duty counsel

Scott Latimer, for the respondent

Heard: November 1 and 2, 2016

On appeal from the conviction entered on February 9, 2015,
    and the sentence imposed on February 9, 2015, by Justice J.T. Lynch of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of aggravated
    assault, uttering a death threat, possession of a weapon and breach of
    probation. She was sentenced to 14 months imprisonment plus a 2 year period of
    probation less 1:1 credit for pre-sentence custody. Although her sentence
    appeal has been heard, her conviction appeal has not. She now brings her
    conviction appeal and seeks to re-open her sentence appeal. She has tendered
    fresh evidence with respect to both.

[2]

The events giving rise to the convictions
    occurred on New Years Eve 2013 at the home of Darlene Kelly. The appellant had
    been staying with Ms. Kelly who was acting as her surety. The complainant Barry
    McKay was also at Ms. Kellys apartment. A dispute arose between Ms. Kelly and
    the appellant. Mr. McKay threatened to call the police. Ms. Kelly, concerned
    about her role as surety, attempted unsuccessfully to take Mr. McKays phone
    from him. The appellant intervened and took the phone herself. When Mr. McKay
    tried to get it back, the appellant stabbed him in the chest with a pair of
    scissors. Both women left the apartment. A neighbour testified that someone
    wearing the same clothes as the appellant was speaking on a cell phone outside
    the Kelly apartment. The neighbour heard the person acknowledge having just
    stabbed someone.

[3]

Only the appellant and Ms. Kelly were in the
    apartment with Mr. McKay when he was stabbed. Each claimed the other had
    stabbed him. Mr. McKay was not consistent on who stabbed him, and was in a
    state of intoxication that evening. Both women were initially arrested but only
    the appellant was charged.

[4]

The trial judge accepted the evidence of Ms.
    Kelly that the appellant was the stabber. It is significant for purposes of the
    fresh evidence motion that Ms. Kelly testified that: (1) she had not been using
    drugs that night; and (2) that the appellant had been drinking and she rated
    her as 7 out of 10 on an intoxication scale.

Fresh Evidence

[5]

The appellant seeks to rely on fresh evidence. It
    takes the form of her affidavit attaching two exhibits. The exhibits are two
    separate pages both entitled Prisoner Detain Sheet. The first sheet
    references the appellant and under the heading Alcohol and Drug Related
    Information there is a check mark in a box next to Sober. The second page
    refers to Darlene Kelly. Under the heading Property and Release Information is
    written drug paraphernalia. The appellants affidavit indicates that she
    received these documents as part of Crown disclosure before trial. However, she
    states that she only discovered them after trial.

[6]

The well-known test for the admission of fresh
    evidence in
Palmer v. The Queen
, [1980] 1 S.C.R. 759 is
: (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; (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.

[7]

The Crown objects to the admission of the fresh
    evidence solely on the basis that it could not reasonably be expected to have
    affected the result. The appellant on the other hand submits that the fresh
    evidence could reasonably be expected to have affected the trial judges
    credibility assessment of her and of Ms. Kelly. She submits that the Prisoner
    Detain Sheets contradict Ms. Kellys evidence: (1) that the appellants
    intoxication level was 7 out 10; and (2) that Ms. Kelly had not used drugs on
    the night in question.

[8]

We do not accept the appellants submission. The
    trial judge made no reference to the appellants state of intoxication except
    in the narration of Ms. Kellys evidence. The trial judge did not base her
    credibility findings of the appellant on Ms. Kellys evidence that the
    appellant had been drinking. She accepted Ms. Kellys evidence. She said her
    evidence was credible and reliable and not impacted in any significant way
    during cross-examination. With respect to the appellant, the trial judge made
    no finding about her sobriety and it formed no part of her credibility
    analysis.

[9]

The appellant further submits that the trial
    judges rejection of the appellants evidence disclosed an underlying, but
    unstated, assumption that the appellant had been drinking. She submits that the
    trial judges references to the illogic of the appellants testimony can only
    be explained by the fact that the appellant had been drinking. Again, we
    disagree. Nothing in the trial judges reasons indicates that her findings
    about the illogical testimony of the appellant were connected to a state of
    intoxication.

[10]

The fresh evidence could not reasonably be
    expected to have affected the result and is therefore not admitted.

Other Grounds of Appeal on
    Conviction

[11]

Although the appellant relies primarily on the
    fresh evidence, she also submits that the trial judge made findings of fact
    based on unsupported inferences and gave uneven scrutiny to the evidence of the
    appellant as compared to that of Ms. Kelly. Again, we disagree. The trial
    judges finding that the appellant stabbed Mr. McKay was based on the
    acceptance of the evidence of Ms. Kelly  evidence she found was confirmed by
    extrinsic evidence including the blood found on the appellants clothes; and
    the testimony of the neighbour who heard the cell phone call. The trial judge
    explained why she accepted Ms. Kellys evidence and rejected the appellants
    evidence. The trial judge further acknowledged that it was a decision based on
    credibility findings but was not a credibility contest. We see no palpable
    and overriding error in her findings of fact.

The Sentence Appeal

[12]

Although  on consent of the Crown  the fresh
    evidence is admitted on the sentence appeal, we see no error in principle in
    the sentencing judges determination as to the length of the sentence. We
    recognize that the sentencing judge referred to the appellants intoxication as
    a factor in fashioning the sentence. However, it was the appellants counsel
    who made submissions on sentence inviting her to do so. As acknowledged by the
    Crown, the appellant should have received enhanced credit for the pre-sentence
    custody at the rate of 1.5:1. In these circumstances, the sentence appeal is
    re-opened and the credit for pre-sentence custody is increased from 279 days to
    418 days.

Disposition

[13]

The conviction appeal is dismissed. The sentence
    appeal is allowed and the sentence is varied by increasing the pre-sentence
    custody credit to 418 days.

K.
    Feldman J.A.

E.E.
    Gillese J.A.

M.L.
    Benotto J.A.


