



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.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. Garcia, 2018 ONCA 580

DATE: 20180626

DOCKET: C57016

Hourigan, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Luis Cesar Garcia

Appellant

David M. Humphrey and Naomi M. Lutes, for the appellant

Alexander Alvaro, for the respondent

Heard: June 22, 2018

On appeal from the
    conviction entered on January 29, 2013 by Justice Nancy Mossip of the Superior
    Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant was convicted of the sexual
    assault of his patient during a medical examination. He asks us to admit fresh
    evidence on appeal, and submits that there is a strong possibility that the
    verdict would have been different had the jury heard the fresh evidence.

[2]

We agree that the fresh evidence meets the test
    for admissibility. The fresh evidence could reasonably be expected to have
    affected the verdict:
R. v. Truscott
,
2007
    ONCA 575, 225 C.C.C. (3d) 321, at
para. 245. As a result a new
    trial is required.

The evidence at trial

[3]

The complainant A.E attended the appellants
    office for a doctors note demanded by her employer as she had missed work
    because of back pain. Her sister, C.E. went with her to the appointment but
    waited in the reception area.

[4]

The complainant testified that during her
    appointment, the appellant asked her if she would go out with him. She thought
    he was joking, and responded, who wouldnt want to go out with a doctor, and
    hes rich, right? The complainant testified that he hugged her, kissed her
    cheek and neck, touched her breast and unsuccessfully tried to put his hand
    down the front of her pants. She said he rubbed her crotch area and stuck his
    tongue in her mouth. He exposed his genitals and tried to force her body into
    contact with them. When it became clear she was not agreeing to the contact the
    normal medical appointment resumed. He asked her to go dancing with him and she
    agreed. He whispered to her that this was to be their secret.

[5]

The complainants sister C.E. testified that
    A.E. came out of the doctors office a changed person. Before the appointment,
    A.E. was happy and talkative and they were joking around. After the appointment
    A.E. did not seem herself, she did not look right. She seemed nervous and
    spaced out. C.E. testified that A.E.s face was pale and her eyes were watery
    and red, as if she was about to cry. This was unusual as she had not seen her
    sister cry since she was 14 years old. C.E. testified that A.E. then described
    sexual assaults she had suffered in the appellants consulting room and they
    discussed going to the police.

The proposed fresh evidence

[6]

The proposed fresh evidence casts doubt on the
    credibility of both A.E. and C.E.

Roberto Paniagua

[7]

The appellant had been Mr. Paniaguas family
    physician for over 20 years. On December 21, 2010, the date of the alleged
    assault, he was on the roof of his house (located directly behind the medical
    clinic) between 2:00 and 4:00 p.m., cleaning the eavestroughs. During that
    time, he saw two Hispanic girls walking in his direction from the entrance of
    the medical clinic. He overheard that one of the girls was named C. He recalls,
    because his daughter is also named C.

[8]

Mr. Paniagua heard one of the girls say, in a
    mixture of both English and Spanish: Ill say he touched me and you saw me
    crying. The other replied: I dont agree with that. The first girl then
    responded: It doesnt matter. That old guy has money. Hes rich. Mr. Paniagua
    notes that neither girl was crying.
[1]


Olga Mendoza

[9]

The appellant had been Ms. Mendozas family
    physician for over 20 years. On December 21, 2010 she had an appointment with the
    appellant in relation to a shoulder injury she suffered at work. She smoked a
    cigarette in the parking lot while she waited for her appointment. She noticed
    a man fixing the roof of a nearby bungalow.
[2]


Doranid Giraldo

[10]

The appellant had been Ms. Giraldos family physician
    for roughly seven years. On December 21, 2010 she attended the appellants
    office between 1:00 and 1:30 p.m. She recalls two young women, who appeared to
    be sisters, waiting in the reception at the time.

[11]

Ms. Giraldo recalls that one girl saw the doctor,
    while the other stayed behind. When the first girl returned to the reception,
    she signaled to the other to indicate they were leaving, and whispered
    something in her ear. She recalls that they were smiling.
[3]


Esther Cruz Manes

[12]

The appellant had been Ms. Cruz Manes family
    physician for roughly seven years. On December 21, 2010 she had an appointment
    with the appellant. She waited to see him between 1:00 and 3:00 p.m., and
    recalls two young girls who were also waiting. She was called into her appointment
    before the two young girls, and does not recall if they were still waiting when
    she left. After leaving the appellants office, she went to the pharmacy.
    Sometime after 3:00 p.m. she took the bus home. She recalls seeing the same
    young girls she had seen at Dr. Garcias office. As they walked by her, she
    overheard them say, in a mixture of both English and Spanish, something to the
    effect of: Help me finish the plan. Its a good deal. Neither girl was angry
    or crying.
[4]


How did the fresh evidence come to light?

[13]

Counsel for the appellant retained a private
    investigation firm to conduct interviews with the above-mentioned individuals
    to obtain character evidence for the sentencing hearing. Those interviews were
    conducted between March and April 2013. Between September and October 2014, all
    four witnesses swore affidavits. Between May and August 2017, all four
    witnesses were cross examined by Crown counsel.
[5]


The test for admission of fresh evidence

[14]

Section 683 (1) allows this court to admit fresh
    evidence where it is in the interests of justice.

[15]

Admission
of the proposed evidence
    is controlled by the principles articulated in
Palmer v. The Queen
,
    [1980] 1 S.C.R. 759, and in
Truscott
.

[16]

The
Palmer
criteria are as follows:

1.

The evidence should generally not be admitted if, by due diligence, it
    could have been adduced at trial provided that this general principle will not
    be applied as strictly in a criminal case as in civil cases.

2.

The evidence must be relevant in the sense that it bears upon a decisive
    or potentially decisive issue in the trial.

3.

The evidence must be credible in the sense that it is reasonably capable
    of belief, and

4.

It must be such that if believed it could reasonably, when taken with
    the other evidence adduced at trial, be expected to have affected the result.
    [Citations omitted].
[6]

[17]

The
    criteria embrace three components: admissibility under the governing rules of
    evidence; cogency and whether the proposed evidence bears upon a decisive or
    potentially decisive issue at trial, is reasonably capable of belief, and could
    reasonably be expected to have affected the verdict at trial; and due
    diligence.
[7]
The first two
     admissibility and cogency  are preconditions to the admissibility of the
    fresh evidence on appeal. On the other hand, due diligence is not a condition
    precedent to admissibility, and assumes importance only when the other
    components have been met. 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.
[8]
The
    explanation offered for the failure to adduce evidence at trial, or in some
    cases the absence of any explanation, can result in the exclusion of evidence
    that would otherwise be admissible on appeal.
[9]

[18]

The
    Crown opposes the admission of the fresh evidence on the ground that it is not
    capable of belief and because it could have been tendered at trial with the
    exercise of reasonable diligence.

[19]

The
    Crown points out that the witnesses wrote letters outlining their recollection
    some 26 months after the events and agreed there was nothing remarkable about
    the events they described seeing. They had all known the appellant from
    previous contacts, some as patients. Their affidavits were sworn some 45 months
    after the alleged events. The Crown suggests that there was a hint of collusion
    surrounding the gathering of this evidence and argues that there are
    inconsistencies amongst the fresh evidence witnesses as to locations where the
    two women were seen.

[20]

The
    Crown says there is good reason to believe the testimony of these witnesses is
    a wholesale concoction personally orchestrated by the appellant.

[21]

We
    do not agree. Here four independent citizens, with no criminal records and with
    no connections to the offence, have sworn affidavits attesting to what they saw.
    They did not waver under cross examination by the Crown. It strains credulity
    to believe that these individuals would swear false affidavits and obstruct
    justice to support an individual with whom they were not closely connected. This
    is not evidence from a participant in the crime, or from recanting witnesses
    who have changed their evidence many times:
R. v. Kassa,
2010 ONCA 140
; R v. Allen
, 2018
    ONCA 498.

Due diligence

[22]

Trial
    counsel was discharged after conviction but before sentencing. The fresh
    evidence came to light as new counsel sought character evidence for sentencing
    purposes. The fresh evidence could have been introduced at trial if trial
    counsel had been aware of it. The failure to adduce this evidence did not arise
    from a tactical decision. The failure to discover this evidence and adduce it
    at trial does not outweigh the impact of the potentially significant probative
    value of this evidence. This prosecution depended heavily on the jurys
    assessment of A.E.s and C.E.s credibility.

Conclusion

[23]

We
    recognize that the need for finality means that fresh evidence is not often
    admitted on appeal. As Watt J.A. noted in
Allen
, at para. 90: [a]dmitting
    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.

[24]

This
    is one of those cases. The proposed fresh evidence is reasonably capable of
    belief, bears on a decisive issue at trial, and when considered with the other
    evidence at trial could be expected to have affect the verdict. The interests
    of justice require a new trial where the credibility of all of the evidence can
    be assessed, and we so order.

[25]

The
    fresh evidence is admitted, the conviction is quashed and a new trial is
    ordered.

C.W. Hourigan J.A.

G. Pardu J.A.

I.V.B. Nordheimer J.A.





[1]

Fresh Evidence Application Record, Tab 3  Affidavit of
Roberto Paniagua
, at paras. 2, and 9-16.



[2]

Fresh Evidence Application Record, Tab 6  Affidavit of
Olga Mendoza
, at paras. 3, and 9-10.



[3]

Fresh Evidence Application Record, Tab 4  Affidavit of
Doranid Giraldo
, at paras. 3, and 9-14.



[4]

Fresh Evidence Application Record, Tab 5  Affidavit of
Esther Cruz Manes
, at paras. 3, and 9-19.



[5]

Fresh Evidence Application Record, Tab 2  Affidavit of Sandra
    Gidari, at paras. 8-14.



[6]

Palmer v. The Queen
, [1980] 1 S.C.R. 759, at para. 22.



[7]

R. v. Allen,
2018 ONCA 498, at paras. 92, 94;
R. v. Truscott
,
    2007 ONCA 575, 225 C.C.C. (3d) 321, at paras. 92, 99.



[8]

R. v. Allen,
2018 ONCA 498, at paras. 92-93.



[9]

R. v. Truscott
, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 93.


