



WARNING

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

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the
    Criminal Code
provide:

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    information that could identify the victim or a witness shall not be published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

(a)     any of the following
    offences;

(i)      an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01,
    279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any
    offence under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1) Subject to subsection (2.2),
    in proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of
    an offence other than an offence referred to in subsection (1), if the victim
    is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
    the victim of their right to make an application for the order; and

(b) on application of the victim
    or the prosecutor, make the order.

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

(4)     An order made under this
    section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community.
2005, c. 32, s. 15; 2005, c. 43, s.  8(3)(b);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.  13,
    s. 18.

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

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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Litt, 2021 ONCA 510

DATE: 20210716

DOCKET: C65746

MacPherson, Trotter and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Grant Litt

Appellant

Danielle Robitaille and Lauren Mills
    Taylor, for the appellant

Jamie Klukach and Caitlin Sharawy, for
    the respondent

Heard: January 21, 2021 by video conference

On appeal from the conviction entered on
    May 10, 2018 by Justice Frederic M. Campling of the Ontario Court of Justice.

Harvison Young J.A.
:

A.

Overview

[1]

The charges underlying this appeal arose out of
    a frightening home invasion. When the 15-year-old complainant answered the
    door, she was attacked by a young man who pushed her to the floor and later fled.
    The appellant was charged with breaking and entering and committing an
    indictable offence, touching a person under 16 for a sexual purpose, and
    attempting to choke a person to enable himself to commit the indictable offence
    of sexual assault.

[2]

The only issue at trial was identity. The
    complainant had provided descriptions of the attacker and worked with the
    police to create a composite sketch. She had also noted the appellants photo
    in a photo line-up. The attacker had left a boot print on the floor at the
    home, and the Crown advanced expert evidence at trial comparing the boot print at
    the scene with the appellants boots, which were seized from his car. The
    appellants evidence on his whereabouts also placed him in the vicinity of the
    complainants home around the time of the attack. The trial judge convicted the
    appellant of all three charges.

[3]

On appeal, the appellant argues that the trial
    judge erred in his assessment of the evidence and erred in dismissing his
    application to exclude from evidence his boots and evidence flowing from those
    boots pursuant to s. 24(2) of the
Canadian Charter of Rights and Freedoms
.
    He also seeks to introduce fresh evidence consisting of a revised opinion on
    the boot print by the Crowns expert from trial.

[4]

For the following reasons, I conclude that this
    fresh evidence must be admitted with the result that the appeal must be allowed
    and a new trial ordered. Accordingly, it will not be necessary to consider the
    other grounds of appeal except to the extent that any aspects of those
    arguments bear on the fresh evidence issue.

B.

BACKGROUND

(1)

Facts

[5]

The 15-year-old complainant and her sister had
    just arrived home from school. They lived on a country road near Hamilton,
    Ontario. The complainant was vacuuming when the family dog started barking. She
    looked out the window and saw a red dump truck parked on the road. A few
    minutes later, a young man knocked on her door, asked for directions, came into
    the home, grabbed her by the arms, and pushed her to the floor. She started
    screaming, and he started to touch her breasts. He put his hand over her mouth
    and choked her, but he abandoned the attack when her sister in another room
    heard screaming and called out. The young man fled.

[6]

The complainant called 911 shortly after the
    attack. That evening, at a police interview, she provided the police with a
    detailed description of her attacker. A boot print was also found on the floor
    of the house. The day after the attack, the complainant met with police to
    create a composite sketch of her attacker.

[7]

The appellant worked for a landscaping company,
    which had headquarters near the complainants home, in the spring of 2016. The employees
    used red trucks. On May 25, 2016, the day of the attack, the appellant was in Guelph
    with his grass cutting crew and returned to the company headquarters in the
    afternoon at around 3 to 4 p.m. He was driving a red dump truck that day. After
    returning to headquarters, he went to the dump alone to dispose of the grass
    clippings, located to the west. To delay having to clean out his bosss pond,
    which was an apparently unpleasant job, he went east instead and drove up the
    road the complainant lived on before looping back to the dump. This added
    around five minutes to his trip. The appellants route in a red dump truck on
    the way to the dump took him past the complainants home around the time of the
    attack. The appellant testified at trial and denied attacking the complainant.

[8]

The police planned to arrest the appellant,
    seize his boots and cell phone incidental to arrest, secure his vehicle, secure
    his home, and then release him unconditionally. They also planned to then
    obtain search warrants for his car, home, and cell phone. The appellant was
    arrested on June 1, 2016 and read his rights and cautioned. The police seized
    his cell phone and the boots he was wearing, which were new. They noticed another
    pair of boots in his car as well. The appellant was handcuffed and placed in
    the back of the police car. One officer asked for his consent to search his
    phone and vehicle, which the appellant declined. The appellant was unconditionally
    released about an hour later, and in the meantime, the police had secured his
    home and towed his vehicle to the police station. The police obtained a search warrant
    for the car the next day and seized the pair of boots.

[9]

According to the police, the appellant had not
    asserted his right to counsel at any point. According to the appellant, he was
    searched and handcuffed before he was read his rights and cautioned, and he had
    asserted his right to counsel multiple times and had given his lawyers name,
    but the police did not facilitate a call to his lawyer. During the trial, the
    appellant applied under s. 24(2) of the
Charter
to exclude the evidence
    of or any evidence flowing from the boots seized from his car based on alleged
    breaches of ss. 8, 9, and 10(b). The trial judge assumed, without deciding,
    that the appellants right to counsel had been breached when he was arrested, and
    the trial judge held that the evidence was admissible on the basis that the
    evidence had not been obtained in a manner that violated the appellants
Charter
rights pursuant to s.24(2).

[10]

The complainant participated in a photo line-up
    on July 20. The appellants photo was taken from his drivers licence, which
    could not be enlarged without degrading it, so the photos in the line-up were
    all rather small. The complainant selected the appellants photo, saying
    [t]his picture really stood out to me  Im not really sure why  it really
    reminds me of  the person who was at my home.

[11]

The appellant was arrested and charged with the
    attack on the complainant on December 15.

(2)

Reasons for Conviction

[12]

The trial judge began his reasons by reviewing
    the circumstances of the attack on the complainant and her evidence on the
    attackers description. There were some discrepancies between her descriptions
    given at various times, which were minor and understandable, and some
    differences between the descriptions and the appellant. He also noted that the
    appellant resembled the composite sketch that the complainant and police
    created. The trial judge found that the photo line-up was fair, based on the complainants
    description, and he discussed the complainants photo line-up evidence and
    evidence at trial. Based on the appellants lies in his evidence regarding his
    physical appearance, the trial judge disbelieved the appellants denial of the
    attack.

[13]

He then described one part of the other evidence
    implicating the appellant, the evidence on the boot print. The Crown had called
    an expert on footwear impressions, Sgt. Annette Huys, to compare the boot print
    left at the complainants home with the old boots seized from the appellants
    car. The experts opinion was that there was a high degree of association
    between the left boot from the appellants car and the boot impression at the
    scene. The trial judge found that the evidence came extremely close to proving
    that the left boot from the appellants car made the impression in the
    complainants home.

[14]

In conclusion, the trial judge said that he
    considered all of the evidence, and that because the appellant lied rather
    obviously to exonerate himself, he disbelieved the appellants evidence of
    innocence. The Crowns evidence was overwhelming proof that the appellant
    attacked the complainant, and the trial judge convicted the appellant of all
    three charges.

C.

Discussion

[15]

The appellant raises a number of grounds of
    appeal. First, he claims that the trial judge erred in his assessment of the
    evidence by failing to properly and evenly scrutinize the evidence. He also
    claims that the trial judge misapprehended the expert evidence when he
    described it as coming extremely close to proving that the appellants boot
    seized from his car made the impression at the scene, when her opinion was that
    there was a high degree of association between the two.

[16]

Second, the appellant argues that the trial
    judge erred in failing to exclude the boot print evidence on the basis that it
    was not obtained in a manner that infringed a
Charter
-protected
    interest. He submits that his boots were obtained in the same investigative
    transaction as his initial arrest on June 1, and that the trial judge erred in
    accepting the Crowns argument that the search of the appellants car the next
    day, which led to the seizure of the boots, was not sufficiently connected to
    the failure to permit him to contact a lawyer.

[17]

The appellant also asks this court to admit fresh
    evidence on appeal. The fresh evidence consists of a revised expert report by
    the same expert, Sgt. Annette Huys, whose original report concluded that there
    was a high degree of association between the impression at the scene and the
    appellants boot. She prepared the subsequent report after reviewing an expert
    report obtained by the appellants appeal counsel after the trial. In this
    report, her opinion is that there is only an association of class
    characteristics between the impression at the scene and the appellants boot.

(1)

The Fresh Evidence

[18]

It will be useful to review the circumstances
    giving rise to the application to admit fresh evidence on this appeal.

[19]

To form her opinions, Sgt. Huys used the Range
    of Conclusions Standard for Footwear and Tire Impression Examinations published
    by SWGTREAD (Scientific Working Group for Shoeprint and Tire Tread Evidence),
    which provides possible conclusions ranging from insufficiency of detail to a
    positive identification. For a conclusion of association of class
    characteristics, the class characteristics of design and physical size must
    correspond between the questioned impression and known footwear, and
    correspondence of general wear may also be present. For a conclusion of high
    degree of association, the questioned impression and known footwear must
    correspond in the class characteristics of design, physical size, and general
    wear. There must also exist: (1) wear that, by virtue of its specific location,
    degree and orientation make it unusual and/or (2) one or more randomly acquired
    characteristics. In Sgt. Huys original opinion, she based her comparison only
    on the first criterion, wear that is unusual. While she observed a small
    accidental characteristic in the heel in the test impression of the appellants
    boot, she did not base her opinion on it because of the debris in that area of
    the scene impression and lack of clarity.

[20]

Upon reviewing the trial judges reasons, the
    appellants appeal counsel (who was not trial counsel) sought their own opinion
    of the boot print evidence. A footwear analysis report (the Benton Report) was
    obtained on September 22, 2019 and provided to the Crown. Mr. Benton also used
    the SWGTREAD Range of Conclusions. He could not verify the conclusion reached
    by Sgt. Huys, but rather opined that the definition of this conclusion can be
    misleading and is not supported by the testimony and evidence provided. The
    conclusion that should have been reached was that there was either a limited
    association of class characteristics or an association of class
    characteristics between the appellants boot and the scene impression.

[21]

The Benton Report also considered the size of
    the possible population of boots that resembled those seized from the appellant.
    The appellants boots were mens size 9½ Kodiak Rebel Steel Toe 6 Inch Work
    Boots. The outsole pattern used on this boot was used from 2012 to 2016. The
    same mold is used for size 9 and 9½ boots. In only one year (2015-2016), 1909
    pairs of boots in those sizes were sold in Ontario. It is unknown how many were
    sold in the proximate years and geographic areas. In addition, the same outsole
    pattern has been used on 7 different models of footwear from the same
    manufacturer.

[22]

The appellate Crown provided this report to Sgt.
    Huys. Upon reconsideration, she changed her opinion, downgrading her conclusion
    about the footwear evidence along the lines of the Benton Report. Sgt. Huys, in
    her new report, stated that while in her opinion there was an association of
    wear from the scene impression to the test impression of the appellants boot, Mr.
    Benton had pointed out areas of discrepancy due to lack of clarity in the scene
    impression. This lack of clarity changed her level of opinion from a
high degree of association
between the appellants
    boot and the scene impression to association of class characteristics.

[23]

In her revised opinion, Sgt. Huys made no
    express findings about the degree of association of wear between the scene
    impression and the test impression from the appellants boot. But, when
    comparing her conclusion to the SWGTREAD Range of Conclusions, it can be
    inferred that she no longer viewed the scene impression as containing wear
    that, by virtue of its specific location, degree and orientation make it
    unusual. Rather, to fall within the scope of an association of class
    characteristics this must have been only general wear.

(a)

The Parties Submissions

[24]

The appellant argues that the fresh evidence is
    admissible pursuant to the test in
Palmer v. The Queen
, [1980] 1
    S.C.R. 759 and
Truscott (Re)
, 2007 ONCA 575, 225 C.C.C. (3d) 321 because
    it was not available at trial, it is cogent and would have affected the
    verdict, and is credible. In particular, he submits that the fresh evidence is
    highly relevant to the identity of the assailant, which was the only issue at
    trial, and that, given the trial judges heavy reliance on Sgt. Huys trial
    opinion that there was a high degree of association between the scene
    impression and the appellants boot print, it is clear that her revised opinion
    could have affected the verdict.

[25]

The respondent argues that the appellant fails
    to meet the cogency argument. In its view, the potential ability of the fresh
    evidence to affect the verdict must be considered within the broader context of
    the evidence as a whole. It argues that the Crowns case, viewed in its
    entirety, was overwhelming, and that even with the revised expert opinion, it
    defies reasonable possibility that the tight web of incriminating
    circumstantial evidence engulfing the appellant could have been the product of
    bad luck or incredibly unfortunate coincidence.

(b)

The Law

[26]

The test for the admission of fresh evidence on
    appeal begins with s. 683(1) of the
Criminal Code
, R.S.C. 1985, c.
    C-46, which provides that an appellate court has a broad discretion to receive
    evidence on appeal where it considers it is in the interests of justice to do
    so. The burden is on the applicant to establish that the fresh evidence is
    admissible:
R. v. Abbey
, 2017 ONCA 498, 140 O.R. (3d) 40, at para. 43.

[27]

As explained in
R. v. Allen
, 2018
    ONCA 498, 362 C.C.C. (3d) 509, leave to appeal refused, [2020] S.C.C.A. No. 298,
    the phrase interests of justice signals a broad discretion. However, this
    discretion is not unbordered and a context-sensitive inquiry is required. As
    this court explained, at para. 90:

The interests of justice are
    furthered when verdicts shown to be unreliable on the basis of fresh evidence
    are set aside. But those same interests  the interests of justice  would
    undoubtedly suffer if the appellate process were routinely invoked to rewrite
    the trial record several years later. Admitting fresh evidence on appeal
    necessarily undermines legitimate finality expectations. This negative
    consequence can only be justified if the overall integrity of the process is
    furthered by the reception of the fresh evidence. As a result, admitting
    further evidence on appeal of facts litigated at trial is, as it must be,
    exceptional
.
[Citations omitted.]

[28]

Although the overriding test for the admission of
    fresh evidence is the interests of justice, appellate courts have structured
    their discretion under this broad standard by prescribing a specific set of
    criteria to be addressed which may be understood as addressing these concerns:
Abbey
,
    at para. 44. The leading Supreme Court of Canada case articulating the criteria
    is
Palmer
. In
Truscott
, a five-judge panel of this court reformulated
    the
Palmer
test. As in
Abbey
, I will use our courts reformulation.
    It consists of three criteria, summarized in
Abbey
, at para. 44:

1.

Is the evidence admissible under the operative
    rules of evidence? (admissibility criterion)

2.

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

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? (due diligence criterion)

[29]

This appeal turns on the second and third
    criteria  the cogency and due diligence criteria.

(i)

Cogency

[30]

Cogency has a three-pronged focus:
Truscott
,
    at para. 99;
R. v. C.B.
, 2019 ONCA 380, 146 O.R. (3d) 1, at para. 134.
    The three prongs are:

1.

The proposed evidence must be relevant to a decisive or potentially
    decisive issue at trial;

2.

It must be credible in that it is reasonably capable of belief; and

3.

It must be sufficiently probative that, when taken with the rest of
    the evidence received at trial, it could reasonably be expected to have
    affected the result.

[31]

There is no question that the proposed evidence
    here is relevant to the identification of the person who attacked the
    complainant in her home, which was the central issue at trial. Similarly, there
    is no serious issue as to the credibility of the fresh evidence as it consists
    of an amended opinion of the same expert whose opinion the trial judge accepted
    and relied on at trial. The heart of the cogency question in this appeal is whether
    the proffered fresh evidence could reasonably have affected the verdict at
    trial.

[32]

In
R. v. Reeve
, 2008 ONCA 340, 233
    C.C.C. (3d) 104, at para. 72, Doherty J.A. wrote that the could reasonably be
    expected to have affected standard is somewhere between would probably have
    affected the result and could possibly have affected the result. This
    determination requires a weighing of the potential probative value of the fresh
    evidence in the context of the trial evidence and the positions advanced by the
    parties at trial:
Reeve
, at para. 72.

[33]

This also requires a consideration of the trial
    judges reasoning. For example, in
R. v. J.A.A.
, 2011 SCC 17, [2011] 1
    S.C.R. 628, the trial judge commented that the case was a close one. He
    ultimately found the complainant to be credible and disbelieved the accuseds
    testimony. In his credibility discussion, he referenced evidence of an injury
    to the accuseds finger. A police officer had testified and explained why he
    thought the injury was a bite mark. The trial Crown had urged the trial judge
    to accept the officers testimony and argued that it corroborated the
    complainants version of events (that she bit down on the accuseds finger as
    hard as she could). The trial judge mentioned evidence of this finger injury
    twice and clearly regarded it as corroborative. On appeal, the appellant adduced
    compelling evidence that the injury was not a bite mark. In concluding that the
    fresh evidence could reasonably have affected the result, Charron J. stated for
    the majority, at paras. 12-13, that:

It is apparent, and understandable, from the
    trial judges reasons that he looked closely at any item of physical evidence
    that could assist him in determining the credibility issue.



When considered in
    the context of the other evidence at trial and the trial judges reasons as a
    whole, I agree with Winkler C.J.O. that Dr. Woods evidence is sufficiently
    cogent that it could reasonably be expected to have affected the verdict
    (para. 80).

[34]

In
Reeve
, Doherty J.A. commented that
    looking at the closing submissions of the parties is one way to glean the
    potential value of the discredited evidence: at para. 76. The discredited evidence
    in
Reeve
was expert toxicology evidence indicating that the victim
    died within 20 minutes after having his last drink, which contradicted the
    appellants version of events and supported the Crowns theory. Fresh evidence
    tendered suggested that this opinion was incorrect. The discredited evidence
    itself occupied a few seconds in a lengthy trial: at para. 73. However, the
    evidence was unchallenged in cross-examination and the experts credibility was
    not disputed. Because of this, there was a real likelihood that the jury gave
    Mr. Robinsons evidence significant weight: at para. 75. The evidence played
    an important role in the Crowns closing submissions and, if believed, would
    have undermined the appellants credibility and suggested that the murder was
    planned. Thus, although the Crowns case was formidable, the fresh evidence
could be reasonably expected to have affected the result
.

[35]

In summary, the application of the could
    reasonably be expected to have affected test requires
an
    examination of the fresh evidence, the evidence at trial, the submissions of
    the parties, and the role that the discredited evidence played in the reasoning
    process.
In
J.A.A.
and
Reeve
, the fresh evidence
    undermined aspects of the Crowns case. In
J.A.A.
, the discredited
    evidence played an important role in the trial judges reasoning process,
    especially because the trial judge admitted that it was a close case. In
Reeve
,
    it was impossible to know exactly what role the discredited evidence played in
    the jurys reasoning process. However, the evidence was an important component
    to the Crowns case and, given the fact that the evidence was unchallenged on
    cross-examination, there was a real likelihood that the jury gave the
    evidence significant weight.

(ii)

Due Diligence

[36]

The due diligence factor is not a condition precedent
    to the admissibility of fresh evidence on appeal. It only becomes important if
    the fresh evidence meets the first two criteria of admissibility and cogency. It
    is concerned with
the broader integrity of the criminal
    justice system, including the need for finality in the trial process
. It
    asks whether the explanation offered, if any, for the failure to adduce the
    evidence at trial should affect the admissibility of the evidence on appeal. The
    explanation offered or absence of an explanation may result in the fresh
    evidence being excluded despite being otherwise admissible on appeal. It is a
    factor to be taken into account, along with the requirement of cogency, in
    deciding whether the interests of justice warrant admission of the evidence:
Truscott
,
    at para. 93;
C.B.
, at para. 127;
Reeve
, at para. 68.

[37]

Where the fresh evidence was available but not
    tendered at trial for tactical reasons, an additional degree of cogency is
    required before the fresh evidence may be received on appeal:
C.B.
, at
    para. 135. As Watt J.A. explained in
R. v. Manasseri
, 2016 ONCA 703, 132
    O.R. (3d) 401, leave to appeal refused, [2016] S.C.C.A. No. 513, at paras.
    247-48:

We generally hold fresh evidence to a more
    stringent standard of cogency where it was available, but not adduced at trial
    because of a tactical decision by trial counsel.

The rule is
    general, but not unyielding. Due diligence is not a trump card that denies
    entry to all evidence tendered for the first time on appeal that satisfies the
    admissibility and cogency requirements for admission.

[38]

The general rule is less strictly applied in
    criminal law, and, as in
Manasseri
, when the charges are very serious
    as they were in that case: at para. 224.

(c)

Application to the Facts

[39]

There is no dispute as to the admissibility of
    the evidence pursuant to the general rules of evidence. It is relevant to the
    issue of the identity of the assailant, which was the sole issue at trial, and consists
    of an opinion by an expert whose qualifications were accepted at trial.

[40]

As I have already indicated, the fresh evidence
    issue turns on the questions of cogency and, relatedly, due diligence. The
    question of cogency considers whether the fresh evidence is relevant, credible,
    and sufficiently probative such that it could reasonably be expected to have
    affected the result. The fresh evidence is highly relevant and bears on a
    decisive issue at trial, identity. The experts revised opinion is credible. The
    same expert was qualified and testified on the same issue at trial. This was
    not a case, for example, where a witness who was reluctant and uncooperative at
    trial recants his evidence later: see e.g.
Allen
.

[41]

The respondent argues that this was an
    extremely strong case and that the proposed evidence could not reasonably be
    expected to have affected the verdict. With respect, I disagree.

[42]

In considering whether Sgt. Huys revised
    opinion could reasonably be expected to have affected the result, the court
    must examine its broader context, such as the fresh evidence, the evidence at
    trial, the submissions of the parties, and the role that the discredited
    evidence played in the reasoning process:
Reeve
, at paras. 72-76;
J.A.A.
,
    at para. 13.

[43]

In this case, the most important factor bearing
    on whether the fresh evidence could reasonably be expected to have affected the
    result is the trial judges reasons themselves. These reasons were brief, and a
    significant portion focused on the boot print evidence.

[44]

The trial judge readily dismissed the
    appellants evidence. The trial judge found that the appellant was lying when
    he said his hair was straight when the assault took place, and when he said
    that he shaved every day and explained that what appeared to be stubble in surveillance
    photos had been dirt and mud. The complainant had described stubble and said
    that her attacker had hair that was not really curly, but it wasnt, like
    straight. After referring to the appellants drivers licence photo and his
    arrest photo, and the appellants appearance throughout the trial, the trial judge
    noted that he would consider the appellants hair to be curly and had no doubt
    that it was curly on the day of the attack. Regarding the stubble and mud
    explanation, the trial judge stated that, in his opinion, the appellant was
    lying to exonerate himself. He commented that the composite sketch produced
    from the complainants description resembles [the appellant] very closely, but
    not precisely.

[45]

The trial judge then turned to the evidence on
    the photo line-up and the complainants evidence at trial, stating:

Whether the manner
    in which [the complainant] referred to your photo in the July 20, 2016 line-up
    and again in court, amounts to proof of your identity beyond a reasonable
    doubt, I do not need to decide because of the other evidence implicating you.

[46]

He then reviewed just one part of this other
    incriminating evidence, the boot print evidence, relying on Sgt. Huys opinion
    that there was a high degree of association between the left boot from [the
    appellants] car and the boot impression at the scene. He explained that:

Within this method
    of classifying conclusions, high degree of association is the closest
    conclusion to a positive finding that the boot made the impression. I am not
    bound by the classification system  nor am I bound by Officer Huys opinion. However,
    examining the evidence she examined and listening to her testimony I agree with
    her conclusion.
The evidence comes extremely close to
    proving that the left boot from your car made the impression in [the
    complainant]s home.
[Emphasis added.]

[47]

The trial judge then stated that he disbelieved
    the defence evidence in the context of the other evidence, concluded that the
    Crown evidence was overwhelming proof that he attacked the complainant, and found
    him guilty.

[48]

It is not necessary to determine whether the
    trial judges view that the expert opinion came extremely close to proving that
    the left boot made the impression was, as the appellant argues, a
    misapprehension of evidence. The point is that, given the fact that this was
    the only Crown evidence, apart from the identification evidence, that the trial
    judge considered in his reasons, it clearly had significant importance for him.
    The discussion of the boot print evidence amounted to about one third of the
    reasons. In itself, that makes it more difficult to say that Sgt. Huys fresh
    evidence could not reasonably be expected to have affected the verdict.

[49]

Moreover, the trial judges failure to
    scrutinize the other discrepancies and inconsistencies raised by the appellant
    exacerbates this difficulty.

[50]

This is especially true in a case such as this in
    which eyewitness identification plays a significant role. The complainants
    description of her attacker, the composite photo, and her photo line-up
    evidence were reviewed and largely accepted by the trial judge. As this court
    explained in
R. v. Gough
, 2013 ONCA 137, at paras. 35-36, triers of
    fact should treat eyewitness identification evidence with caution:

Being notoriously unreliable, eyewitness
    identification evidence calls for considerable caution by a trier of fact. It
    is generally the reliability, not the credibility, of the eyewitness
    identification that must be established. The danger is an honest but inaccurate
    identification.

The trier of fact
    must take into account the frailties of eyewitness identification in
    considering such issues as whether the suspect was known to the witness, the
    circumstances of the contact during the commission of the crime (including
    whether the opportunity to see the suspect was lengthy or fleeting) and whether
    the circumstances surrounding the opportunity to observe the suspect were
    stressful. [Citations omitted.]

[51]

The trial judge appears to have considered the boot
    print evidence to be so significant that it was not necessary for him to carefully
    scrutinize the other evidence and, in particular, the manner in which the complainant
    had selected the appellants photo from the line-up. He did not review, much
    less critically examine, a great deal of the circumstantial evidence relied on
    by the Crown, including evidence of the appellants whereabouts, before
    concluding that the Crown evidence was overwhelming proof that the appellant
    attacked the complainant. I hasten to add that it is not necessary for a trial
    judge to consider every single item of evidence and explain how they resolved every
    single inconsistency. However, given that the boot print evidence is less
    probative of the appellants identity than Sgt. Huys indicated at trial, the
    rest of the evidence required greater scrutiny than they received in the
    reasons in order to sustain a conviction. There are a number of examples that
    illustrate this point:

·

The appellant submitted at trial, and on appeal,
    that there were flaws in the manner in which the photo line-up was created, and
    in particular, that only a few of the photos were of men with round faces in
    accordance with the complainants description. The trial judge did say that he
    considered the line-up to have been adequate in this regard. However, the
    appellant also argues in this court that the photo line-up took place a number
    of months after the creation of the composite drawing which had been widely
    publicized, raising the possibility that the complainant was comparing the photos
    in the line-up to the composite she had in her mind rather than to the person
    she actually remembered.

·

Several other landscaping companies in the area
    also used red trucks, which were frequently seen on the road the complainant
    lived on. The activity and locations of other red trucks were not investigated
    or ruled out.

·

The complainant said she saw a red truck parked
    on the road, and also thought she had heard a vehicle backing out from her
    driveway after the attack, leaving open the possibility that multiple vehicles were
    present at the time.

·

The appellants evidence was that he always wore
    black shorts to work, while the complainant described her attacker as wearing green
    cargo or khaki shorts.

·

The complainant described her attacker as
    wearing a sweater or hoodie, but the appellants evidence was that he was not
    wearing a sweater that day as it was a hot day. He had also misplaced a sweater
    matching the complainants description the weekend before the incident.

[52]

The respondent may well be right that, had the
    trial judge scrutinized the evidence as the appellant argues that he should
    have, the circumstantial case was so strong that the appellant would have been
    convicted nonetheless. But given the absence of reasons on so many of these
    discrepancies, it is not, in my view, possible to say that the fresh evidence
    could not reasonably be expected to have affected the result.

[53]

The final consideration is that of due diligence.
    Although it is true that the evidence would have been available at trial had
    the defence retained and called Mr. Benton at that point, the appellant did
    provide an explanation. At trial, the appellants counsel was of the view that
    a cross-examination of the Crowns expert would be sufficient to cause the
    expert to concede or change her opinion. Having reviewed the reasons while
    considering an appeal, the appellants appeal counsel decided to obtain another
    expert opinion. That report, which addressed some of the same issues raised by
    trial defence counsel on cross-examination, caused the Crown expert to revise
    her opinion and downgrade the level of similarity between the impression at the
    scene and the boot. In these circumstances, the concern for the broader
    integrity of the criminal justice system, even taking into account the need for
    finality in the trial process, leads me to conclude that there was no failure
    of due diligence to warrant a refusal to admit the fresh evidence: see
C.B.
,
    at paras. 146-47.

[54]

In summary, the admissibility of the revised
    opinion under the operative rules of evidence, its credibility, the emphasis of
    the trial judges reasons on the now-revised boot print evidence combined with
    the absence of sufficient analysis of the rest of the evidence at trial, and
    the explanation for the failure to tender this evidence at trial satisfy the criteria
    for admissibility of fresh evidence and the proposed evidence should be
    admitted.

[55]

Admitting this evidence would not allow this
    court to dispose of the matter on appeal, as it is not so clear and conclusive to
    allow an immediate disposition in the form of an acquittal: see
R. v.
    Stolar
, [1988] 1 S.C.R. 480, at pp. 491-93;
R. v. Hay
, 2013 SCC
    61, [2013] 3 S.C.R. 694, at paras. 76-77. The revised opinion by the Crowns
    expert could, however, have potentially altered the result at trial when considered
    with the other evidence in the case. The result is that a new trial must be
    ordered.

[56]

In light of my conclusion as to the admissibility
    of the fresh evidence, I do not find it necessary to address the other
    arguments advanced on this appeal, including the trial judges conclusion that
    evidence should not be excluded under s. 24(2) of the
Charter
. This
    will be for the trial judge to decide at the new trial if this argument is
    renewed.

D.

Disposition

[57]

The fresh evidence is admitted. The appeal is therefore
    allowed, and a new trial is ordered.

Released: July 16, 2021
J.C.M.

A. Harvison Young J.A.

I agree J.C. MacPherson J.A.

I agree Gary Trotter J.A.


