COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dudar, 2019 ONCA 115

DATE: 20190219

DOCKET: C62044

Pepall, Lauwers & Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yuriy Dudar

Appellant

Boris Bytensky, for the appellant

Christopher Webb, for the respondent

Heard: September 20, 2018

On appeal from the conviction entered by Justice Joseph
    M. Fragomeni of the Superior Court of Justice, sitting with a jury, on December
    2, 2015.

Pepall J.A.:

Introduction

[1]

On December 2, 2015, the appellant was convicted of impaired driving
    causing bodily harm and of operating a motor vehicle with excess alcohol
    causing bodily harm. He appeals from his convictions and seeks leave to
    introduce fresh evidence.

[2]

The convictions arose from a multi-vehicle accident that occurred on
    Dixie Road in Mississauga on October 19, 2013, at approximately 6:20 p.m. At
    trial, the Crown alleged that the appellant was driving the white van that
    caused the accident, and was impaired while doing so. The appellants breath
    samples registered 296 and 279 milligrams of alcohol in 100 millilitres of
    blood, approximately 3.5 times the legal limit.

[3]

At the commencement of the argument on appeal, appellants counsel
    advised that he was no longer pursuing his assertion that the appellant had a
    free-standing right to an adequate investigation. Rather, the appellant submits
    that the inconsistencies in the evidence on the identification of the driver of
    the van, together with the absence of a thorough police investigation, rendered
    the verdict unreasonable.

[4]

The appellant also seeks leave to introduce fresh evidence pertaining to
    the identity of the driver of the white van. The proposed fresh evidence
    includes an affidavit of a witness, Yuriy Teodorovych, who situates the
    appellant in an intoxicated state in the passenger seat of the van which Mr. Teodorovych
    says was driven by another man shortly before, and in the vicinity of, the
    accident. The appellant submits that the fresh evidence suggests that it was his
    former co-worker Volodya who drove the van and caused the accident rather
    than the appellant.

[5]

For the reasons that follow, I would dismiss the motion to admit the fresh
    evidence and the appeal.

Background Facts

[6]

Identification of the driver of the white van is the primary issue on
    this appeal.

[7]

I will first address the identification evidence given by the witnesses
    at the scene of the accident followed by the observations made by the police
    who arrived within six minutes of the accident. I will then discuss the issue
    of the fresh evidence. Lastly, I will address the unreasonable verdict ground
    of appeal.

Evidence at Trial

[8]

It was a dark and cloudy evening on October 19, 2013. A multi-vehicle
    accident was about to ensue. A white van bearing a Drain City Plumbing logo drove
    into the rear of a black Nissan Altima, driven by Grazyna Linder. The Nissan Altima
    hit a stationary Dodge Durango driven by Piedad Tello. The Dodge Durango hit a
    Toyota Corolla driven by Milanka Milosevic that was stopped at a red light in
    front of the Dodge Durango.

(a)

Grzegorz Linder

[9]

Grzegorz Linder was in the passenger seat of his Nissan Altima. He
    described his car as being completely smashed and pushed in like a harmonica. He
    stated that the bumper of the white van was basically inside of our trunk. He
    saw a white male get out of the drivers side of the white van. He described the
    man as bald, wearing a jacket and a hat. Mr. Linder stated that he looked at the
    mans eyes and expression and it looked like he was intoxicated. Mr. Linder
    asked him whether he was drunk. The man responded that everything was going to
    be okay.

(b)

Piedad Tello

[10]

After
    the collision, Piedad Tello, the driver of the Dodge Durango, got out of her
    car. She stated that after the accident, a chubby white man got out of the
    drivers seat of the van, kicked the Nissan Altima and then went back and sat
    in the drivers seat of the van. She described him as appearing mad, upset and
    swearing. Ms. Tello further observed that he was maybe 160 centimetres (5
    feet 3 inches) tall. He was wearing a vest that she believed to be red and in
    cross-examination, she acknowledged that it was likely a red hoodie. She was
    two to three metres away from the van when making these observations.

[11]

When
    the police arrived, the driver was inside the van and she then saw him get out
    again. She observed the police talking on the drivers side of the van. The man
    left with two police officers.

(c)

Milanka Milosevic

[12]

Milanka
    Milosevic, the driver of the Toyota Corolla, testified that she did not see the
    accident but she described the driver of the van as being a white man. She
    could not describe his height but said he wasnt as tall. She was not paying
    attention to him. She saw two police officers taking him away from the drivers
    side of the van.

[13]

In
    court, none of these three witnesses were asked to identify the appellant as
    the driver of the van. The appellant did not testify at trial.

(d)

Police Witnesses

[14]

Officer
    Nick Carrol, a member of the Peel Regional Police, arrived at the scene of the
    accident at 6:26 p.m. He approached the appellant, who was smoking a cigarette
    and leaning against the drivers side of the van with the drivers door open.
    He was wearing reflective orange construction colors with a yellow X on the
    chest and a jacket or a vest. He had bloodshot blue eyes. Officer Carrol
    detected a strong odour of alcohol on his breath.

[15]

Officer
    Osama Naqvi also attended at the scene. He arrived at 6:30 p.m. He identified a
    white male wearing an orange reflective jacket or a vest bearing a Drain City
    Plumbing logo. He stated that the driver was six feet tall, of a heavier build,
    balding on top with hair on the side and a little bit scruffy. Officer Naqvi
    detected a very strong smell of alcohol on the drivers breath. His face was
    flushed and he was squinting and had trouble standing.

[16]

The
    police obtained the appellants drivers licence which described his date of
    birth as June 24, 1986 and contained his photograph. In court, both Officer Carrol
    and Officer Naqvi identified the appellant as the driver of the white van. They
    had no recollection of asking to see evidence of the ownership of or insurance
    for the van at the scene. Neither officer interviewed or recorded the names of
    anyone else at the scene and could not recall whether the appellant had the
    keys to the van.

[17]

The
    appellant was arrested at 6:36 p.m. The police and the appellant arrived at the
    police station at 6:45 p.m. At the station, the appellant was visibly
    intoxicated and falling over. Some of his words were slurred. He needed help to
    go to the bathroom and hit his head against the wall and also fell off of a
    bench in the booking area. The breath technician estimated that on a
    drunkenness scale of one to ten, he was a nine or nine and a half.

[18]

The
    appellant was tried before a judge and jury. He was convicted on December 2,
    2015.

Fresh Evidence

(a)

The Evidence

[19]

Before
    this court, the appellant seeks leave to admit fresh evidence. It consists of
    affidavits from the appellant, Yuriy Teodorovych, and Rita Levin, one of the
    appellants counsel at trial.

[20]

In
    his affidavit, the appellant states that he has no recollection of the accident
    and cannot say whether he was the driver or the passenger. He states that he
    did not testify at trial because he could not remember being in the vehicle. He
    says that he would not have chosen to drive a motor vehicle in that state of
    intoxication.

[21]

He
    recalled that earlier on the day of the accident, he had worked with another
    employee named Volodya. He does not know his last name. He knew Volodya to
    occasionally work on short-term projects for Drain City.

[22]

The
    appellant states in his affidavit that after finishing work on the day in
    question, he returned to Volodyas residence and he recalled drinking there
    with Volodya. He recalls that Volodyas roommate, a man named Roman, was
    present at the time. He had no recollection of leaving the residence.

[23]

In
    his affidavit, Mr. Teodorovych states that at the beginning of October 2013, he
    was looking for a job. It was suggested to him that he should approach the
    appellant, who was employed as a supervisor at Drain City. He does not say who
    made this suggestion. They met sometime around October 17-18 and the appellant promised
    Mr. Teodorovych that he would have a word with his manager regarding employment
    for Mr. Teodorovych. The appellant told Mr. Teodorovych to meet that Saturday
    evening at about 6:00 p.m. at a particular location in Mississauga.

[24]

Mr.
    Teodorovych states that he came to the indicated address in the area of
    Eglinton Avenue East and Delaware Drive in Mississauga and stood by the vehicle
    bearing the sign Drain City. He observed two men exiting a house and dragging
    the appellant to a vehicle. He stated that the appellant was unable to walk on
    his own. The men said that the appellant was drunk and they asked Mr. Teodorovych
    to help them get the appellant into the vehicle. Mr. Teodorovych then assisted
    them in placing the appellant in the passenger seat of the vehicle. They
    suggested to Mr. Teodorovych that he approach the appellant about a job on
    Monday. One of the men got behind the steering wheel and drove away with the
    appellant in the passenger seat. The other man returned to the house. When Mr. Teodorovych
    attempted to find the appellant the following Monday, he was told that the
    appellant no longer worked for Drain City.

[25]

He
    states that three years later, in October 2016, he incidentally met the appellant
    in a store for the first time since the incident. He asked the appellant why he
    had left Drain City and the appellant told him about the accident. He recounted
    that he did not remember anything about the accident and Mr. Teodorovych
    responded with his recollection. Mr. Teodorovych stated that it was not the
    appellant behind the wheel but another man whom he described as being bulky, of
    low height, and dressed in a burgundy sweater or sport top and a cap. According
    to the appellant, Mr. Teodorovychs description of the man was consistent with
    that of Volodya.

[26]

In
    her affidavit, Ms. Levin confirmed that throughout her retainer as counsel, the
    appellant had advised that he had no memory of the accident or of being in the
    vehicle leading up to the accident, apparently due to his excessive alcohol
    consumption. Furthermore, she had no knowledge of Mr. Teodorovych and had she
    known of his proposed evidence, she would have taken all necessary steps to
    call that evidence at trial.

[27]

The
    Crown cross-examined Mr. Teodorovych and the appellant on their evidence. Key
    features of their evidence consist of the following:

Mr. Teodorovych:

·

Mr. Teodorovych testified that, on the day of the accident, he
    observed the appellant coming out of either the second or third building
    across the street from where they were supposed to meet. If he were to return
    to the area, he would not have difficulties in showing approximately which
    house.

·

He described the man he saw driving the van on the day of the
    accident as short, like, chubby or whatever, like overweight, and dressed in
    the burgundy sweater and in the sweatshirt. He indicated that he provided that
    description to the appellant when they met three years after the incident
    before the appellant even told him he had been charged.

·

He stated that he did not like the man he saw driving the van
    because he was rude, swearing and slamming the door. Mr. Teodorovych did not
    mention this in his statement attached to his affidavit because he did not see
    the point of doing so.

·

He did not recall the exact sequence of events on the day of the
    accident. For example, he did not remember whether he asked the two men about
    the job when he first approached them or once they were near the van.

·

He could not recall whether he had asked any of his acquaintances
    about the appellant in the three years after the accident.

The appellant
:

·

The appellant stated that he did not know Volodyas last name and
    he did not know him personally at all. Volodya was an occasional worker at
    Drain City the week before the accident and they never worked together after
    because the appellant stopped working for the company. The only time the
    appellant and Volodya worked together was in the week preceding the accident. The
    appellant had picked Volodya up and dropped him off at a plaza across from
    Volodyas house every day that week but only went inside his house one time.

·

The appellant stated that he did not contact Drain City or his
    former boss to find out more information about Volodya. He was not in a good
    relationship with Drain City because the company owed him money and because he
    had been fired.

·

He stated that Volodyas house was across the street from the
    plaza where he was supposed to meet Mr. Teodorovych. He returned to the area a
    few times and went to one of the houses to try to find Volodya, but he was not
    there. The appellant did not ask any of the neighbours if they knew who Volodya
    was.

·

The appellant testified that he had not asked anybody in the
    plumbing and drain fixing community about who Volodya is because nobody knows
    him.

·

The appellant initially stated that he told the insurance company
    that he had been framed by Volodya. However, he later testified that he had
    only told the insurance company that he was working with Volodya, not that
    Volodya may have been the driver.

(b)

Criteria for
    Admission of Fresh Evidence

[28]

Fresh
    evidence is admissible on appeal where it is in the interests of justice to
    receive it:
Criminal Code
, R.S.C. 1985, c. C-46, ss. 683(1)(c) and (d).
    Before this court, the appellant is seeking a new trial. As I will discuss, in
    admitting fresh evidence, we must be satisfied that the appellant has met the
    burden of persuading us that the finality of his conviction should be overtaken
    to allow for a new trial. The burden of establishing the criteria for admission
    of the fresh evidence lies on the appellant:
R. v. D.J.B.
, 2018 ONCA 566, at para. 25;
R. v. Abbey
,
    2017 ONCA 640, 140 O.R. (3d) 40, at para. 43.

[29]

The
    decision to admit fresh evidence is a discretionary one:
R. v. Palmer
,
    [1980] 1 S.C.R. 759, at p. 775;
R. v. Nissan
(1996), 89 O.A.C. 389
    (C.A.), at para. 8.  In
R. v. Truscott
, 2007 ONCA 575, 225 C.C.C. (3d)
    321, at para. 92,
Palmer
s four components were recast into a
    three-part inquiry:

·

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

·

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

·

What is the explanation offered for the failure to adduce the
    evidence at trial and should that explanation affect the admissibility of the
    evidence (the due diligence component)?

[30]

In
    this appeal, there is no real issue relating to the appellants ability to
    satisfy the admissibility or the due diligence components. The evidence of Mr. Teodorovych
    clearly would have been admissible at trial. The explanation offered by the
    appellant for his failure to adduce the fresh evidence at trial was that he was
    intoxicated and had no recollection of the events surrounding the accident including
    the purported presence of Mr. Teodorovych. This absence of recall responds to
    the due diligence component. The analysis therefore turns on the cogency
    component.

[31]

The
    cogency component requires a qualitative assessment of the evidence to
    determine whether it could reasonably be expected to have changed the result
    at trial when considered in the context of the entirety of the evidence
    admitted at trial and on appeal:
Truscott
, at para. 100; see also
R.
    v.

Manasseri
, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 213,
    leave to appeal refused, [2016] S.C.C.A. No 513. Assessing the cogency of the
    evidence requires the court to identify the purpose or purposes for which it is
    admissible:
R. v. Snyder
, 2011 ONCA 445, 273 C.C.C. (3d)
    211, at para. 51:
R. v.

Allen
, 2018 ONCA
    498,

at para. 96. In
Truscott
, at para. 99, the court explained that the cogency component addresses
    three questions: (i) the relevance of the evidence to a decisive or potentially
    decisive issue at trial; (ii) whether the evidence is reasonably capable of
    belief; and (iii) whether the evidence is sufficiently probative that it could
    reasonably be expected to have affected the result.

[32]

First,
is the
evidence relevant in that it bears upon a decisive
    or potentially decisive issue at trial:
Truscott
, at para. 99. This is
    a straightforward inquiry and does not require further elaboration.

[33]

Second, is the evidence credible in the sense of being reasonably
    capable of belief:
Truscott
, at para. 99.

The purpose of this second inquiry is not to
    determine the ultimate credibility of the evidence, but rather to assess
    whether the evidence is sufficiently cogent to warrant admission on appeal:
Snyder
, at para. 50.

[34]

For example, the cogency of fresh evidence sometimes arises in the
    context of post-conviction recantations.

Given the ease
    with which recantations may be fabricated, an especially rigorous qualitative
    assessment is required:
R. v. M.G.T.
, 2017 ONCA 736, 357 C.C.C. (3d)
    109, at para. 110. This searching assessment of the credibility of a post-conviction
    recantation is necessary to give substance to the cogency requirement and may
    lead the court to conclude that the proposed recantation evidence is not sufficiently
    credible and therefore cogent to warrant its admission:
M.G.T.
, at
    para. 111.

[35]

In
    addition to cases of post-conviction recantations,
this court has
    also rejected fresh evidence based on cogency in other contexts. For example,
    in
R. v. M.M.
(2002), 163 O.A.C. 46 (C.A.), the
    appellants pleaded guilty to various offences after they left their children in
    the care of their ten-year-old child and their six-month-old infant died. On
    appeal, they sought to admit fresh evidence describing how they had actually
    entrusted the care of their children to an adult. In rejecting the evidence,
    the court observed that this new evidence was contradicted by other evidence,
    conflicted with the appellants position advanced at trial, and reflected the
    appellants ease with changing their evidence to suit their purpose.

[36]

In
R. v. Winmill
(1999), 42 O.R. (3d) 582 (C.A.), this court again
    dismissed a fresh evidence application in part because it found that the
    proposed fresh evidence was not reasonably capable of belief. In that case, the
    appellant was convicted of first degree murder based on the evidence of three
    unsavoury witnesses, including the appellants son. On appeal, the appellant
    sought to admit the fresh evidence of a friend who did not testify at trial but
    who claimed that the appellants son, who had been present at the murder, had
    called the friend many times after the appellants arrest and told her the
    appellant had not committed the crime. Osborne J.A. noted, at p. 602, that he
    only needed to determine whether the fresh evidence was reasonably capable of
    belief, not whether he believed it:

In the determination of whether the tendered fresh evidence is
    reasonably capable of belief, we are required to engage in a form of
    credibility assessment. We must determine, not whether we believe the fresh
    evidence, rather, we must determine whether the fresh evidence is reasonably
    capable of belief. This was the determining factor in the decision to reject
    the fresh evidence in
Palmer
, supra. In
Palmer
, McIntyre J.
    made it clear that if the proposed fresh evidence does not pass the reasonably
    capable of belief test, that ends the matter. In my opinion, when exposed to
    the required scrutiny, Ms. Bacon's fresh evidence is not reasonably capable of
    belief.

[37]

Turning then to the third and last question in the cogency analysis,
    the court must ask whether the fresh evidence is
sufficiently probative
    that it could reasonably, when taken with the other evidence adduced at trial,
    be expected to have affected the result:
Truscott
, at para. 99.
    Evidence
is not necessarily admissible simply because it has some
    potential relevance on a material issue:
Snyder
,
    at para. 50;

R. v. Shafia
,
    2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 176, leave to appeal refused,
    [2017] S.C.C.A. No. 17. In
R. v. Lévesque
, 2000
    SCC 47,

[2000] 2 S.C.R. 487, at para.
    24, the Supreme Court explained:

To be admissible, it is not sufficient that the
    fresh evidence meet the prerequisite of relevance. It must also be credible and
such that it could, when taken with the other evidence adduced at trial, be
    expected to have affected the result
. Accordingly, the probative value of
    the fresh evidence must, to some degree, be reviewed by a court of appeal when
    it is determining the admissibility of the fresh evidence. The question to be
    considered was expressed as follows by McIntyre J. in
Palmer
,

supra
, at pp. 776‑77:

If presented to the trier of fact and
    believed, would the [fresh] evidence possess such
strength or probative
    force
that it might, taken with the other evidence adduced, have affected
    the result? [Emphasis added.]

See also
McMartin
    v. The Queen
, [1964] S.C.R. 484, at 491, and
R.
    v. Stolar
, [1988] 1 S.C.R. 480, at pp. 491-92. The
    assessment of the probative value of the fresh evidence is, however, limited,
    since after determining that the evidence is credible, the court of appeal must
    assume that the trial judge would have believed it.

[Emphasis in original.]

[38]

For example, in
R. v.
Plein
, 2018
    ONCA 748, Paciocco J.A. rejected fresh evidence from a clinical psychologist
    who purported to opine on the appellants cognitive abilities and
    neuropsychological condition, and therefore on the issue of his capacity to
    commit the offences for which he was convicted. Paciocco J.A. held that the
    psychologists opinions about the appellants capacity were so bereft of
    probative value that they could not reasonably have affected the capacity
    finding: at para. 65.

[39]

In summary, the cogency analysis under
Truscott
requires the court to consider whether the fresh evidence is relevant,
    credible and sufficiently probative that it could reasonably be expected to
    have affected the result at trial.

[40]

Ultimately, the interests of justice govern whether fresh evidence is
    admissible on appeal. Importantly, while the interests of justice to be
    considered include the interests of the accused, s. 683(1) of the
Criminal
    Code
also embraces broader interests, including the
    preservation of the integrity of the trial process and the finality of trial
    verdicts: see
R. v. Dooley
, 2009 ONCA 910, 249
    C.C.C. (3d) 449, at para. 106, leave to appeal refused, [2010] S.C.C.A. No.
    179. Reflective of this interest, admission of fresh evidence of facts that
    were litigated at trial is exceptional:
R. v. P.G.
, 2013 ONCA 520, 301 C.C.C. (3d) 81, at para. 41;
R. v. T.S.
, 2012 ONCA 289, 284 C.C.C. (3d) 394, at para. 122. Admission of such
    evidence is justified only in furtherance of the integrity of the process:
P.G.
,
at para. 41.

[41]

Although there is an important interest in ensuring that unreliable
    verdicts are not allowed to stand, there is also a compelling interest in
    ensuring that the appellate process is not routinely used to re-write the trial
    record:
Allen
, at para. 90;
P.G.
,
at para. 40. As Doherty J.A. observed in
Snyder
, at para. 44:

While it cannot be gainsaid that those interests
    are not served by maintaining verdicts that are shown to be unreliable through
    fresh evidence, those interests are also not served if the appellate process is
    routinely used to re-write the evidentiary trial record, often years after the
    trial. Admitting fresh evidence on appeal of necessity undermines legitimate
    finality expectations. That negative consequence is justified only if the
    overall integrity of the process is furthered. Admitting evidence on appeal of
    facts that were litigated at trial is very much the exception to the accepted
    appellate process:
R. v. M. (P.S.)
(1992), 77
    C.C.C. (3d) 402 at p. 411 (Ont. C.A.).

[42]

As mentioned, the onus is on the party seeking to admit the evidence to
    establish that it should be received on appeal. The inquiry is necessarily
    context-sensitive and requires consideration of the totality of the
    circumstances:
Truscott
, at para. 81.

(c)

Application of Criteria for Admission

[43]

I now turn to the application of the test for admission of the fresh
    evidence to the facts of this case.

[44]

I have already discussed and concluded that the admissibility and due
    diligence components are met and that the analysis therefore turns on the
    cogency component. As mentioned, this requires a qualitative assessment of
    the proposed fresh evidence in the context of the entirety of the evidence at
    trial and on appeal.

[45]

The Crown concedes the first element in the cogency analysis: the fresh
    evidence is relevant because it bears on the central issue at trial, namely the
    identity of the driver who caused the accident. The appellant clearly meets the
    first element of the cogency analysis.

[46]

The real question is whether the second and third elements are met. In
    my view, they are not.

[47]

As discussed, to be admissible, the fresh evidence must be credible in
    the sense of being reasonably capable of belief. Although this is not an
    exercise in determining whether the evidence is ultimately credible, this court
    must assess whether the evidence is sufficiently cogent to warrant admission on
    appeal.

[48]

The appellant acknowledges that his story is somewhat unusual. Indeed
    it is. I accept that Mr. Teodorovych may be characterized as an independent
    witness and that his evidence is under oath. However, the appellants failure
    to make reasonable efforts to ascertain Volodyas identity to support the
    allegation that he caused the accident, the numerous inconsistencies in the
    fresh evidence, and the highly improbable nature of the appellants recent
    account of what occurred all belie the submission that the fresh evidence is
    reasonably capable of belief.

[49]

The appellants efforts to ascertain Volodyas identity are seriously
    wanting. He never contacted his former boss at Drain City to ascertain
    Volodyas surname. He made no inquiries of Volodyas identity in the plumbing
    and drain industry where he had contacts. Indeed, on cross-examination, the
    appellant admitted that he never bothered to ask anybody who Volodya is. Although
    he went to one of the houses that looked similar to Volodyas, he did not ask
    any of the neighbours if Volodya was around, nor did he return to the area with
    Mr. Teodorovych (who indicated that he would not have difficulties in
    pointing out approximately from which house he observed the appellant leaving).

[50]

When arguing to disturb the finality of a conviction, an appellant
    bears the onus to establish that the fresh evidence ought to be admitted and is
    expected to take reasonable steps to satisfy the court of the cogency
    component. Here, apart from offering up Mr. Teodorovychs evidence, the
    appellant did nothing to lend support to his competing theory of the case. In a
    context-sensitive inquiry, this is a factor to be considered. The cogency
    component is weakened by the absence of any additional factual foundation.

[51]

Furthermore, inconsistencies in the fresh evidence also undermine the
    credibility of the appellant. When cross-examined, the appellant initially claimed
    that he told his insurance company that he had been framed by a man who left
    him at the scene of the accident, that the man was named Volodya and that he
    had worked with Volodya at Drain City. Of course, that claim was inconsistent
    with the claim that the appellant recalls nothing of the events surrounding the
    accident.  In re-examination, he resiled from that description, suggesting
    instead that he only told the insurance company that he had been working with
    Volodya on the day of the accident and that he had not told anyone, other than
    in the fresh evidence application, that he was blaming Volodya for the
    accident.

[52]

Mr. Teodorovychs description of the sequence of events changed. He
    explained during cross-examination that he had not intended to set out the
    events as they unfolded in his affidavit but rather to capture more generally
    what had occurred. There were also inconsistencies between the evidence of the
    appellant and that of Mr. Teodorovych. For example, the appellant stated that
    he told Mr. Teodorovych to meet him at the plaza near Volodyas house to speak
    with his boss. The boss was supposed to be meeting the appellant there to pick
    up payments from the job they had just finished and to pay Volodya. When the
    boss did not show up at the time he was expected, the appellant and Volodya
    went to Volodyas house where the appellant estimated, based on his memory,
    that they spent more than an hour drinking and killing time.

[53]

In contrast, according to Mr. Teodorovych, he was not told that he
    would be able to meet the boss that evening. Moreover, Mr. Teodorovych also
    stated that the appellant told him to meet at the plaza at 6:00 p.m. and wait
    near the Drain City van. No explanation was given for why the appellant would
    have told Mr. Teodorvych to meet at 6:00 p.m. if, according to the appellant,
    his boss was supposed to meet him and Volodya much earlier.

[54]

Furthermore, the highly improbable nature of the appellants fresh
    account stretches the reasonably capable of belief standard beyond its permissible
    bounds. Notably, no witness saw any other person in or around the van at the time
    of the accident. The witnesses all identified the driver as the man taken away
    by the police, who was uncontrovertibly the appellant.

[55]

The inconsistencies coupled with the improbable nature of the new
    account and the lack of any diligent effort to ascertain Volodyas identity to
    bolster the claim that he was the driver serve to support the conclusion that
    the fresh evidence is not reasonably capable of belief. As such, the appellant
    has been unable to meet the second element of the cogency component.

[56]

The fresh evidence also is not sufficiently probative; it could not reasonably,
    when taken with the other evidence adduced at trial, be expected to have
    affected the result. Accordingly, the third element is not met either.

[57]

I have already touched upon the incredible nature of the evidence, and
    the other substantial evidence at trial that pointed to the appellants guilt. Moreover,
    even if Mr. Teodorovychs evidence is believed, it does not foreclose the
    appellant being the driver at the time of the accident. Importantly, Mr.
    Teodorovych indicated that the driver of the van did not look drunk, whereas at
    the scene numerous witnesses testified that the driver of the van appeared to
    be intoxicated. This was borne out by the appellants subsequent breath
    samples. The location of Volodyas house and the accident also differed. Taken
    with the other evidence given at trial, the fresh evidence is not sufficiently
    probative to be expected to have affected the convictions.

[58]

In summary, although the fresh evidence meets the admissibility and due
    diligence components, it fails to meet the cogency component described in
Truscott
. The cogency component is not met because the evidence is not
    reasonably capable of belief and is also not sufficiently probative that it
    could reasonably, when taken with the other evidence adduced at trial, be
    expected to have affected the result. At its heart, considering the totality of
    the circumstances, the interests of justice do not warrant the admission of the
    fresh evidence on this appeal.

Unreasonable Verdict

[59]

As mentioned, the appellant submits that the inconsistencies in the
    evidence on the identification of the driver of the van coupled with the
    absence of a thorough police investigation rendered the verdict unreasonable.

[60]

The law on unreasonable verdicts is uncontroversial. The question is
    whether the verdict is one that a properly instructed jury acting judicially
    could reasonably have rendered:
R. v. Yebes
,
    [1987] 2 S.C.R. 168, at p. 185; and
R. v. Biniaris
,

2000 SCC 15, [2000] 1
    S.C.R. 381, at para. 36.

[61]

Admittedly in this case, certain information was not obtained by the
    police. Officer Naqvi did not ask the appellant for ownership or insurance
    documents or seize the key to the van. No photos of the logo on the van or on the
    appellants vest were taken. And the van was not dusted for fingerprints. Officer
    Naqvi did not interview anyone at the scene or record the names of others at
    the scene, although it is clear that another officer did.

[62]

The trial judge instructed the jury on the state of the police
    investigation:

It is important that you understand that
    Constable Naqvi could have done further investigation with respect to
    ascertaining the identity of the driver, and you are entitled to take that into
    account in assessing the overall reliability of the investigative process which
    produced the evidence relied on by the Crown to prove this case beyond a
    reasonable doubt, and help you decide the significance, if any, of the absence
    of this evidence.

[63]

In addition, there were some inconsistencies in the evidence of the
    witnesses at the scene, most notably their estimates of the drivers height.
    That said, the evidence before the jury did include the following:

·

Ms. Tello testified that immediately after the
    accident, she saw a white male get out of the drivers seat of the van, kick
    the Nissan Altima, and sit back in the drivers seat until he met and then
    departed with the police officers. She did not see anyone else in the van.

·

When Officer Carrol arrived six minutes after the
    accident, the appellant was leaning against the drivers side of the van with
    the drivers door open.

·

The appellant identified himself with a valid
    drivers licence before he was arrested.

·

No one else was seen in or in the vicinity of the
    van.

·

Mr. Linder testified that the driver looked like he
    was intoxicated.

[64]

In the face of this constellation of facts coupled with the trial
    judges instruction, it cannot be said that the jurys verdict was
    unreasonable. A properly instructed jury acting judicially could reasonably
    have rendered a verdict of guilt in this case.

Disposition

[65]

For these reasons, I would dismiss the motion to admit fresh evidence
    and dismiss the appeal.

Released: S.E.P. February 19, 2019

S.E. Pepall J.A.

I agree. P. Lauwers J.A.

I agree. Fairburn J.A.