



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McGown, 2016 ONCA 575

DATE: 20160719

DOCKET: C56018

Laskin, Cronk and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason McGown

Appellant

Brian Eberdt and Eva Taché-Green, for the appellant

Craig Harper, for the respondent

Heard: March 10, 2016

On appeal from the convictions entered by Justice B.
    MacDougall of the Superior Court of Justice, sitting without a jury, on
    February 17, 2012.

Cronk J.A.:

I.        Introduction

[1]

Late in the evening on December 29, or early in the morning on December
    30, 2009, two armed and masked men broke into a home in the village of Bethany,
    Ontario. The first man was carrying a sawed-off shotgun, while the second man
    was brandishing a handgun.  Both men were wearing balaclavas.  The two
    occupants of the house were bound to kitchen chairs with duct tape while the intruders
    searched the house and stole drugs and cash.

[2]

The victims did not initially report the incident to police because of
    the presence of drugs in their home.  However, when their house was broken into
    again about three months later, this time by four men, they contacted the
    police and reported both home invasions.  Three individuals were ultimately
    charged with a series of offences relating to the first home invasion and
    robbery  the appellant Jason McGown, Gregory Keenan and Stephen Kelman.

[3]

Following a trial by judge alone, the appellant was convicted of four
    offences relating to the robbery and home invasion: i) robbery with a
    prohibited firearm; ii) break and enter and committing robbery with a firearm; iii)
    disguise with intent; and iv) possession of a prohibited weapon without a
    licence.  His convictions rested on Keenans trial testimony implicating the
    appellant in the robbery and home invasion.

[4]

The appellant appeals from his convictions.  The central issue on appeal
    is whether the trial judge erred in his assessment of the credibility and
    reliability of Keenans evidence.  For the reasons that follow, I would dismiss
    the appeal.

II.       Background in Brief

(1)

Co-Accused

[5]

Keenan and Kelman lived together in Kelmans house in Lindsay, Ontario
    at the time of the robbery.  Both men were drug users and dealers in their
    community.

[6]

In February 2010, before being charged for any offences relating to the
    home invasion and robbery, Keenan was arrested and charged with several unrelated
    drug offences.  While in custody, the police told him that they were having
    trouble locating a handgun used during the home invasion.  They said that Kelman
    was in custody and that, if either of them provided information about the guns
    whereabouts, bail would not be opposed.  In the cells, Keenan told Kelman the
    location of the gun, and Kelman then led the police to the gun.  Keenan was
    released on bail with the Crowns consent.

[7]

Two months later, in April 2010, Keenan went to the police station to
    retrieve some of the property seized during his arrest on the drug charges.  At
    that time, the police informed him that he was going to face further charges,
    including armed robbery, in relation to the December 2009 robbery and home
    invasion.  Keenan provided a statement to the police, saying that he had only been
    the driver of the getaway car and that the appellant and Kelman broke into the
    victims residence and carried out the robbery.  Keenan claimed that he did not
    enter the house or otherwise participate in the robbery and home invasion.

[8]

As a result of Keenans statement, he, together with Kelman and the
    appellant, were charged with robbery and related offences regarding the
    break-in.  Kelman pleaded guilty and was sentenced shortly thereafter.

[9]

On April 12, 2011, one week before the appellants preliminary inquiry
    was to commence, Keenan pleaded guilty as a party to a single count of
    robbery.  His plea was based on his claim in his police statement that he was a
    party to the robbery, not a principal  that is, that he was involved only as
    the driver of the getaway car and did not enter the victims residence.

(2)

Appellants Preliminary Inquiry

[10]

Keenan testified for the Crown at the appellants preliminary inquiry on
    April 19, 2011.  In doing so, he invoked the protections against
    self-crimination set out in s. 5(2) of the
Canada Evidence Act
, R.S.C.
    1985, c. C-5 (the 
CEA
) and s. 13 of the
Charter of Rights and
    Freedoms
[1]
.


[11]

At the preliminary inquiry, Keenan acknowledged a much greater degree of
    participation in the home invasion and robbery than he had previously
    disclosed.  In contrast to his police statement, he testified that he, rather
    than Kelman, had entered the victims residence and carried out the home
    invasion and robbery with the appellant.  Kelman, he said, had remained in the
    getaway car.

(3)

Appellants Trial

(i)

Case for the Crown

[12]

At the appellants trial, it was common ground that Keenan and Kelman were
    involved in the robbery. The sole issue was the identity of the third robber.

[13]

The victims and Keenan testified for the Crown.  Neither of the victims
    saw the robbers faces and, hence, could not provide a physical description of
    the two men, other than the fact that one was taller than the other.

[14]

By the time of the appellants trial, Keenan had not yet been sentenced
    on his robbery conviction and his February 2010 drug charges remained
    outstanding.  His sentencing hearing had been adjourned numerous times.  At
    trial, he testified that he did not know why his sentencing had been delayed
    and that he was unaware of any agreement between his lawyer and the Crown on
    his expected sentence.  As I will elaborate, the Crown indicated that its
    position on Keenans future sentencing was fixed prior to the appellants
    preliminary inquiry, but that it understood that the defence would argue for a
    lesser sentence.

[15]

At trial, Keenan again invoked the protections against self-crimination
    under s. 5(2) of the
CEA
and s. 13 of the
Charter
.  The Crown
    confirmed on the record that it would not attempt to use Keenans evidence
    against him and that it had accepted his earlier guilty plea on the robbery
    charge based on his assertion in his police statement that he was only the
    getaway driver.

[16]

Keenans trial testimony was consistent with his evidence at the
    appellants preliminary inquiry.  He said that Kelman and the appellant had
    devised the plan to conduct the home invasion in order to steal drugs and
    money.  However, things did not go according to plan.  According to Keenan, when
    the three men arrived in Bethany, Kelman decided he could not go through with
    the break and enter.  Keenan, therefore, switched places with Kelman and entered
    the residence with the appellant, carrying his own loaded handgun and wearing a
    balaclava.  Kelman stayed in the car.  Keenan further described how he and the appellant
    carried out the break-in and what each did during the ensuing robbery.

(ii)

Case for the Defence

[17]

The appellant did not testify.  Kelman was the sole defence witness.

[18]

Kelman testified that he and the appellant were friends.  He claimed,
    for the first time, that the appellant had no involvement in the home invasion
    and robbery.  He said that Keenan was his drug supplier; that the robbery was
    Keenans idea; and that Keenan had proposed that Kelman drive Keenan and a
    friend to the targeted residence, wait there and then drive them back to
    Lindsay, in exchange for a credit on an outstanding drug debt.  According to Kelman,
    on the day of the robbery, Keenan drove with him to a parking area on Highway
    35 where they picked up Keenans friend from the City.  Kelman then drove the
    trio to Bethany and waited in the car while Keenan and his friend broke into
    the victims house and carried out the robbery.

[19]

Kelman provided only a brief physical description of Keenans alleged
    friend.  Kelman claimed that he did not know the friend or anything about him,
    as there was no conversation among the three men in the car enroute to Bethany. 
    He said that, after the robbery, he drove Keenan and his friend back to Highway
    35, dropped the friend off, then returned with Keenan to Kelmans home in
    Lindsay, where they divided the drugs stolen in the robbery.

[20]

Kelman also admitted that he owned the sawed-off shotgun used in the
    robbery and that the shotgun was in Keenans car at the time of the home
    invasion.  He testified that, two weeks prior to the robbery, he had given the
    gun to Keenan to hide with Keenans stash, because he did not want the
    shotgun in his house where his young son lived.

III.       Trial Judges Decision

[21]

The trial judge rejected Kelmans evidence, holding that he was not
    credible and that his testimony did not give rise to a reasonable doubt
    regarding the appellants participation in the home invasion and robbery.  The
    trial judge found that numerous aspects of Kelmans testimony did not make a
    lot of sense, including: i) his claim that he had participated in a robbery
    with a complete stranger; ii) his provision of only very scant details about
    Keenans alleged friend; iii) his explanation about the prior whereabouts of
    his shotgun; and iv) most significantly, his failure to disclose, at any point prior
    to his trial testimony, that the appellant, his friend, had not been involved
    in the home invasion and robbery, despite knowing that the appellant was facing
    charges in relation to the incident.

[22]

The trial judge was also alert to the weaknesses in Keenans evidence. 
    Given Keenans long history as a major drug dealer in the Lindsay area, his criminal
    behaviour as a drug user, his prior illegal possession of a loaded handgun that
    he loaned to others for criminal conduct, and his past untruthfulness to the
    police, the trial judge regarded Keenan as an unsavoury witness.  He therefore cautioned
    himself to evaluate Keenans credibility and reliability in accordance with the
    principles set out by the Supreme Court of Canada in
Vetrovec v. The Queen
,
    [1982] 1 S.C.R. 811 and
R. v. Khela
, 2009 SCC 4, [2009] 1 S.C.R. 104. 
    Those principles require that the testimony of witnesses who, because of their
    amoral character, criminal lifestyle, past dishonesty or interest in the
    outcome of the trial, cannot be trusted to tell the truth, be approached with
    skepticism and particular scrutiny:
Khela
, at paras. 3-5.

[23]

The trial judge indicated that he took these principles into account in
    considering whether Keenan was telling the truth that the appellant was his
    accomplice in the robbery and home invasion.  He noted, in this regard, Keenans
    outstanding drug charges; the fact that he had not yet been sentenced for his
    role in the home invasion and robbery; his invocation of the protections
    against self-crimination under the
CEA
and the
Charter
; the
    change in his trial testimony from his statement to the police  namely, that
    he was one of the intruders and was carrying a loaded handgun during the robbery;
    and his criminal record.

[24]

The trial judge went on to conclude that several areas of Keenans
    testimony were not credible.  He held, in effect, that Keenan had downplayed
    his involvement in the home invasion and robbery and that he had actually played
    a central role in its planning and execution.  Further, as Keenan had pleaded
    guilty only to being a party to the robbery, his assertion at trial that he
    intended to take full responsibility for his criminal conduct should be taken
    with a grain of salt.

[25]

However, the trial judge also identified several factors that bolstered
    Keenans credibility.  He found that: i) there was no evidence that the police
    had held out any promises to Keenan if he admitted his own involvement or
    identified his accomplices in the home invasion and robbery; ii) there was also
    no evidence of any motive by Keenan to fabricate the appellants involvement to
    protect some other person; iii) indeed, as compared to the victims evidence, Keenan
    had minimized the appellants conduct during the robbery; iv) Kelmans
    testimony confirmed some aspects of Keenans evidence; v) no inconsistencies had
    emerged between Keenans trial evidence and his prior testimony at the
    appellants preliminary inquiry; and vi) Keenan was genuinely intent on
    achieving rehabilitation and overcoming his substance abuse issues and
    criminal lifestyle.

[26]

Weighing all these factors, the trial judge accepted the core of
    Keenans testimony.  He held:

Taking into account all the legitimate concerns regarding his
    past and that he is an accomplice, as well as the way in which his charges have
    proceeded, I accept his testimony that the [appellant] was the other accomplice
    in the home invasion and robbery.

[27]

Accordingly, the trial judge convicted the appellant of the four offences
    charged.

IV.      Proposed Fresh Evidence

[28]

The appellant seeks leave to file, as fresh evidence on appeal: i) the
    transcripts of Keenans remand appearances after entering his guilty plea to
    the robbery charge; ii) the pre-sentence report filed at Keenans sentencing
    hearing; and iii) the transcripts of Keenans pleas on the drug charges and the
    sentencing hearing on the robbery and drug charges.

[29]

The appellant argues that this evidence establishes that Keenan gave
    manipulative accounts of his involvement in the robbery, depending on the
    nature of the proceeding, in order to attract the greatest personal gain and
    with no regard for the truth.  He submits that, contrary to the trial judges
    findings, the proposed fresh evidence demonstrates that Keenan was not willing
    to take, and did not take, full responsibility for his conduct and that he was
    essentially disingenuous in his professed commitment to rehabilitation.

[30]

I have reviewed the proposed fresh evidence sought to be filed by the
    appellant.  It reveals that, on July 9, 2012, about five months after the
    appellants trial, Keenan entered guilty pleas to two counts of possession for
    the purpose of trafficking (marijuana and cocaine) before Rosenberg J. of the Ontario
    Court of Justice.  A global sentencing hearing then proceeded, on both the
    robbery and drug convictions.

[31]

At the sentencing hearing, the Crown filed synopses of the victims video
    statements and an agreed statement of facts (ASF) that encompassed all
    charges.  The ASF described Keenan as the driver of the getaway car during the
    robbery and stated that he had brought his handgun with him for the appellant. 
     It contained no mention of his evidence at the appellants preliminary inquiry
    and trial that he had been one of the two masked and armed intruders.

[32]

Further, Keenans counsel at the sentencing hearing stressed, as
    mitigating factors on sentencing, Keenans co-operation with the authorities in
    respect of the robbery, the importance of his testimony to the Crowns case against
    the appellant, and his genuine regret and remorse.  Defence counsel urged the
    imposition of a suspended sentence for the robbery conviction and a conditional
    sentence for the drug convictions.

[33]

Crown counsel (not counsel at the appellants trial) relied on the ASF
    to note that Keenan did not enter the victims residence.  However, she
    submitted that Keenan still played a very key role in the robbery.  She also
    acknowledged that his statement to the police and his testimony at the
    appellants preliminary inquiry and trial were mitigating factors.  She sought
    sentences of 22 months in jail for the robbery and a total of 20 months
    imprisonment for the drug offences, consecutive.

[34]

The sentencing judge sentenced Keenan to 18 months imprisonment for his
    involvement in the robbery and 10 months in jail for his drug offences, consecutive,
    for a total of 28 months.  In so doing, she relied on the description of
    Keenans limited role in the robbery, as set out in the ASF.  She also identified,
    in mitigation of sentence, Keenans co-operation with the authorities and the
    evidence before her of his remorse, the turnaround in his life and his
    professed commitment to making a positive impact in his community.

V.       Issues

[35]

There are three main issues on appeal:

(1)

Did
    the trial judge err in his assessment of Keenans credibility and reliability:

i)    by failing to exercise the necessary caution in
    accepting Keenans evidence, in light of Keenans status as a co-accused
    awaiting sentencing and his outstanding criminal charges;

ii) given the proposed fresh evidence, by finding that
    Keenan was willing to take responsibility for his actions and tell the truth?

(2)

Did
    the trial judge err by holding that Kelmans testimony confirmed parts of
    Keenans evidence?

(3)

Did
    the trial judge err by applying a more stringent level of scrutiny to Kelmans
    evidence than that brought to bear on Keenans testimony?

VI.      Analysis

(1)      Assessment of Keenans Credibility and Reliability

[36]

The appellant argues that Keenans evidence implicating the appellant in
    the robbery and home invasion should have been given no weight because the risk
    of fabrication by Keenan was too great.  Because Keenan was an accomplice who
    had not been sentenced for his role in the robbery and also had outstanding drug
    charges at the time of the appellants trial, the appellant argues that the
    trial judge was obliged to approach his testimony with special care.  The trial
    judge failed to do so, the appellant says, because he failed to consider what
    Keenans expectations were in implicating the appellant.  Specifically, the
    trial judge did not adequately address Keenans unsavoury character and failed
    to appreciate that Keenan had a strong motive to fabricate, given his alleged
    pattern of co-operating with the authorities to gain favour for himself.

[37]

The appellant further submits that this error is manifest when the trial
    judges findings are considered in light of the proposed fresh evidence.  As
    set out in his factum, the appellant maintains that this evidence establishes
    that the information provided by Keenan to the authorities was, at every
    instance, tailored to ensure that it afforded him the greatest personal gain,
    with no regard for the truth and that, contrary to the trial judges findings,
    Keenan did not intend to take responsibility for his actions.

[38]

I turn first to the trial judges approach to Keenans evidence.

(i)

Trial Judges Approach to Keenans Evidence

[39]

It is well-established that a court must exercise caution in accepting
    the evidence of an accomplice or co-accused who is awaiting trial or
    sentencing.  Caution is mandated because witnesses of this type may have a
    motive to give false evidence in the hope of gaining an advantage in their own
    cases: see for example,
R. v. Williams
(1974), 21 C.C.C. (2d) 1 (Ct.
    Martial App. Ct.), at pp. 10-12, leave to appeal refused, [1974] S.C.R. xii;
United
    States of America v. Shulman
, 2001 SCC 21, [2001] 1 S.C.R. 616, at paras.
    55-59.  As S. Casey Hill, David M. Tanovich and Louis P. Strezos explain in
    their text,
McWilliams Canadian Criminal Evidence
, loose-leaf (2016-Rel.
    1), 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2016), at pp. 34-76 to
    34-77: [t]he danger is that the witness may be tempted to falsely testify in a
    fashion overly favourable to the prosecution expecting that such cooperation
    will yield dividends in his or her pending sentencing hearing.

[40]

The need for a cautious approach, however, does not render the evidence
    of an accomplice who is awaiting sentencing or trial inadmissible.  Rather, the
    evidence is admissible and it is up to the trier of fact, employing requisite
    care, to determine the weight to be assigned to it.

[41]

In
Shulman
, a well-known extradition case, the Supreme Court
    addressed this issue directly.  In that case, the extradition judge at Mr.
    Shulmans committal hearing relied on affidavits from two alleged
    co-conspirators who had pleaded guilty and were awaiting sentence.  On appeal, Mr.
    Shulman argued that use of the affidavits violated his s. 7
Charter
rights
    because it constituted an invitation to perjury by the alleged co-conspirators,
    who could tailor their evidence in favour of the prosecution to seek a lesser
    sentence:
Shulman
, at para. 56.

[42]

The Supreme Court disagreed.  It held, at para. 59, that the fact that
    the [co-conspirators] were awaiting sentence at the time of their evidence goes
    to weight, not admissibility.  In so holding, the court, at para. 58, endorsed
    the comments of McIntyre J. in
Williams
, at p. 11, as cited with
    approval by Ritchie J. for the majority in
United States of America v.
    Shephard
(1976), [1977] 2 S.C.R. 1067, at p. 1086:

While the practice of calling an accomplice against whom
    unresolved legal proceedings are outstanding is to be frowned upon and even
    condemned involving as it does grave dangers in that a witness may be provided
    with a strong motive to colour his evidence or give false evidence I cannot say
    that such evidence is inadmissible nor that its reception will void a
    conviction.
The effect of the Canadian decisions is to indicate that while
    such a step may affect the weight of evidence offered in this fashion it does
    not go to the question of admissibility
.  [Emphasis added.]

[43]

The same principles have been held to apply where a co-accused who is
    awaiting sentencing gives evidence under the protection of the
CEA
against self-crimination.  In
R. v. Caulfield
(1972), 10 C.C.C. (2d) 539,
    at p. 540, for example, the Alberta Court of Appeal stated:

The fact that [the co-accused] gave evidence under the
    protection of the
Canada Evidence Act
, R.S.C. 1970, c. E-10, before
    being sentenced, but after pleading guilty, does not render the conviction
    bad.  We agree that it is a practice that should not be followed but should be
    discouraged,
but provided the tribunal, if a jury, is warned of the dangers
    of this or a judge sitting alone realizes them, as he did in this case, where
    he warned himself specifically of the dangers of accepting this evidence, it is
    not fatal to the conviction
.  [Citations omitted; Emphasis added.]

[44]

In this case, the appellant accepts that Keenans evidence was
    admissible.  However, as I have said, the appellant submits that the trial
    judge erred by assigning
any
weight to Keenans testimony given
    Keenans alleged history of opportunism, directed at obtaining a benefit from
    the authorities in exchange for his co-operation.  During oral argument, the appellants
    counsel put it this way: [w]hile Keenans evidence might have been admissible 
    the risks of fabrication here were too great to afford any weight to his
    evidence.  In other words, the appellant contends that the trial judge failed
    to exercise the necessary caution in accepting Keenans evidence.

[45]

I disagree.  In my view, the trial judges reasons belie this contention.

[46]

First, as I have said, the trial judge recognized that Keenan was an
    unsavoury witness and cautioned himself in accord with the principles
    enunciated in
Vetrovec
and
Khela
regarding Keenans
    testimony, although such a caution was not mandatory in this judge alone trial. 
    He summarized the Supreme Courts central instructions in
Khela
, in
    this fashion:

[Caution is required regarding] [a]ll witnesses who, because of
    their amoral character, criminal lifestyle, past dishonesty or interest in the
    outcome of the trial cannot be trusted to tell the truth even when they have
    expressly undertaken by oath or affirmation to do so.

Also the trier of fact is to be alert to the concern that
    unsavoury witnesses are prone to favour personal advantage over public duty.

In determining the veracity of the suspect evidence, the trier
    of fact should look for evidence from another source tending to show that the
    untrustworthy witness is telling the truth as to the guilt of the accused.

Evidence to be considered confirmatory does not have to
    implicate the accused.

[47]

The trial judge also referenced this courts decision in
R. v.
    Drabinsky
, 2011 ONCA 582, 107 O.R. (3d) 595, leave to appeal refused,
    [2011] S.C.C.A. No. 491, regarding the assessment of the credibility of Crown
    witnesses who have a self-interest in assisting the prosecution to protect
    themselves from the consequences of their own criminal activity.  Having found
    Keenan to be an unsavoury witness and having considered
Vetrovec
,
Khela
and
Drabinsky
, the trial judge then stated:

In considering whether Keenan is telling the truth that his
    accomplice in the robbery was the [appellant], I have taken into account the 
Vetrovec/Khela

    instructions referred to.

[48]

On my reading of the trial judges reasons, he did precisely what he
    said he had done. In undertaking his
Vetrovec/Khela
analysis of
    Keenans evidence, he detailed many of the problems associated with Keenans
    testimony, alluding to his criminal record (which included convictions or
    findings of guilt for mischief, possession of narcotics and theft), his plea of
    guilty as a party to the charge of simple robbery in connection with the incident
    before the court, his outstanding drug charges, and the fact that he was yet to
    be sentenced.

[49]

Importantly, the trial judge was also aware that Keenans guilty plea
    had been based, and accepted by the Crown at the plea hearing, on the facts
    asserted by him in his police statement.  Those facts limited his participation
    in the robbery to being the driver of the getaway car, without direct involvement
    in the home invasion or the ensuing robbery.  Similarly, the trial judge knew that
    Keenan had pleaded guilty only to being a party to the offence and not a
    principal.

[50]

This information emerged at trial in various ways.  First, the transcript
    of Keenans plea proceeding on April 12, 2011 was filed by the defence at the
    appellants trial.  It contained the following description by Keenans counsel
    of the facts asserted to support the plea and a finding of guilt:

The brief facts are that on that day,
Mr. Keenan drove a
    motor vehicle with a number of other individuals to the residence of [the
    victims]
on the understanding that there was likely to be a theft taking
    place.  It did take place and, during the course of that, violence was used.
He
    then drove the individuals away from there.  He had knowledge that it had taken
    place
.  He had knowledge that it had taken place, and he 
certainly
    he is entering a plea as a party to the offence.  Obviously, the matter will be
    fleshed out in greater detail sometime subsequently, as well as dealing with
    the large number of federal offences which have been at the moment delegated to
    the province
.  [Emphasis added.]

[51]

That the trial judge understood the foundation for Keenans guilty plea
    was confirmed during closing submissions. In her closing at the appellants
    trial, at the request and with the consent of defence counsel, Crown counsel detailed
    the Crowns position on sentencing concerning Keenans drug charges and his
    robbery conviction.  The following exchange with the trial judge took place:

[The Crown]:
[I]ts a plea to a possession for the
    purpose of trafficking being cocaine, possession for the purpose of trafficking
    being marijuana, and the robbery in relation to this incident: robbery
    simpliciter
.
The Crowns position on the robbery was 17 months in
    jail, on the possession for the purpose of cocaine, 13 months consecutive, and
    on the possession for the purpose marijuana, 7 months consecutive
.
[2]
I should point out that
the federal Crown and the provincial Crown
    crafted our position together for a total of 37 months.  It is not a joint
    submission on sentence.  In other words, counsel for Mr. Keenan, as I
    understand it, will be arguing for a lesser sentence.  I can also indicate that
    this position was formulated prior to Mr. Keenan testifying at the preliminary
    hearing, such that the only admissible evidence that the Crown had against Mr.
    Keenan respecting his involvement in this matter came from the statement that
    he gave to the police.  That, of course, remains the case given that he did
    seek the protection of the [CEA] and the Charter, that is, that that remains
    the only admissible evidence against Mr. Keenan
.

The Court:   [W]ould it be fair to say, then, that
since
    you were basing your acceptance of the plea on his statement to the police, in
    that statement, he said he was the driver and did not go into the residence
?

[The Crown]: Thats correct, yes.  [Emphasis added.]

[52]

Thus, to summarize, when assessing Keenans credibility and reliability,
    the trial judge was well aware: i) that Keenan had yet to be sentenced on his
    robbery conviction; ii) that his sentencing hearing had been repeatedly
    adjourned; iii) that his drug charges remained outstanding; iv) that the facts
    underpinning

his

guilty

plea on the robbery charge contemplated his involvement only as the
    getaway driver and not as a principal; v) that Keenan had invoked the protections
    against self-crimination of the
CEA
and the
Charter
when
    testifying both at the appellants preliminary inquiry and trial; vi) that the
    Crown had essentially undertaken to Keenan and confirmed to the trial court
    that it would not seek to rely on Keenans trial testimony at his sentencing
    hearing; and vii) of the Crowns position, fixed prior to the appellants
    preliminary inquiry, as to the appropriate sentences for Keenans offences.

[53]

The trial judge explicitly factored these considerations into his
    evaluation of Keenans testimony.  For example, he stated:

In addition to Keenans unsavoury background,
I need to
    weigh the effect of the rather unusual way in which the charges that Keenan was
    facing have been dealt with
.  They include both the charges for the
    possession of drugs for the purpose of trafficking  as well as the charges
    arising out of his involvement in this robbery.

For some unexplained reason
,
no date has yet been
    set for the [drug] charges 
the Preliminary Hearing and further
,
    although he pleaded guilty on April 12, 2011 to being a party to the break and
    enter and robbery, he still has not been sentenced.  The Crown agreed not to
    oppose his plea based on Keenans statement to the police...that he was only
    the driver of the car, but he was aware that a break and enter, and robbery
    would be committed by the two other people.

Under the protection of the [CEA] and the Charter, we now
    know that he was not just the driver but he was one of the intruders and that
    he was carrying and brandishing a loaded handgun in the home invasion and
    robbery.
[Emphasis added.]

[54]

Against the backdrop of these explicit considerations, the trial judge
    ultimately accepted Keenans evidence of the appellants involvement in the
    robbery and home invasion.  As the Crown emphasizes, the trial judge did not
    accept this evidence unquestioningly.  To the contrary, he listed those parts
    of Keenans testimony that he viewed as not being credible, recognized that
    Keenans declaration that he intended to accept responsibility for his criminal
    conduct must be taken with a grain of salt in light of his willingness to
    plead guilty only as a party to the robbery, and identified those parts of
    Keenans evidence that he did accept, for reasons he explained.

[55]

I see no error in the trial judges approach to or evaluation of Keenans
    evidence.  He took all relevant factors into account and considered the
    specific and inherent frailties in Keenans testimony, in the circumstances. 
    He rejected parts of his testimony as unworthy of belief and accepted others. 
    These tasks were squarely within the trial judges purview.  At the end of the
    day, no material misapprehension of evidence having been alleged, the trial
    judges appreciation of the evidence, his assignment of weight to Keenans
    testimony and his credibility findings all attract deference from this court.

(ii)

Fresh Evidence

[56]

I turn now to the admissibility and effect of the proposed fresh
    evidence.

[57]

Under s. 683(1) of the
Criminal Code
, R.S.C. 1985, c. C-46,
    this court may receive fresh evidence on appeal where it considers it in the
    interests of justice to do so.

[58]

There is no dispute as to the criteria for receipt of fresh
    evidence under s. 683(1).  They require that the proposed fresh evidence: i)
    could not have been adduced at trial, through the exercise of due diligence;
    ii) is relevant, in that it bears upon a decisive or potentially decisive issue
    in the trial; iii) is credible, in the sense that it is reasonably capable of
    belief; and iv) is such that, if believed, and when taken with the other evidence
    at trial, it could reasonably be expected to have affected the result.  To this
    must be added that the due diligence criterion will not be applied as strictly
    in criminal cases as in civil cases:
Palmer v. The Queen
(1979),
    [1980] 1 S.C.R. 759, at p. 775;
Shulman
, at para. 43.

[59]

In
Truscott (Re)
, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para.
    92, this court clarified and restated the
Palmer
criteria, in this
    fashion:

[The
Palmer
] criteria are well known.  They encompass
    three components:

1)

Is the evidence
    admissible under the operative rules of evidence?

2)

Is the evidence
    sufficiently cogent in that it could reasonably be expected to have affected
    the verdict?

3)

What is the
    explanation offered for the failure to adduce the evidence at trial and should
    that explanation affect the admissibility of the evidence?

[60]

The appellant argues that the proposed fresh evidence satisfies all the
Palmer
criteria.  In particular, he submits that it could have resulted in different
    verdicts.

[61]

The appellant says that the proposed fresh evidence establishes that,
    contrary to the trial judges finding, Keenan in fact was not willing to take
    responsibility for his role in the robbery.  It shows that, at his sentencing
    hearing, Keenan was permitted to revert to his claim of minimal involvement in
    the robbery notwithstanding his clear admission at the appellants trial that
    he was a principal participant.

[62]

The thrust of the appellants argument is that the trial judge would
    have rejected Keenans evidence, and therefore acquitted the appellant, if he
    had known that: i) Keenan would later revert back to his getaway driver
    story; and ii) Keenan would seek and receive a significant mitigation benefit on
    sentencing as a result of his co-operation with the authorities.  According to
    the appellant, Keenans actions after the appellants trial vitiate the trial
    judges findings concerning Keenans credibility.  These findings, the
    appellant submits, were based primarily on the trial judges erroneous holding
    that Keenan had reformed and was willing to tell the truth and take
    responsibility for his criminal conduct.

[63]

I would reject these arguments.

[64]

In my view, the proposed fresh evidence adds nothing significant to what
    the trial judge already knew when he was assessing Keenans credibility.  To
    the contrary, based on the information before him, the trial judge had a full
    picture of the material considerations regarding Keenans guilty plea, his
    outstanding charges and sentencing, the Crowns intended position on his
    sentencing and the defence entitlement to argue for a lesser sentence.  I am
    therefore not persuaded that, if the trial judge had known what would occur at
    sentencing, he would have come to a different conclusion regarding Keenans
    credibility.  Nor, on this record, can there be any serious suggestion that the
    trial judge was under the impression that Keenan, after insisting on the
    protections afforded to him by s. 5(2) of the
CEA
and s. 13 of
    the
Charter
, would later admit to greater involvement in the robbery
    to assist the Crown in aggravating his sentence beyond the fixed position described
    by the Crown at the appellants trial.

[65]

In these circumstances, I conclude that the proposed fresh evidence is
    not sufficiently cogent that it could reasonably be expected to have affected
    the trial verdicts. I reach this conclusion for the following reasons.

[66]

First, as I have already emphasized, the trial judge was aware of the
    factual basis for Keenans guilty plea on the robbery charge.  Based on the
    transcript of the plea proceeding, Keenans statement to the police, and the
    Crowns closing submissions, the trial judge knew that Keenan had entered a
    plea only as a party to the robbery on the basis that he was the driver of the
    getaway car and did not enter the victims residence.

[67]

The trial judge also knew that Keenan had twice explicitly invoked his
    rights under s. 5(2) of the
CEA
and s. 13 of the
Charter
, including
    at trial, and that the Crown had agreed that it would not seek to rely on
    Keenans trial testimony at his sentencing hearing.  Consequently, for the
    purpose of that hearing, Keenan could not be held to the altered version of
    events outlined by him at trial.

[68]

Crown counsel also informed the trial judge of the Crowns position on sentence
    regarding Keenans robbery conviction and his outstanding drug charges, and acknowledged
    that Keenans counsel could argue for a lesser sentence.

[69]

Nothing in the proposed fresh evidence adds materially to any of these
    facts.  It simply confirms what the appellant, his trial counsel and the trial
    judge already knew: i) that Keenan pleaded guilty to robbery on facts less
    blameworthy and inculpatory than those to which he admitted at the appellants
    preliminary inquiry and trial; ii) that his admission of greater involvement in
    the robbery placed him squarely at the heart of the crime, as a principal; iii)
    that his trial testimony was sheltered under s. 5(2) of the
CEA
and s.
    13 of the
Charter
; iv) that, as a result, barring subsequent perjury
    or contradictory evidence by Keenan (which did not occur), the Crown had no
    admissible evidence against Keenan upon which it could rely, except what he had
    said in his police statement; v) that the Crown and defence had not agreed on a
    joint sentencing position; and vi) that the Crowns position on sentence was
    fixed before the appellants preliminary inquiry, when Keenan first gave a more
    damning account of his role in the robbery and home invasion.

[70]

Second, the defence theory that Keenan had a motive to fabricate and had
    only changed his version of events to gain a benefit for himself, was put
    squarely before the trial judge.  During Keenans cross-examination and in
    final submissions, defence counsel relied heavily on Keenans plea of guilty to
    simple robbery, his outstanding sentencing hearing, and his reliance on the
CEA
and the
Charter
at the preliminary inquiry and again at trial to argue
    forcefully that Keenan was untrustworthy, self-interested, unreformed,
    unaccountable and unprepared to accept responsibility for his actions.

[71]

For example, with respect to the significance of Keenans invocation of
    the protections against self-crimination afforded by the
CEA
and the
Charter
,
    defence counsel argued:

The Court: Well whats  what would be the downside, youd say,
    of not [invoking s. 5(2) of the
CEA
]?

[Defence Counsel]: Of not doing it? Well he would be exposing
    himself, of which admitted to, to, you know, possible ramifications in the
    criminal justice system by virtue of his evidence. So hes
 he gives the
    evidence that he did and he can say anything he wants in terms of past criminal
    behaviour and not face any repercussions with respect to that.

So, in
    my view, its just  because he says, I want to be accountable, but he
    doesnt really want to be accountable, in my submission.
[Emphasis
    added.]

[72]

Defence counsel also specifically alerted the trial judge to the benefit
    that Keenan stood to gain on sentencing as a result of implicating the
    appellant in the robbery and home invasion (a benefit that Keenan ultimately
    did obtain):

[Keenan is] prepared to turn on friends, and to escape
    responsibility for himself  We still dont know why the sentence hearing has
    been put over for such a long period of time  Mr. Keenan, in a statement,
    indicated that he thought he might be spending five years in jail, prior to
    leaking the statement to the police  My friend attempts to say that his character
    is changed.  I totally disagree with that given the evidence in this particular
    case.  Im thinking Mr. Keenan has somehow been able to, in effect, play the
    system by gaining advantages for himself to the point where we now know that
    hes looking at a 17-month sentence with respect  an extremely serious matter
    that would probably attract a much longer penitentiary time than 17 months.  So
    Mr. Keenan, in my view, continues to be very artful and manipulative.

[73]

Defence counsel then drove the point home, in unambiguous terms:

[The Crown] accepted a plea to simple robbery, you know, based
    on the evidence that they then had.
So, even if they wanted to proceed with
    the other charges, in my view, theres no additional evidence that they can
    rely upon by virtue of Mr. Keenans statements here. So, I think Mr. Keenan has
    really played the system very well, quite frankly, to his advantage
.
    [Emphasis added.]

[74]

Third, contrary to the appellants submission, it is inaccurate to say
    that the trial judges acceptance of Keenans testimony was based primarily on Keenans
    claim that he was prepared to take responsibility for his criminal conduct and
    on the trial judges belief that Keenan was committed to rehabilitation. Based
    on his reasons, these were clearly important factors in the trial judges
    assessment of Keenans credibility and reliability. But, as I have explained,
    they were not the only factors.

[75]

It is also important to consider the actual language of Keenans
    assertion, on cross-examination, that he was prepared to take responsibility
    for his actions.  After Keenan confirmed that he gave his evidence at the
    appellants preliminary inquiry under the protections of the
CEA
and
    the
Charter
, he testified:

Q.      All right.  And you understand the effect of that protection
    is that your evidence cannot be used against you, is that correct, in any
    subsequent proceedings?

A.       Correct.

Q.      All right.  And why, given your evidence about living a
    new lifestyle, why did you want the protection of the [
CEA
]?

A.       Well, I would say that would be because I would
    incriminate myself on a few things Ive said up here.

Q.      All

right.

And you dont want to take
    responsibility, I take it, for those things, in terms of other criminal
    proceedings, is that correct?

A.
Ill absolutely take the responsibility for it.

Q.      Well, how do you plan to do that?

A.
If its brought up in my court in my proceedings
    in my case, and certain things were brought to light in my case, I would
    certainly admit to them or not admit to them
.  [Emphasis added.]

[76]

Keenan gave contradictory answers to counsels questions.  While he said
    that he would absolutely take the responsibility for incriminatory things he
    said at trial, he also stated that, if those things were raised in his case, I
    would certainly admit to them
or not admit to them
 (emphasis added). 
    Keenans testimony thus left open the possibility that he might not admit the
    inculpatory parts of his trial testimony if they were raised at his sentencing
    hearing. Defence counsel chose not to further cross-examine Keenan on whether
    he would continue to rely on s. 5(2) of the
CEA
and s. 13 of the
Charter
at his sentencing hearing.

[77]

In any event, regardless whether Keenan genuinely was willing to take
    responsibility for his admitted larger role in the robbery and home invasion,
    all participants at trial understood that his inculpatory account at trial of
    his role would not, in fact, be brought to light in his case, at least by the
    Crown.

[78]

Viewed in the context of the way the trial unfolded and the nature of
    the case run by the defence, the proposed fresh evidence adds little to the
    picture of Keenans alleged manipulative propensity or the defence theory that
    he was gaming the system.  This theory was fully developed at trial.

[79]

Nor does the proposed fresh evidence regarding Keenans alleged
    rehabilitative efforts and commitment materially augment the information that
    was available to the trial judge.  There was evidence of these efforts and
    commitment before the trial and sentencing judges.  Both judges assessed the
    evidence before them and concluded that Keenans desire to rehabilitate himself
    was genuine.  This finding was open to the trial judge on the record.  The
    evidence supporting this finding simply improved by the time of Keenans
    sentencing, with the filing of a positive pre-sentence report.

[80]

Fourth, the appellant maintains that the ASF filed at Keenans
    sentencing hearing would have provided fertile ground to impeach Keenans
    credibility.  The ASF, the appellant says, demonstrates that Keenan was either
    lying to the court at trial regarding his role in the robbery and home invasion
    or he was misleading the court on this issue at his sentencing hearing.

[81]

There is no doubt that the ASF depicted Keenans participation in the
    robbery and home invasion in a far less damaging light than did his testimony
    at the appellants trial.  The filing of an ASF that disclosed only Keenans
    initial and more favourable account of his involvement, without any reference
    to his changed story that emerged in his testimony, is troubling.  It was also
    misleading.

[82]

However, the Crown had accepted that the admissions made by Keenan at
    trial were inadmissible at the sentencing hearing and could not be relied upon
    by the Crown.  In these circumstances, the ASF was based on the only available,
    admissible evidence against Keenan.

[83]

For the purpose of this appeal, the important point is that the ASF
    contained nothing significantly new.  It simply reiterated the version of
    events recounted by Keenan in his police statement, a version known to the
    Crown, defence counsel, the appellant and the trial judge at the appellants
    trial.

[84]

To the extent that the description of Keenans role in the ASF had potentially
    productive impeachment value, this impeachment opportunity already existed at
    trial, based on Keenans police statement and his conflicting trial testimony. 
    And defence counsel at trial exploited this avenue of cross-examination by
    pressing Keenan on the contents of his police statement, his reasons for giving
    it, his minimization in the statement of his own role and complicity, and his
    untruthfulness.  The ASF, therefore, did not materially augment this
    impeachment opportunity.

[85]

I make this final point.  There was a thread of material consistency
    running through Keenans various accounts of the robbery and home invasion.  In
    his police statement, his preliminary inquiry testimony and his trial evidence,
    Keenan identified the appellant as one of the principal perpetrators of the
    robbery and home invasion.  The ASF, deriving as it did from Keenans police
    statement, simply did so for a fourth time. This significantly undercuts the
    appellants assertion that Keenan falsely testified about the appellants
    involvement in order to gain a benefit from the authorities in relation to his
    own charges.

[86]

For all these reasons, I conclude that the proposed fresh evidence does
    not satisfy the cogency requirement for admission on appeal.

(2)      Other Grounds of Appeal

[87]

The court did not call on the Crown to respond to the appellants
    remaining grounds of appeal.  They may be dealt with summarily.

(i)       Confirmatory Evidence

[88]

First, the appellant contends that the trial judge erred by holding that
    aspects of Kelmans testimony confirmed parts of Keenans evidence.  This contention
    is also undercut by the trial record.

[89]

As held by the Supreme Court in
R. v. Kehler
, 2004 SCC 11, [2004]
    1 S.C.R. 328, at paras. 15-16, and reiterated in
Khela
, at paras.
    40-43, Kelmans evidence did not have to implicate the appellant in the home
    invasion and robbery to be considered confirmatory.  Further, in the absence of
    evidence of collusion or collaboration, the evidence of one unsavoury witness
    can confirm the testimony of another:
R. v. Roks
, 2011 ONCA 526, 274
    C.C.C. (3d) 1, at para. 67;
R. v. Pelletier
, 2012 ONCA 566, 291 C.C.C. (3d)
    279, at para. 69.  There is no evidence of collusion or collaboration in this
    case.

[90]

Importantly, where the only issue in dispute is whether the accused
    before the court committed the offence, a trier of fact is entitled to convict
    on the evidence of an unsavoury witness even in the absence of confirmatory
    evidence, as long as the trier is aware of the dangers of doing do and is
    satisfied that the witness, despite the frailties or shortcomings in his or her
    evidence, is telling the truth in that regard:
Khela
, at para. 37;
Kehler
at para. 22;
Roks
, at paras. 65-66;
Pelletier
, at paras. 67-68.

[91]

Here, Kelmans testimony confirmed an important and relevant aspect of
    Keenans evidence at trial.  He said that Keenan and his friend went into the
    victims house and carried out the robbery, while Kelman himself remained in
    the getaway car.  In other words, although Keenan had initially minimized his
    involvement in the home invasion and robbery, Kelman confirmed his greater participation,
    as Keenan detailed at trial.

[92]

Kelman also confirmed other aspects of Keenans version of events at
    trial.  As noted by the trial judge, he confirmed Keenans evidence that he and
    Keenan had driven by the victims residence before the date of the robbery,
    that Kelman participated in the robbery because he owed Keenan money for drugs,
    that it was Kelmans shotgun that was used in the robbery, that the proceeds of
    the robbery were divided at Kelmans home, and that Kelman received some of the
    stolen drugs.

[93]

In accordance with the principles set out in
Vetrovec
and
Khela
,
    the trial judge recognized that the other evidence at trial should be scrutinized
    to determine if it could afford comfort that Keenan could be trusted in his
    assertion that the appellant was the third robber.  He held, in effect, that
    aspects of Kelmans testimony provided some comfort of Keenans trustworthiness
    on this central issue.

[94]

This was part of the trial judges fact-finding function.  I see no
    reversible error in his holding.  In the respects outlined above, Kelmans
    evidence could properly be viewed as confirmatory of aspects of Keenans
    testimony.  I would dismiss this ground of appeal.

(ii)      Uneven Scrutiny

[95]

I reach a similar conclusion concerning the appellants submission that
    the trial judge erred by applying different standards in assessing the evidence
    of Kelman and Keenan.

[96]

This court has previously recognized that it is difficult for an
    appellant to succeed on the different standards of scrutiny argument for two
    related reasons.  First, credibility findings are the province of the trial
    judge and attract a very high degree of deference on appeal.  Second, appellate
    courts invariably view this argument with skepticism, seeing it as a veiled
    invitation to reassess the trial judges credibility determinations:
R. v.
    Aird
, 2013 ONCA 447, 307 O.A.C. 183, at para. 39.  To succeed in this
    argument, an appellant must identify something in the trial judges reasons or
    the record that makes it clear that the trial judge applied different standards
    of scrutiny in assessing the evidence in question:
Aird
, at para. 39;
R.
    v. Gravesande
, 2015 ONCA 774, 128 O.R. (3d) 111, at para. 19.

[97]

This threshold has not been met here.  I have already described the
    trial judges approach to Keenans evidence and his assessment of Kelmans
    testimony.  I see nothing uneven in his evaluation of the evidence of these
    witnesses.  To the contrary, I regard his approach as balanced and fair.  As I
    have said, the trial judge subjected Keenans evidence to special scrutiny. 
    This was appropriate and necessary as the Crowns case against the appellant
    turned on his testimony and he was an unsavoury witness.

[98]

Finally, the trial judge rejected Kelmans evidence on its own terms,
    for clear and cogent reasons, including: his failure to exonerate the appellant
    on a timely basis, despite ample opportunity to do so; the implausibility of
    his evidence regarding the robbery; his extensive criminal record (including
    for multiple crimes of dishonesty); his apparent animus toward Keenan; and his
    friendship with the appellant.  Based on the trial judges reasons, I agree
    with the Crowns submission that the rejection of Kelmans evidence was rooted
    in common sense, not a higher level of judicial scrutiny.

VII.     Disposition

[99]

For the reasons given, I would dismiss the appellants fresh evidence application. 
    I would also dismiss the appeal.

Released:

BM                                                    E.A.
    Cronk J.A.

JUL 19 2016                                     I agree
    John Laskin J.A.

I
    agree B. Miller J.A.





[1]
Under s. 5(2) of the
CEA
, with
    certain exceptions, where a witness objects to answer any question on the
    ground that the answer may tend to criminate him, then although the witness is
    compelled to answer by reason of the
CEA
or any provincial statute, the answer given cannot be used or is inadmissible
    in evidence against the witness in any later criminal trial or other criminal
    proceeding against the witness. A similar protection against self-crimination,
    subject to identical exceptions in a prosecution for perjury or for the giving
    of contradictory evidence, is enshrined in s. 13 of the
Charter
.



[2]
For reasons that are unexplained on the record before this court, Crown counsel
    at Keenans sentencing hearing sought a sentence of 22 months imprisonment on
    the robbery charge  five months longer than the Crown had indicated at the
    appellants trial.


