



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Vickers, 2020 ONCA 275

DATE: 20200430

DOCKET: C54928

Watt, Fairburn and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Marc Vickers

Appellant

Brian H. Greenspan and Naomi M. Lutes,
    for the appellant

Roger Pinnock, for the respondent

Heard: March 13, 2020

On appeal from the conviction entered by
    Justice J. Bryan Shaughnessy of the Superior Court of Justice, sitting with a
    jury, on November 20, 2010.

REASONS FOR DECISION


[1]

Following a jury trial, the appellant was
    convicted of the first degree murder of M.B., his ex-wifes sister, and
    sentenced to life in prison.

[2]

The appellant appeals his conviction. He does
    not allege any error on the part of the trial judge in the conduct of the
    trial. He seeks a new trial based on evidence he asks us to admit on appeal
    under s. 683(1) of the
Criminal Code
,

R.S.C.,
    1985, c. C-46
.

[3]

As we explain in the reasons that follow, we do
    not consider it in the interests of justice to admit the evidence. In the
    result, the appeal fails and is dismissed.

The Background Facts

[4]

A sketch of the relevant background affords an
    adequate frame of reference for an understanding of the single ground of
    appeal.

The Principals

[5]

In early 2007 M.B. and her son, C.B., moved into
    the appellants home in Warkworth. At the time the appellant was married to M.B.s
    sister. However, later that year the couple separated and M.B.s sister left
    the home. M.B. and C.B. remained.

The Deteriorating Relationship

[6]

Over time relations in the home became strained.
    C.B. and M.B. argued about C.B.s truancy and drug use. M.B. did not care for C.B.s
    girlfriend. M.B. and the appellant were at loggerheads over the appellants
    alleged failure to pay his bills and maintain the premises. While tensions ran
    high, there was no suggestion of physical violence in the home.

[7]

In the months before her death, M.B. had voiced
    her concerns to others and had discussed moving out of the appellants home.

The Shooting

[8]

On the night M.B. was killed, the only persons
    present at the home were M.B., C.B. and the appellant.

[9]

M.B. suffered eight gunshot wounds. Any of the
    seven wounds to her head could have been fatal. She was also shot once in the
    upper back. She had blunt impact injuries to her head. A broken bone in her
    right hand and fractured bones in her left forearm occurred when she was still
    alive.

[10]

After the shooting, the appellant and C.B.
    cleaned the house to remove signs of M.B.s death. They buried her body in a
    shallow grave in the backyard, covering it with dirt and debris. The police
    located the body two weeks later, after the appellant and C.B. had been
    interviewed several times by investigators.

The Charges

[11]

Following the investigation, C.B. and the
    appellant were charged with first degree murder. They were charged separately.
    C.B. was 14 years old at the time and was thus subject to the provisions of the
Youth Criminal Justice Act
,

S.C. 2002, c. 1
.


The Trial of C.B.

[12]

C.B.s trial took place first. C.B. testified
    that when he was upstairs at the house, he heard gunshots. He ran downstairs.
    There, he saw his mother lying dead on the floor. The appellant was standing
    there. He had a gun in his hands.

[13]

The jury did not believe C.B.s evidence that
    the appellant was solely responsible for the shooting. C.B. was convicted of
    first degree murder.

The Appellants Trial

[14]

After C.B. was convicted, the appellants trial
    began. As part of its case against the appellant, the Crown introduced
    statements made by the appellant to the police as the investigation proceeded.
    The appellant gave inconsistent accounts, but never acknowledged having killed M.B.
    He admitted having heard some popping sounds coming from inside the house. But
    then he fainted. When he awakened, C.B. was standing over him with a rifle. C.B.
    threatened to blame the appellant and told him to come inside the house. The
    appellant admitted to police that he helped C.B. move and bury M.B.s body and
    dumped the gun, a .22 calibre rifle, into the river.

[15]

At trial, where he was represented by
    experienced counsel, the appellant sought to introduce two statements made by C.B.
    In the first, C.B. admitted to his aunt, M.B.s sister, that he had shot M.B.
    in anger. He explained where he had disposed of the rifle. He made no mention
    of the appellants involvement in the killing. The second account was one C.B.
    gave to a psychiatrist before his sentencing proceedings. C.B. explained that
    he killed his mother during what seemed like a tirade of criticism and abuse.
    The shooting happened too quickly for the appellant to intervene. This
    interview was not recorded, but C.B.s account formed part of the psychiatrists
    notes and was included in his written report.

[16]

The appellant sought to introduce C.B.s
    statements under the traditional exception for declarations against penal
    interest and the principled exception to the hearsay rule.

[17]

The trial judge rejected the application.
[1]
Because C.B. was available to
    testify, the statements were not admissible under the traditional exception for
    declarations against penal interest. Under the principled exception, the
    necessity requirement was not met. C.B. was available to testify and a refusal
    to answer certain questions at the preliminary inquiry did not satisfy the
    necessity requirement. Further, the statements  neither of which was recorded
     were not reliable. They were but two of several conflicting and inconsistent
    statements provided by C.B. since his mothers death.

The Proposed Fresh Evidence

[18]

It is helpful to begin with a brief examination
    of the origins of the proposed fresh evidence.

[19]

About three years after the appellant was
    convicted, his counsel (not counsel on this appeal) wrote to C.B. at his place
    of incarceration. Counsel sought to speak with C.B. about the appellants
    involvement in M.B.s murder. Six months later, counsel reiterated his request
    and invited C.B. to call counsels office to arrange an interview.

[20]

Almost four years after the appellants
    conviction, then appellate counsel met with C.B. at the youth facility where he
    was incarcerated. Counsel asked C.B. several questions about the night of the
    killing. C.B. responded. A law student and legal assistant sat in on the
    interview and took notes. The interview was not audio or video recorded.

[21]

During the interview, C.B. claimed that during
    an argument with M.B., he picked up a .22 calibre rifle from the living room
    and shot her several times. The appellant, C.B. said, did not participate in
    the shooting. The appellant assisted only after the fact  to clean up the
    residence, dispose of the body and attempt to distance them from any
    involvement in M.B.s death.

[22]

Former appellate counsel drafted an affidavit
    for C.B. to sign based on his statements during the interview. Another counsel
    was retained to provide C.B. with independent legal advice.

[23]

Twenty-one months after the interview with C.B.,
    former appellate counsel and the attorney who was to provide independent legal
    advice met with C.B. at a federal minimum security prison. Counsel reviewed the
    draft affidavit with C.B. Apart from some minor clarifications, C.B. said the
    affidavit was true and accurate. The interview was not audio or video recorded.
    C.B. told the lawyers he wanted some further time to consider whether he would
    sign the affidavit.

[24]

About 15 months later, another lawyer from the
    same firm met with C.B. at the same federal correctional facility.. Once again
    counsel reviewed the draft affidavit and C.B., after noting some minor changes,
    repeated his wish for further time.

[25]

C.B. ultimately declined to sign the affidavit.
    Accordingly, the proposed fresh evidence consists of the draft affidavits
    prepared for C.B. as well as affidavits from C.B.s interviewers  two lawyers,
    one legal assistant and one summer student  setting out the contents of those
    interviews
.

The Additional Statements

[26]

It is common ground that at different times, C.B.
    has offered several different versions of the circumstances surrounding M.B.s death.

[27]

In early June 2008, before M.B.s body had been
    found, C.B. told the police M.B. had simply walked out the door and left home
    after he had argued with her. This interview was audio and video recorded.

[28]

On June 12, 2008, after he had been arrested and
    cautioned, C.B. was again interviewed by police. C.B. claimed the appellant had
    told him (C.B.) that he (the appellant) had argued with M.B. who had then left
    the house. This interview was audio and video recorded.

[29]

Later that day C.B. spoke with his aunt, M.B.s
    sister. C.B. said he had argued with M.B. about her intention to move out of the
    house and about the loss of C.B.s girlfriend. C.B. said he shot M.B. who
    screamed and fell to the ground. C.B. shot her again. This discussion was video
    but not audio recorded.

[30]

At his trial, C.B. gave evidence that he was
    upstairs at the house when he heard gunshots. He went downstairs. There he saw
    his mother lying dead on the floor, and the appellant holding a gun.

[31]

After C.B. was convicted, he spoke to a social
    worker in preparation for sentencing. These discussions were not recorded save
    for the notes of the social worker. C.B. told the social worker that he and the
    appellant had had serious discussions about killing M.B. by shooting her. C.B. also
    told the social worker that on the night his mother died, she and the appellant
    had argued. The appellant told C.B. to go outside. While outside, C.B. heard
    gunshots. When he returned to the house, he saw his mother lying dead on the
    floor. The appellant was standing over her with a gun. C.B. helped the
    appellant in the cover-up.

[32]

C.B. also participated in two interviews with a
    psychiatrist for sentencing purposes. On the first occasion, C.B. refused to
    discuss what happened. A few weeks later, C.B. told the psychiatrist that he (C.B.)
    had shot M.B. during what he perceived as a barrage of criticism. The shooting
    was impulsive; C.B. had never contemplated such an act. It happened too quickly
    for the appellant to respond.

[33]

In fall 2018 C.B. applied to the Parole Board of
    Canada for an escorted temporary absence for community service. The Board
    summarized C.B.s description of the shooting in these terms:

You are a 25 year old first time federal
    offender serving a Life sentence for First Degree Murder. In May 2008, your
    mother (the victim) was at home with you and your co-accused when you and the
    victim got into an argument about your attendance at school. You advised that
    you took a pre-loaded firearm and shot her several times, when the rifle
    jammed, you used the stock to beat her. Your co-accused, who you described as
    an uncle fixed the firearm and you then returned and shot her several more
    times. You and your co-accused cleaned up the house and buried the victim in
    what has been described in the file information as a pre-dug grave in the
    backyard. The following day you disposed of a damaged rifle and scope in a
    creek. The victims family reported her missing and the search ensued. The day
    after the murder you attempted to withdraw funds from the victims bank
    account. On June 11, 2008, you attended the police station and provided a
    statement leading officers to attend the creek where they were able to locate
    the weapon and telescope in the creek.

[34]

The Parole Board granted C.B.s request for an escorted
    temporary absence.

The Arguments on Appeal

[35]

The parties do not dispute the applicable legal
    principles. As the party seeking to introduce fresh evidence, the appellant
    must establish on a balance of probabilities that admission of his proposed
    evidence is in the interests of justice. The standard to determine whether the
    evidence should be admitted is set forth in
Palmer v. The Queen
,
    [1981] S.C.R. 759, at p. 775. In
Truscott (Re)
, 2007 ONCA 575, 225
    C.C.C. (3d) 321, at para. 92, this court described the exercise of statutory
    discretion as involving three questions:

·

Is the proposed evidence admissible under the
    rules of evidence applicable in criminal trials? [The
admissibility
requirement]

·

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

·

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

See also
R. v. Snyder
, 2011 ONCA
    445, 273 C.C.C. (3d) 211, at para. 45.

The Position of the Appellant

[36]

The appellant says that the proposed evidence
    satisfies the three requirements essential to permit its introduction. It
    should be admitted, the appeal allowed and a new trial ordered.

[37]

First, admissibility.

[38]

The appellant contends the evidence is
    admissible for three purposes. It is admissible for substantive purposes
    because it satisfies the necessity and reliability criteria of the principled exception
    to the hearsay rule. Necessity is established because C.B. has clearly
    indicated he will not provide an affidavit or answer questions under oath. Reliability
    is established because of the circumstances in which the statements were made
    and recorded. This is especially so because of the relaxed approach adopted in
    respect of hearsay offered by the defence.

[39]

In addition, the proposed evidence should be
    admitted to assist in determining whether the reliability requirement was
    properly determined on the
voir dire
at trial. Finally, the proposed
    evidence would be a valuable impeachment tool were a new trial to be ordered
    and C.B. were to testify in accordance with his testimony at his own trial.

[40]

Second, cogency.

[41]

The appellant says the proposed evidence also
    satisfies the cogency requirement. The evidence is relevant to the central
    issue at trial: the nature of the appellants participation in M.B.s murder.
    The evidence, received by several neutral witnesses, is credible and has
    significant probative value confirmed by the appellants statements admitted at
    trial. Had this evidence been admitted, it would have affected the jurys
    assessment of the appellants statements.

[42]

Third, due diligence.

[43]

The appellant emphasizes that due diligence is
    not a condition precedent that must be satisfied before fresh evidence may be
    received on appeal. In any event, the due diligence requirement is met in this
    case. The evidence did not exist until after the trial. The failure to adduce
    it was not due to some tactical decision by trial counsel. He sought to
    introduce hearsay statements by C.B.  rather than call him as a witness  only
    after C.B. refused to answer questions at the preliminary inquiry.

The Position of the Respondent

[44]

The respondent emphasizes that admitting
    evidence of facts which were litigated at trial is very much the exception to
    the accepted appellate process. This point is especially salient here considering
    that the proposed fresh evidence is an incomplete, unrecorded hearsay account
    which amounts to a recantation of C.B.s only sworn evidence about the killing.

[45]

According to the respondent, the appellant
    cannot satisfy the admissibility requirement through application of the
    principled exception to the hearsay rule. The necessity requirement cannot be
    met simply because C.B. would not answer questions at the preliminary inquiry.
    He was not subpoenaed for trial. A reluctance to testify does not amount to
    necessity.

[46]

Nor can the appellant satisfy the reliability
    requirement. The specific circumstances in which the statement was made provide
    no assurance about its inherent reliability. Reliability is about the declarant
    and the declaration, not about the recipients or their recording of it. The
    proposed evidence is one of many versions of the same events offered by the
    same declarant.

[47]

In addition, the respondent says, the proposed
    evidence falls well short of meeting the cogency requirement. It amounts to
    neither more nor less than a recantation of the only version of relevant events
    C.B. gave under oath: his testimony at his own trial. Extra caution should be
    applied when recantations are tendered for admission on appeal. That caution is
    well warranted in this case where the recantation has itself been undermined by
    yet another statement assigning a participatory role to the appellant.

[48]

The respondent accepts that the due diligence
    requirement has been satisfied.

Discussion

[49]

As we will explain, we are not satisfied that it
    is in the interests of justice to admit the proposed fresh evidence.

The Admissibility Requirement

[50]

To satisfy the admissibility requirement, the
    appellant points to three purposes for which the proposed evidence is
    admissible:

i.

as substantive evidence identifying C.B. as the
    sole killer of M.B.;

ii.

as new evidence demonstrating error in the trial
    judges ruling excluding C.B.s statements about the circumstances of M.B.s
    death; and

iii.

as a means of impeaching the credibility of C.B.
    if he were to testify at a new trial consistently with the evidence he gave at
    his own trial.

[51]

As for the second proposed purpose, we are not
    persuaded that the mere existence of a similar statement made several years
    after those tendered for reception at trial would alter the nature or result of
    the trial judges analysis.

[52]

The third proposed purpose  i.e., as an
    impeachment tool  is too remote to warrant consideration. Inherent in it is
    the assumption that C.B. would testify at a new trial and replicate his
    evidence at his own trial in which he assigned sole responsibility to the
    appellant. Who, we ask rhetorically, would call such a witness?  The appellant
    had the opportunity to call C.B. as a witness at trial. Very experienced trial
    counsel declined to do so. No doubt the unpredictability of anything that C.B.
    might say under oath was a significant factor in trial counsels tactical decision. 
    That unpredictability persists to this day, magnified by more and different
    versions with each presenting opportunity.

[53]

This leaves the first purpose proposed by the
    appellant: admission as substantive evidence supporting his position at trial. He
    rests his case for admissibility on satisfaction of the requirements of
    necessity and reliability under the principled exception to the hearsay rule.

[54]

In our view, the proposed evidence cannot
    satisfy the necessity requirement. The declarant, C.B., is available. He is competent.
    He is compellable. And he is currently in custody serving a sentence of
    imprisonment. First-hand evidence is available.
Reluctance to testify does not establish
    unavailability, much less necessity: see
R. v. F. (W.J.)
, [1999] 3 S.C.R. 569, at para.
    44.


[55]

A proponent who seeks
    introduction of hearsay evidence under the principled approach
may establish reliability by demonstrating on the balance of
    probabilities that there are no real concerns:

i.

about the truth of the statement because of the
    circumstances in which it was made (
substantive
reliability
); or

ii.

about the offer of the statement as hearsay
    because, in the circumstances, its truth and accuracy can nonetheless be
    sufficiently tested by means other than contemporaneous cross-examination (
procedural

reliability).

See
R. v. Bradshaw
, 2017 SCC
    35, [2017] 1 S.C.R. 865, at paras. 23, 27-32. These means may work in tandem:
    elements of both can combine to overcome the specific hearsay dangers a
    statement might present, even where neither procedural nor substantive
    reliability, on its own, would be sufficient to support reception:
Bradshaw
,
    at para. 32.

[56]

Substantive
reliability
    is established if the circumstances in which the statement was made make it
    inherently trustworthy. This is a high standard and requires us to
be satisfied that the statement is so
    reliable that contemporaneous cross-examination of the declarant would add
    little if anything to the process:
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 49;
Bradshaw
, at para. 31.

[57]

In our view the proposed
    evidence cannot meet the standard required to establish substantive
    reliability. The statements were made years after the relevant events they
    describe. They are but one of a series of versions of events, preceded and
    followed by others inconsistent with them, including the only under-oath
    account of the same events. To say that contemporaneous cross-examination would
    add little, if anything, to the process would be to engage in the grossest form
    of understatement.

[58]

We do not doubt the
    credibility of any of the hearsay recipients or their narration of C.B.s
    statements. But this does not assist the appellant. Threshold reliability
    serves as
a
    substitute for cross-examination of the declarant (in this case, C.B.), not the
    narrator: see
R. v. Blackman
, 2008 SCC 37, [2008] 2 S.C.R. 298, at
    paras.
48-50;
R. v. Humaid
(2006), 208 C.C.C. (3d) 43 (Ont. C.A.), at para.
51, leave to appeal refused, [2006]
    S.C.C.A. No. 232. Where the narrator is available for cross-examination at
    trial, issues regarding their credibility can safely be left to the trier of
    fact to consider:
R. v.
    Berry
, 2017 ONCA 17, 345
    C.C.C. (3d) 32
, at para. 50,
    n.2.


[59]

Procedural
reliability requires adequate substitutes
    for the traditional method of testing the evidence through contemporaneous
    cross-examination. As the Supreme Court explained in
Bradshaw
, at para.
    28 (citations omitted):

These substitutes must provide a satisfactory
    basis for the trier of fact to rationally evaluate the truth and accuracy of
    the hearsay statement. Substitutes for traditional safeguards include a video
    recording of the statement, the presence of an oath, and a warning about the
    consequences of lying. However, some form of cross-examination of the
    declarant, such as preliminary inquiry testimony or cross-examination of a
    recanting witness at trial, is usually required.

[60]

In this case, no formal
    statement was taken from the declarant. All we have are two draft affidavits
    neither of which purports to recount the declarants precise words. Neither is
    sworn or even initialed by the declarant. There was no audio or video
    recording. No oath. No warning about the consequences of lying, especially in
    light of the declarants prior sworn testimony assigning exclusive
    responsibility for the killing to the appellant.

[61]

In the result, we are not satisfied that the
    proposed evidence would be admissible under the principled exception to the
    hearsay rule if tendered at trial.

The Cogency Requirement

[62]

The cogency requirement necessitates a
    qualitative assessment of the evidence tendered for reception on appeal. This
    evaluation must measure the probative potential of that evidence in the context
    of the entirety of the evidence admitted on appeal and heard at trial. The
    cogency inquiry asks three questions:

·

Is the evidence relevant in that it bears upon a
    decisive or potentially decisive issue at trial?

·

Is the evidence credible in that it is
    reasonably capable of belief?

·

Is the evidence sufficiently probative that it
    could reasonably, when taken with the other evidence adduced at trial, be
    expected to have affected the result?

See
Truscott
, at paras. 99-100.

[63]

If the
proposed fresh
    evidence, considered in the manner we have described could
reasonably be expected to have changed the
    result at trial, the evidence is sufficiently cogent to justify its admission
    on appeal
, subject to a consideration of the due
    diligence requirement:
Truscott
, at para. 100.

[64]

The proposed evidence is relevant to the central
    issue at trial: whether the appellant killed M.B. But, in our view, it is not
    reasonably capable of belief. It is but one of multiple versions
of the same events provided by the same declarant over more than a
    decade. It is unsupported by any physical evidence and amounts to a recantation
    of his only sworn account of the same events. Finally, it is inconsistent with
    his most recent account provided to the Parole Board of Canada, where he has
    suggested that the appellant fixed the firearm mid-way through the killing of
    his mother.

[65]

The cogency requirement is not met.

Due Diligence

[66]

We also have serious reservations about the due
    diligence criterion. C.B. was available at trial. He was a competent and compellable
    witness. To be certain, his testimony at his own trial incriminated the
    appellant. But contradictory statements were available for impeachment purposes
    were he to maintain that version at trial.

[67]

In addition to the lack of diligence at trial, we are concerned with
    the fact that it has been 12 years since the murder and 10 years since
    conviction. In these circumstances, we are not satisfied that it is in the
    interests of justice to admit the proposed fresh evidence.

Disposition

[68]

The appeal is dismissed.

David Watt J.A.

Fairburn J.A.

B. Zarnett J.A.





[1]

See
R. v. Vickers
,
2010 ONSC 5180.



