COURT OF APPEAL FOR ONTARIO

CITATION: Prescott & Russell (United Counties) v. David
    S. Laflamme Construction Inc., 2018 ONCA 495

DATE: 20180531

DOCKET: C64429

Doherty and LaForme JJ.A. and Himel J. (
ad
    hoc
)

BETWEEN

The Corporation of the
    United Counties of Prescott &
Russell

Plaintiff
(Respondent)

and

David S. Laflamme Construction Inc. and
    Waterproof
Concrete (Canada) Ltd.

Defendants
(Respondents)

Matthew W. Malcolm and Howard B. Borlack, for the
    appellant (non-party) WSP Canada Inc.

Allan R. OBrien, for the respondent The Corporation of
    the United Counties of Prescott & Russell

Heard: May 24, 2018

On appeal from the
    order of Justice Michelle OBonsawin of the Superior Court of Justice, dated September
    13, 2017.

REASONS FOR DECISION

I.

[1]

The respondent (plaintiff in the action) brought a motion under r.
    5.04(2) for an order adding WSP Canada Inc. (WSP) as a defendant in an
    ongoing action.  That action arose out of alleged negligence in the
    rehabilitation of a bridge.

[2]

The respondents motion turned on whether its claim against WSP was out
    of time under the provisions of the
Limitations Act
, 2002, S.O. 2002,
    c. 24, Sched. B.  Section 21 of the Act provides:

If a limitation period in respect of a claim against a person
    has expired, the claim shall not be pursued by adding the person as a party to
    any existing proceeding.

[3]

On the motion, the respondent contended that its claim against WSP was
    not reasonably discoverable until a date within the two year limitation
    period.  WSP contended that the respondent had ample information upon which to
    base its claim years earlier.  The motion judge accepted the respondents
    position, concluding, at para. 38:

Consequently, I find that the United Counties [respondent] can
    add WSP as a party to the litigation since its actions to do so were within the
    limitation period.

[4]

WSP appeals claiming that the motion judge erred in concluding that the
    claim could not reasonably have been discovered at a point beyond the
    applicable time limit under the Act.  The respondent argues that the motion
    judge was correct in her analysis of the
Limitations Act
provisions.
    The respondent also raises a preliminary jurisdictional point.  Counsel argues
    that the order under appeal is interlocutory and not final, meaning that any
    appeal lies with leave to the Divisional Court.

[5]

The respondent acknowledges that if the order is not final, the
    respondent cannot claim that the order is binding on the trial judge, meaning
    that WSP can re-litigate the limitation issue at trial.  Counsel has raised the
    issue, however, because in his submission, the jurisprudence from this court
    dictates that the order is interlocutory and cannot be appealed to this court.

[6]

We agree with the respondents submission on the jurisdictional issue.

[7]

The distinction between a final and interlocutory order for the purposes
    of determining the appropriate appellate forum is not always easy to make: see
Salewski
    v. Lalonde
, 2017 ONCA 515;
Azzeh v. Legendre
, 2017 ONCA 385.  In
    the present context, the order will be said to be final if it deprives WSP of a
    substantive defence.  If WSP can no longer rely on the
Limitations Act
defence, the order is final.  However, if WSP can raise the
Limitations Act
defence at trial, the order is not final. To determine whether the order
    is final or interlocutory, one must examine the terms of the order, the motion
    judges reasons for the order, the nature of the proceedings giving rise to the
    order, and other contextual factors that may inform the nature of the order.

[8]

Looking first at the order itself, there is nothing in the language to
    suggest that any final determination was made on the
Limitations Act
issue.  The order, presumably drawn with the cooperation of counsel, makes no
    reference to the
Limitations Act
or any findings made in respect of
    that Act. The order simply allows the respondent to add WSP as a defendant.

[9]

The motion judges reasons contain no language suggesting that any
    finding made in respect of the application of the
Limitations Act
had
    application beyond the motion itself.  The motion judge did not purport to
    decide the issue for any purpose other than the determination of the motion to
    add WSP as a party.

[10]

The
    nature of the motion is also relevant to the nature of the order arising from
    the motion. Some motions tend to generate final orders. For example, orders
    made on r. 21 motions brought to determine a question of law, will generally
    apply to the litigation as a whole. Depending on the question of law decided,
    the order may well be final. Motions to add parties that are successful,
    however, do not as a rule generate findings that are binding in the rest of the
    litigation.

[11]

We
    also cannot accept the contention that because the motion judge was required to
    make a finding as to the application of the
Limitations Act
, her
    finding must be regarded as binding in the litigation and therefore final.
    Section 21 of the
Limitations Act
forbids adding a party where the
    limitation period has expired. It does not foreclose adding a party absent an
    affirmative finding that the limitation period has not expired.

[12]

Having
    regard to the factors outlined above, we conclude that the trial judges
    determination that the action was brought within the limitation period was made
    for the purposes of the motion only. The motion judge was satisfied that, for
    the purposes of determining whether to add WSP as a party, the limitation
    period had not expired.

[13]

The
    order under appeal is interlocutory.  This court has no jurisdiction to hear
    the appeal.  WSP may, if so advised, seek leave to appeal in the Divisional
    Court, or it may raise the limitations argument at trial.

[14]

We
    make no comments on the merits of the motion judges decision as should the
    matter be raised at trial, the record may well be considerably different than
    was the record before the motion judge.

[15]

The
    appeal is quashed.  Costs of the appeal to the respondent in the amount of
    $12,000, inclusive of disbursements and relevant taxes.  The motion judge has
    not dealt with the question of costs on the motion.  The parties have asked
    that we make no order with respect to the costs of the motion and leave that
    issue to be dealt with by the motion judge. So ordered.

Doherty J.A.

H.S. LaForme J.A.

Himel J. (
ad hoc
)


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ahmaddy, 2018 ONCA 496

DATE: 20180530

DOCKET: C63676

Watt, Huscroft and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nasir Ahmaddy

Appellant

Faisal Mirza, for the appellant

James D.M. Clarke, for the respondent

Heard: May 28, 2018

On appeal from the conviction entered on November 17,
    2017 by Justice Harvey P. Brownstone of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of a single count of trafficking cocaine,
    contrary to s. 5(3)(a) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c 19.

[2]

In brief compass, the facts are as follows. The appellant was alleged to have sold nine ounces of cocaine to a drug dealer named Mohammad Nassimi, who in turn sold drugs to an undercover officer. Nassimi was observed getting into the appellant's car and then leaving with a bag. The trial judge found that, shortly afterwards, Nassimi gave the same bag to an undercover officer. Nassimi was arrested, along with his girlfriend. In the meantime, the police had the appellant's vehicle under surveillance. After Nassimi and his girlfriend were arrested, so was the appellant.

[3]

Nassimi testified at the appellants trial, claiming that he had
    purchased the cocaine from the appellant. Nassimis credibility was challenged
    by the defence. The appellant did not testify. The trial judge accepted
    Nassimis evidence and was satisfied beyond a reasonable doubt that the appellant
    sold cocaine to Nassimi that evening. The trial judge also found that the
    appellants guilt could be independently established on the basis of the police
    surveillance evidence.

[4]

The appellant advances several grounds of appeal, focusing on how the
    trial judge dealt with Nassimis evidence. We are not persuaded that any of
    them should succeed. The trial judge was entitled to accept Nassimis evidence.

[5]

The trial judge did not improperly rely on Nassimis demeanour in
    finding him to be a credible witness. The trial judge carefully scrutinized
    Nassimis evidence, whom he characterized as an admittedly problematic
    witness. Nassimi was very uncomfortable testifying against the appellant. He
    had already pled guilty and been sentenced. Having accepted responsibility for
    his part, Nassimi thought the appellant should have as well.

[6]

The appellant takes issue with the trial judges observation that, when
    Nassimi expressed these sentiments, he was looking directly at [the appellant]
    when he was saying that. This was the only direct reference to Nassimis
    demeanour. Triers of fact are entitled to consider demeanour, as long as it is
    not given undue consideration. In this case, the trial judge did not make this
    mistake.

[7]

The appellant advances an assortment of other arguments concerning the
    trial judges treatment of Nassimis evidence. These include Nassimis desire
    to shield his girlfriend from criminal liability, as well as the massive
    benefit Nassimi received when he pled guilty and received a sentence of 18
    months imprisonment.

[8]

We see no error in the manner in which the trial judge treated Nassimis
    evidence. He looked at all of the factors that were relevant to the assessment
    of his credibility. There was no misapprehension of the evidence. Presumed to know
    the law, the trial judge was not required to specifically instruct himself on
    the dangers of relying on the evidence of an unsavoury witness: see
R. v.
    Snyder
, 2011 ONCA 2635, at para. 24. Nevertheless, the trial judge did
    look for evidence that confirmed Nassimis account. This evidence was
    plentiful. As noted above, the trial judge would have found the appellant
    guilty on the basis of the surveillance evidence alone.

[9]

For these reasons, the appeal is dismissed.

David Watt J.A.

Grant Huscroft J.A.

G.T. Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ahmed, 2018 ONCA 426

DATE: 20180504

DOCKET: C64416

LaForme, Watt and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Syed Sufian Ahmed

Appellant

James Foy, for the appellant

Avene Derwa, for the respondent

Heard and released orally: May 2, 2018

On appeal from the sentence imposed on September 26, 2017
    by Justice John R. Sproat of the Superior Court of Justice.

REASONS FOR DECISION

[1]

At trial, the appellant admitted to taking the money from the
    complainant. The trial judge rejected the appellants evidence of his reasons
    for doing so. He found the appellant created a scheme to deprive the
    complainant, a client and friend of the family, of $110,000 by fabricating an
    expensive immigration problem. The fraud, he found, was planned and involved
    a breach of trust but lasted only a few days.

[2]

Defence counsel acknowledged that a conditional sentence was not
    available. Instead, it was proposed that the trial judge workaround this by
    imposing a suspended sentence with a term of probation and possibly a fine of
    $10,000 to $15,000. In the alternative, an intermittent sentence was sought.

[3]

The Crowns position was that an appropriate sentence was a custodial
    term of 18 months and a two year term of probation.

[4]

The appellant was sentenced to 13 and one-half months imprisonment
    followed by 2 years probation. He appeals his sentence.

[5]

The appellant submits that a non-custodial sentence could meet the
    primary objectives of denunciation and deterrence. Having found that these
    goals could be met without incarceration, the trial judge erred by sentencing
    the appellant to jail. He says a suspended sentence is a fit sentence, or in
    the alternative a 90 day intermittent sentence.

[6]

We disagree that the trial judge failed to apply the principle of
    restraint for this first time offender and relied exclusively on the principle
    of parity to justify a custodial sentence. A conditional sentence was not
    available to the appellant for the offence of fraud over $5,000. Nevertheless,
    the trial judge considered whether a suspended sentence or an intermittent
    sentence, as requested by the defence, would be appropriate. He reasonably
    concluded it would not.

[7]

In any case, the trial judges sentencing decision is entitled to
    significant deference from this court. Intervention is only warranted if he
    made an error of law or an error in principle that has an impact on the
    sentence, or if the sentence is demonstrably unfit. Moreover, merely
    identifying an error in the sentencing judges decision will not displace
    deference. The error must have had an impact on the sentencing:
R. v.
    Lacasse
, 2015 SCC 64, at paras. 44. And as the Supreme Court stated at
    para. 51 in
Lacasse
:

[T]he choice of sentencing range or of a category within a
    range falls within the trial judges discretion and cannot in itself constitute
    a reviewable error. An appellate court may not therefore intervene on the
    ground that it would have put the sentence in a different range or category. It
    may intervene only if the sentence the trial judge imposed is demonstrably
    unfit.

[8]

The sentence here is not unfit. The sentence appeal is dismissed.

H.S. LaForme J.A.

David Watt J.A.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Allen, 2018 ONCA 498

DATE: 20180531

DOCKET: M47018, M47019, M47020 (C50350, C50346, C50360)

Watt, Hourigan and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Dwight Allen, Zacky Deleon and Jaime Restrepo

Appellants

Philip Campbell, for the appellant, Jaime Restrepo

Margaret Bojanowska, for the appellant, Michael Dwight
    Allen

Zachary Kerbel, for the appellant, Zacky Deleon

John Patton, for the respondent

Heard: November 22, 2017

On appeal from the conviction entered on July 10, 2008 by
    Justice Ronald G. Thomas of the Superior Court of Justice, sitting with a jury.

Watt J.A.:

[1]

Ronnie Khananisho and a chameleon have something in common: the ability
    to change according to their surroundings. A chameleon changes colour, Ronnie Khananisho
    his story about how a man came to be murdered.

[2]

Ronnie Khananisho had one version for the police, a second, for a jury.
    Both these versions, he now says, are lies. Cobbled together from information
    provided by the police. Repeated before a jury to avoid being charged.

[3]

Years later, Ronnie Khananisho has a third version of the same events. An
    account offered here as truthful, six years after a different panel of this
    court dismissed appeals by those convicted of the murder about which Khananisho
    testified.

[4]

As I will explain, I would not admit Ronnie Khananishos most recent
    rendition of the murder of Mauricio Castro as fresh evidence and would confirm
    the order of the prior panel dismissing the appeals from conviction.

The background facts

[5]

Some background about the nature of the case presented at trial and the
    role of the testimony of Ronnie Khananisho in the demonstration of guilt there
    will provide the setting necessary to understand and evaluate the basis upon
    which the further evidence of Khananisho is proposed for reception here. I will
    first summarize the Crowns case against the appellants, before describing how
    Khananishos evidence fit within that case.

The Crowns Case

Overview

[6]

Mauricio Castro was a large scale importer of cocaine. His source in
    Colombia was his father, Humberto Castro. Mauricio Castro sold wholesale
    quantities of cocaine to the appellant Jaime Restrepo and his brother, Jorge
    Restrepo. The Restrepos would resell the cocaine to lower level dealers at a
    substantial profit. Among those who delivered cocaine to the lower level
    dealers were Zacky Deleon and Jorge Acosta-Cardenos (Jorge Acosta or
    Acosta).

[7]

During the summer of 2005, the Restrepo brothers were indebted to the
    Castro family for $1,000,000 for cocaine that the Castros had provided to them.
    To extinguish the debt, Jaime Restrepo developed a plan to kill both Mauricio
    and Humberto.

[8]

The plan to kill the Castros involved five people. Jaime, the
    mastermind, left Canada for Colombia where he would arrange the murder of
    Humberto Castro. Michael Allen, another lower level drug dealer, would shoot
    Mauricio Castro to death in Canada. Allen was introduced to Jaime by Ronnie
    Khananisho, a low-level drug dealer who had dealings with Allen and the
    Restrepo brothers. Allen would be driven to and from the scene of the shooting
    by Jorge Acosta and was to be paid two kilograms of cocaine for the killing.
    The payment was to be delivered by Zacky Deleon from the Restrepos supplies.
    Jorge Restrepo was his brothers right-hand man and well-versed in the plan.

The Evidence of Jorge Restrepo and Jorge Acosta

[9]

Jorge Restrepo and Jorge Acosta testified as Crown witnesses at trial.
    Their evidence disclosed the motive for the killing  to eliminate the
    $1,000,000 debt the Restrepos owed the Castros  and described the plans
    initially made and later revised to have Michael Allen shoot Mauricio Castro to
    death near Square One in Mississauga on July 26, 2005. These witnesses also
    explained how the various participants in the plot were paid after Castro was
    shot to death. About five days later, when Jaime Restrepo was in Colombia, Humberto
    Castro was murdered there.

The Plan To Kill Mauricio Castro

[10]

The
    originator of the murder plan was Jaime Restrepo. The plan was a means by which
    he could satisfy his $1,000,000 debt to the Castros for drugs and money that
    had been seized by government agents. An earlier plan to kill both Mauricio and
    Humberto in Colombia had failed to materialize. When Acosta and Jaime left
    Colombia, Jaime advised Acosta that the plan had changed: Mauricio would be
    killed in Canada and Humberto murdered in Colombia. Jorge Restrepo agreed with
    this plan.

Recruiting the Shooter

[11]

Michael
    Allen was to be the shooter of Mauricio Castro. The Restrepo brothers asked
    Zacky Deleon for Allens phone number. Deleon did not have the number, but told
    the Restrepos that it would be safe for them to ask Ronnie Khananisho for
    assistance.

The Meeting in the Park

[12]

Prior
    to the shooting of Mauricio Castro, the Restrepo brothers, Allen, Khananisho,
    Deleon and Acosta met in a park not far from the Square One shopping complex
    where Castro was shot to death.

[13]

Jorge
    Acosta recalled that while the group was at the park, Jaime Restrepo and
    Michael Allen had a conversation for about 15 to 20 minutes. The two men were
    standing about 20 metres away from the others. Acosta did not hear what Allen
    and Jaime Restrepo said to one another. But when Jaime returned to his
    brothers truck, he (Jaime) said that Allen would kill Mauricio Castro for two
    kilograms of cocaine.

[14]

In
    his statement to investigators and evidence at the preliminary inquiry, Acosta
    omitted any reference to Ronnie Khananishos presence at the meeting in the
    park. He wanted to keep Khananisho out of his account. Acosta also admitted
    that he had lied in his prior statement and evidence about who was at the
    meeting in the park and how they got there. He denied that he had been told by
    the police or Crown to say that Khananisho was at the meeting.

[15]

Jorge
    Restrepo testified that the meeting at the park took place two days after a
    meeting at the J.R. Social Club with Ronnie Khananisho. Jorge Restrepo, his
    brother Jaime, Jorge Acosta and Zacky Deleon arrived together. Khananisho and
    Allen arrived together in Khananishos vehicle. Jaime Restrepo and Allen spoke
    privately about 20 feet away from the other members of the group. After this
    discussion, Jaime said Allen would kill Mauricio Castro for two kilograms of
    cocaine.

[16]

In
    his first police statement Jorge Restrepo made no mention of Ronnie
    Khananishos presence at the meeting in the park. In another statement, about
    five months before trial, Jorge Restrepo was unsure whether Khananisho had been
    present at the meeting in the park. Jorge Restrepo denied fabricating his
    testimony and tailoring it to match what Jorge Acosta had said at the
    preliminary inquiry.

The Shooting of Mauricio Castro

[17]

Jaime
    Restrepo flew to Colombia on July 24, 2005 to arrange for the murder there of
    Mauricios father, Humberto Castro. Jorge Restrepo was to arrange Mauricios
    murder in Canada. Initially, the plan was that Mauricio would be killed at his
    home. Jorge Restrepo and Acosta surveilled the area around Castros home in
    Bolton for this purpose.

[18]

The
    following day, Acosta met with Allen and Deleon at a Future Shop outlet to
    finalize plans for the killing. They confirmed Castros home as the site for
    the killing. But Allen, who had no car, refused to ride his motorcycle to the
    scene. He wanted a driver. Deleon demurred. Later that same day, Acosta, his
    wife and Deleon drove to Bolton to look at Castros home. Castros car was in
    the driveway. Acosta called Allen to suggest the killing should take place
    immediately. But Allen was in London. There would be no killing that day.

[19]

On
    July 26, 2005 Acosta and Allen drove to Bolton. Castro was not home. They
    returned to Toronto. They met with Jorge Restrepo. Allen insisted that the
    killing take place at noon when Castro and Jorge Restrepo were scheduled to
    meet in Mississauga. Castro parked outside the restaurant where the meeting was
    to take place. Acosta, Jorge Restrepo and Allen were in the area. Allen left
    Acostas car. Ten minutes later he returned. Allen said he had shot Castro once
    in the face and three times in the chest.

The Payment

[20]

Shortly
    after Allen shot and killed Mauricio Castro, Deleon instructed Acosta to pay
    Allen his fee for the killing  two kilograms of cocaine. Deleon got the drugs
    from a warehouse and provided them to Allen. Jorge Restrepo testified that he
    paid Acosta $80,000 and Deleon $65,000. Acosta insisted that Deleon only
    received $50,000.

The Medical Evidence

[21]

The
    Crown tendered evidence from a forensic pathologist, who testified that Mr.
    Castro suffered four bullet wounds: one to the face and three to the upper
    body. This evidence matched Jorge Acostas account of how Allen described the
    shooting to him immediately after it took place.

The Cellphone
    Evidence

[22]

Evidence
    was given at trial about contact between cellphones attributed to various
    participants at different times before, contemporaneous with and after the
    shooting of Mauricio Castro.

[23]

On
    July 25, 2005 Deleons phone contacted Allens phone nine times and Jorge
    Restrepos phone three times. Between 4:00 and 6:00 p.m., Acostas phone
    registered at a location near the Future Shop where he said he had met with
    Allen and Deleon to talk about the murder. At 10:45 that same evening, while
    Acosta and Deleon were surveilling Castros home in Bolton, Deleon called Allen
    whose phone registered in London and Jorge Restrepo called Acosta, whose phone
    registered in Bolton.

[24]

During
    the morning of July 26, 2005, the day Mauricio Castro was killed, there was
    repeated contact between the phones of Acosta and Allen including an early
    morning call that registered in Bolton where Acosta had driven in anticipation
    that the murder would take place there. Around 9:41 a.m., Jorge Restrepo called
    Mauricio Castro, consistent with Restrepos evidence about setting up their
    noon hour meeting in Mississauga. Acosta called Jorge Restrepo around 11:00
    a.m., each registering in the Square One shopping centre area. The cellphones
    of Jorge Restrepo, Castro, Acosta and Allen all registered in the Square One
    area between 11:41 and 11:49 a.m. Deleons phone registered in Barrie.

[25]

Mauricio
    Castro was shot to death at 11:53 a.m. on July 26, 2005.

[26]

At
    11:57 a.m. Acosta called Jorge Restrepo. The call registered in the area of
    Mississauga Road and Silver Creek. Acosta called Deleon at 12:18 p.m., then two
    unknown numbers in Colombia. Deleon, whose phone registered in Barrie,
    contacted Acosta at 12:29 p.m. and Jorge Restrepo at 12:56 p.m. A few hours
    later, at 6:17 p.m., Deleon contacted Allen. Deleons phone registered near
    Yonge St. and Sheppard Ave., in the area where he claimed to have obtained two
    kilograms of cocaine from a warehouse to pay Allen. Deleon contacted Allen
    seven times between 6:55 p.m. and 7:14 p.m. At 7:15 p.m., Deleon called Allen
    again. Both of their phones registered in the area of Yorkdale Mall.

[27]

Acosta,
    Jorge Restrepo and Deleon last used their phones on the day on which Mauricio
    Castro was shot to death.

Ronnie Khananishos Evidence

[28]

The
    Crown also called Ronnie Khananisho as a witness. Khananisho was an associated
    distributor-level drug dealer who bought cocaine from the Restrepos, then
    resold it for a profit.

[29]

Ronnie
    Khananisho provided two statements to the police before testifying at trial. In
    his first statement, provided in 2006, he denied having any knowledge relevant
    to Mauricio Castros murder. In his second statement, provided in 2008,
    Khananisho acknowledged that Jaime Restrepo asked him to help do something
    about Restrepos cousin. Khananisho thought that Jaime Restrepo was referring
    to killing his cousin, though Jaime never explicitly mentioned this.

[30]

Ronnie
    Khananisho was a very reluctant and uncooperative witness for the prosecution
    at trial. He acknowledged that he sold cocaine by the pound to others and that
    the cocaine was supplied to the Restrepo brothers. He was also the part owner
    with his brother of the J.R. Social Club and had a similar interest in a sports
    bar with Jaime Restrepo.

[31]

Ronnie
    Khananisho testified that he may have met Jaime Restrepo at the Social Club
    in the summer of 2005. In the discussion that followed, Khananisho learnt that
    Jaime Restrepo owed Mauricio Castro some money and could not repay him. Jaime
    wanted to do something, could be anything, maybe hurt him or even kill
    him. Khananisho told Jaime that he wouldnt help him and walked away. But Khananisho
    admitted that he knew Michael Allens telephone number. He provided that number
    to Jaime Restrepo.

[32]

Ronnie
    Khananisho confirmed that he drove Michael Allen to a park prior to the killing
    of Mauricio Castro. There they met Jaime and Jorge Restrepo, Jorge Acosta and
    Zacky Deleon, who had come together in a different vehicle. Khananisho said
    that the meeting, which had been pre-arranged, was about their drug business.
    He explained that Jorge Restrepo, Deleon and Acosta had delivered cocaine to
    him in the past. Khananisho and Allen worked together buying one-half kilograms
    of cocaine at a time. Khananisho was vague about the timing of the meeting, but
    at one point agreed that it could have been two to four weeks before Castro was
    shot to death, and two weeks after he and Jaime Restrepo had met at the J.R.
    Social Club.

[33]

Ronnie
    Khananisho testified that on the date of the shooting he was at a wedding in
    Mexico with his friend, Johnny. The wedding was at a beach resort, but
    Khananisho could provide no further details. He did not know the couple who
    were being married, nor for that matter anybody else at the wedding. Khananisho
    simply tagged along with his friend.

[34]

Ronnie
    Khananisho made it clear in his examination-in-chief by the Crown (not Mr. Patton)
    that he was not happy to be in court testifying at the appellants trial. Had
    he not been subpoenaed as a witness, he would not have appeared voluntarily to
    give evidence. He claimed that members of the Peel Regional Police Service told
    him that if he lied in giving evidence, he would be charged with conspiracy to
    commit murder in connection with the shooting of Mauricio Castro.

[35]

In
    cross-examination at trial, Ronnie Khananisho testified that the police and
    others made clear to him that the police believed Allen to be the shooter and that
    he, Khananisho, had set up a meeting between Allen and Jaime Restrepo. In
    January 2008, about two years after his first statement to the authorities,
    Khananisho was invited by the police for a further interview. At this time he
    had a lawyer, one who had represented him on several prior occasions. Once
    again, Khananisho was offered the choice of talking to the police or being
    charged with conspiracy to commit murder. He knew what police expected him to
    say and felt he had no choice but to do so.

[36]

At
    trial, Crown counsel, apparently displeased with Khananishos failure to give
    evidence in accordance with his January 2008 statement, reminded Khananisho
    periodically that the video of his police interview could be played to help him
    recall various events. Khananisho took these reminders as a signal that he was
    not cooperating and not providing the testimony expected of him. It was during
    one of these exchanges about playing the video that Khananisho testified that
    Jaime Restrepo said [m]aybe kill him when he asked Khananisho for help in
    doing something to Castro in connection with the $1,000,000 outstanding debt
    for supplying cocaine.

[37]

In
    re-examination, Khananisho agreed that both the police and the Crown told him
    to tell the truth in his testimony at trial.

The Defence Position

[38]

The
    defence presented a united front at trial although none of the appellants
    testified or called any witnesses. They contended that Acosta fabricated his
    testimony, as did Jorge Restrepo, who was permitted to review the evidence
    Acosta had given at the preliminary inquiry. The defence contended that
    Khananisho provided false evidence to confirm the testimony of Jorge Restrepo
    and Acosta because he was provided with the substance of the Crowns theory by
    police and threatened with prosecution if he deviated from the script. Counsel
    for Jaime Restrepo suggested that Acosta and Jorge Restrepo had carried out the
    killings themselves.

The Verdict

[39]

The jury convicted the appellants of first degree murder. Before
    rendering its decision, the jury requested a review of Khananishos evidence
    regarding the meeting at the Mississauga park.

The First Appeal

[40]

The
    appellants appealed their convictions to this court. They alleged several
    errors in the trial judges charge to the jury, in particular, that:

i.

the
Vetrovec
warning with respect to the testimony of Jorge
    Restrepo and Jorge Acosta was inadequate;

ii.

the distinction the trial judge drew in the cautions he gave jurors
    about the evidence of Jorge Restrepo, Acosta and Khananisho was unwarranted and
    legally wrong;

iii.

the charge failed to point out that there was no confirmatory evidence
    in relation to Jaime Restrepos testimony; and

iv.

the trial judge failed to properly instruct the jury on the defence of
    abandonment in connection with the appellant Deleon.

[41]

On
    November 30, 2011 a differently constituted panel of this court dismissed the
    appeals.

The Motion for Leave to Appeal

[42]

Almost
    four years later  August 12, 2015  the appellants sought leave to appeal to
    the Supreme Court of Canada from the decision of this court. In addition to
    alleging legal errors in the dismissal of their appeal, the appellants sought
    leave to introduce as fresh evidence Ronnie Khananishos recantation of his
    trial testimony.

[43]

On
    February 16, 2016 the Supreme Court of Canada invoked s. 43(1.1) of the
Supreme
    Court Act
, R.S.C. 1985, c. S-26
to remand the case to this court to determine the admissibility of the fresh
    evidence. The Court held the remainder of the motion for leave to appeal in
    abeyance pending our determination of the fresh evidence application.

the motion to introduce fresh evidence

[44]

The
    single issue assigned to us is whether it is in the interests of justice to
    receive the fresh evidence proposed for admission. The focal point of the fresh
    evidence is the affidavit of Ronnie Khananisho recanting his trial testimony
    and his cross-examination on that affidavit. Additional materials, including
    the affidavits of Inspector Martin Ottaway of Peel Regional Police Service and
    of Emily Lauren Huard, together with their cross-examinations on those
    affidavits, provide context to assist in determining the admissibility of the Khananisho
    affidavit.

[45]

In
    earlier paragraphs I have summarized the evidence Ronnie Khananisho gave at
    trial. Repetition here would serve no useful purpose.

The Affidavit of Ronnie Khananisho

[46]

On
    November 21, 2014, nearly three years after this court dismissed the
    appellants appeals from conviction and more than nine years after Mauricio
    Castro was shot to death, Ronnie Khananisho swore the affidavit that is
    proposed for reception on appeal.

[47]

In
    the second paragraph of his affidavit Ronnie Khananisho swore:

Important parts of the evidence that I gave at the trial were
    false. I had no information whatever about the killing of Mauricio Castro,
    either before it happened or after. I did not witness anything to indicate that
    Jaime Restrepo, Jorge Restrepo, Jorge Acosta, Zacky Deleon or Michael Allen
    were involved in the murder of Mr. Castro.

[48]

In
    subsequent paragraphs of his affidavit Ronnie Khananisho:

i.

denied being asked by Jaime Restrepo to assist in killing or hurting Mauricio
    Castro;

ii.

denied providing Michael Allens phone number to Jaime or Jorge Restrepo,
    Zacky Deleon or Jorge Acosta or being asked to do so; and

iii.

acknowledged a meeting in a Mississauga park with the Restrepos, Deleon
    and Acosta, but said it was about drug dealing, not the murder of Mauricio
    Castro. Khananisho could not recall when the meeting occurred in relation to
    Castros murder.

[49]

In
    his affidavit, Ronnie Khananisho acknowledged that his trial testimony about
    his relationship with the Restrepos, Deleon, Acosta and Allen was basically
    true, including his purchase of cocaine from the Restrepo group, its delivery
    by Deleon and sale of some of it to Allen. He admitted a closer relationship with
    Jaime than with Jorge Restrepo, but said he knew nothing about any debts owed by
    the Restrepos to Castro or any desire on the part of the Restrepos to have
    Castro murdered.

[50]

Ronnie
    Khananisho deposed that he could not remember exactly when he heard about the
    murder of Mauricio Castro. The murder had been reported in the media, but
    beyond that he knew nothing about it, either before or after it happened. He
    confirmed his trial testimony that he was in Mexico on the day Castro was shot
    to death.

[51]

In
    connection with his police interview on March 6, 2006, Ronnie Khananisho averred
    that police officers interviewed him a few days after they had questioned his
    brother. He believed before and after the interview that the police suspected
    that Michael Allen had killed Mauricio Castro and the he (Khananisho) was
    involved in some way. As the interview progressed it became clear to Khananisho
    that the police believed that:

i.

he had put the Restrepos in contact with Michael Allen, after Jaime
    Restrepo had asked for assistance in the killing of Mauricio Castro;

ii.

Michael Allen shot and killed Mauricio Castro; and

iii.

Michael Allen came to the J.R. Social Club after the killing.

Apart from being aware of the arrest of the
    appellants, Ronnie Khananisho said he knew nothing about the case or the
    evidence.

[52]

Ronnie
    Khananishos affidavit also describes his police interview in January, 2008,
    nearly two years after his first interview. He was contacted by a detective
    from Peel Regional Police Service. In turn, Khananisho consulted a lawyer who
    had acted for him on several previous occasions. As a result, Khananisho
    understood that if he did not cooperate by giving a statement and evidence
    against the appellants, he would be charged with conspiracy to commit murder.
    He instructed his lawyer to tell the police that he would not give a statement.
    But later that day, he went to the police station and was interviewed by a
    police officer. The interview was videotaped, but not under oath.

[53]

In
    his affidavit, Ronnie Khananisho offered the following explanation for what he
    told the police during the videotaped interview of January 23, 2008:

Though I did not sign an agreement with the police during that
    interview, I did end up answering questions from Detective Lawson on videotape.
    As I answered his questions, I was aware that if I did not tell the police what
    they believed, I would be charged with conspiracy to murder Mauricio Castro. As
    a result, I gave the police information that fit with what I believed they
    thought about the murder and the part in it played by Michael Allen, Jaime
    Restrepo and Zacky Deleon. This recorded interview was the video that the
    Crown Attorney mentioned while I was testifying in court. When I testified in
    court, I believed that if the Crown had to question me on the video I gave, I
    would be considered an uncooperative witness and could be charged with
    conspiracy to commit murder.

At the time of this interview, I was married and had three
    small children. My wife was pregnant. I was very afraid of being charged with
    conspiracy to commit murder. I knew that the police had witnesses who were
    saying that Jaime, Mikey and Zacky were guilty of murder because they got
    charged and held in prison. If those witnesses were saying that I conspired to
    commit the murder too, then it was possible I could be charged and convicted
    even though I knew nothing about the killing and had nothing to do with it.
    That is why I went along with the police theories about my involvement with
    Mikey, Jaime and Zacky and it is why I gave the testimony I did at their trial.

[54]

Ronnie
    Khananisho offered this explanation for coming forward now to correct my false
    evidence:

I am coming forward now with the truth because I want to tell
    the truth and correct my false evidence. I have not come under any kind of
    pressure to provide this affidavit and I do not expect any advantage from
    telling the truth. I understand that I may still be prosecuted for conspiracy
    to commit murder, or for perjury and other offences related to my false testimony.
    I am prepared to accept those consequences if necessary.

I understand that I may be required to give under oath in
    proceedings before the Supreme Court of Canada, or at a special examiners
    office, and in any subsequent court proceedings in this case. I am prepared to
    attend as required for this purpose.

The Cross-Examination of Ronnie Khananisho

[55]

Counsel
    for the respondent cross-examined Ronnie Khananisho on his affidavit at
    considerable length. Among the subjects counsel canvassed with Khananisho were
    four features of the evidence he gave at trial:

i.

his drug dealing relationship with the Restrepo group and Michael Allen;

ii.

his conversations with Jaime Restrepo about Mauricio Castro;

iii.

his disclosure of Michael Allens telephone number to the Restrepo
    group; and

iv.

the meeting in the park in Mississauga with members of the Restrepo
    group and Michael Allen

[56]

On
    the first subject, Ronnie Khananisho reiterated that his evidence at trial
    about his drug dealings with the Restrepo group was basically true.
    Khananisho acknowledged that he bought one or two kilograms of cocaine each
    week from Jaime Restrepo, whose source was Mauricio Castro. Khananisho sold
    what he bought at a profit of $3,000 to $5,000 per week. One of the persons to
    whom he sold cocaine was Michael Allen.

[57]

On
    the topic of his discussions with Jaime Restrepo, Ronnie Khananisho denied that
    Restrepo ever asked him about having Mauricio Castro killed. Khananisho affirmed
    his earlier evidence that he was prone to walk away from conversations that
    sought his help but could get him in trouble. Being asked to help out could
    have meant anything, such as providing a phone number or giving Michael Allen a
    ride to the park. He denied any memory of being asked to help kill Castro.

[58]

Ronnie
    Khananisho also maintained during cross-examination that he did not provide
    Michael Allens phone number to the Restrepo group. Khananisho did acknowledge
    that as a participant in the drug business he changed his telephone number
    frequently, as did Michael Allen.

[59]

When
    cross-examined on his affidavit, Khananisho acknowledged attending a meeting in
    a park with the Restrepo brothers, Jorge Acosta and Zacky Deleon. He insisted,
    however, that the meeting was held to discuss drug-dealing activities.
    Khananisho testified that he said nothing about the meeting in the park during
    his police interview because he wanted to get out of the interview without
    implicating anybody. He acknowledged that he drove Allen to the park and
    confirmed his trial evidence about those present and that some of the
    participants had private conversations with others apart from the rest of the
    group. He agreed with a suggestion that the meeting had occurred about two
    weeks to a month before Mauricio Castro was shot to death.

[60]

Counsel
    for the respondent also cross-examined Ronnie Khananisho on his whereabouts on
    July 26, 2005, the date on which Mauricio Castro was killed. At first,
    Khananisho said he didnt know where he was on that day. Reminded of his claim during
    his police interview and at trial that he had been in Mexico, Khananisho
    recalled that he had been there with his friend, Johnny, at a wedding. He
    didnt know any of the wedding party or anybody else apart from Johnny and
    could not recall where the wedding took place other than at some beach in
    Mexico. His wife did not accompany him. He simply tagged along with Johnny.

[61]

Ronnie
    Khananisho was asked about several other incidents in which he had been involved
    prior to the killing of Mauricio Castro. The likelihood that he provided a
    false alibi for his brother when he (his brother) was charged with
    manslaughter. His minor criminal record, including a conviction for mischief. His
    repeated border crossings including occasions when border security officers
    found him returning to Canada with $30,000 in cash (for which he offered
    different explanations) and, a few months later, in a vehicle with a secret
    compartment large enough to hold a gun. A police search of his home that
    resulted in seizure of a loaded handgun and large amounts of cash.

[62]

During
    cross-examination, Ronnie Khananisho elaborated on his relationship with the
    police and how it had affected the evidence he gave at the appellants trial.
    He explained that the police frequently came to his home and place of business
    to put pressure on him. He admitted to giving false evidence when he stated at
    trial that the police and Crown never suggested that he say anything but the
    truth. And he suggested that his own lawyer, whom he consulted during the trial
    and who had acted for him several times over the years, may have been working
    for the police.

[63]

Inspector
    Martin Ottaway of Peel Regional Police Service filed an affidavit in response
    to Khananishos fresh evidence about his relationship with the police.
    Inspector Ottaway stated that police contact with Khananisho was limited to two
    interviews by investigators, service of a subpoena, a meeting with the trial
    Crown to prepare for trial, and his testimony at trial. Inspector Ottaway
    acknowledged that police had attended at Khananishos home and business at
    different times in an attempt to locate him, but had to return later because he
    had been elsewhere.

[64]

Inspector
    Ottaway also contradicted Khananishos denial that the police and Crown had not
    told him to tell the truth in giving his evidence. Inspector Ottaway reviewed various
    references in Khananishos statement to the police, in the notes of
    investigating officers and in Khananishos testimony at trial. Inspector
    Ottaway confirmed that Khananishos counsel was not working for the police or
    for the Crown.

[65]

During
    cross-examination on his affidavit, Ronnie Khananisho admitted that his memory
    had worsened with time when he was asked about events that had occurred about
    11 or more years earlier. Throughout his cross-examination, he seemed reluctant
    to answer yes to questions, preferring instead ok or I dont remember,
    unless specifically asked: Is that a yes?.

The Circumstances of The Recantation

[66]

Ronnie
    Khananisho was also cross-examined about the circumstances in which he came to
    resile from his trial testimony and participate in the preparation of the
    affidavit proposed for admission as fresh evidence.

[67]

Ronnie
    Khananisho explained that in 2012, Emily Huard, Michael Allens former girlfriend
    and the mother of Allens child, came to his auto repair business and inquired
    about the cost of shipping a vehicle from Vancouver. Allen and Khananisho were
    in the drug business together. Allen had been in custody with Khananishos
    brother. According to Khananisho, Emily Huard mentioned that some others had
    said that Khananisho wanted to come forward and say the truth. Khananisho
    told her to contact Allen with whom she had remained in contact.

[68]

Subsequently,
    Allens appellate counsel contacted and met with Ronnie Khananisho. Khananisho also
    met with Jaime Restrepos appellate counsel. Counsel for Restrepo then sent
    Khananisho a draft affidavit.  After he reviewed the draft affidavit,
    Khananisho contacted his own long time counsel for advice.

[69]

Ronnie
    Khananisho was in no hurry to swear the affidavit. He did so when Allens
    appellate counsel re-attended at his place of business. He swore the affidavit
    approximately 30 months after being contacted by Emily Huard.

[70]

When
    cross-examined on her affidavit, Emily Huard testified that her original
    information about Ronnie Khananishos wish to recant his trial evidence came
    from Luke, a person whose last name she did not know. Michael Allen never
    raised this subject with her in their many telephone conversations because she
    and Allen did not talk about his various court proceedings.

[71]

Emily
    Huard acknowledged that a portion of her affidavit was misleading in that it
    left the impression that she was then a student in a paralegal program. She
    explained that she was enrolled in the program but not attending classes. She
    also admitted that she was hesitant about attending for cross-examination
    because of really bad anxiety issues. Accordingly, she sometimes just retreated
    and disappeared and did not respond to telephone calls, including those from
    counsel attempting to set up a time for cross-examination by videoconference.

The Arguments on Appeal

[72]

The
    appellants accept that reception of the proposed evidence is controlled by the
    principles articulated in
Palmer v. The Queen
, [1980] 1 S.C.R. 759, as
    restated in
R. v. Truscott
, 2007 ONCA 575, 225 C.C.C. (3d) 321. These
    principles, articulated in greater depth below, focus on the admissibility and
    cogency of the proposed evidence, and the explanation for its absence at trial.
    The appellants recognize that where the proposed evidence is a recantation of
    trial testimony, the cogency requirement is the controlling factor. And they
    say that the proposed evidence satisfies the cogency requirement and would be
    admissible if given at trial. Due diligence is not in play in this case involving
    recantation of trial testimony.

[73]

The
    appellants begin with a brief reference to the
admissibility
requirement. Evidence from Ronnie Khananisho that:

i.

Jaime Restrepo did
not
approach him about killing Mauricio
    Castro;

ii.

he did
not
introduce Michael Allen to members of the Restrepo
    group or provide them with Allens phone number; and

iii.

the meeting in the Mississauga park involved no discussion of the murder
    of Mauricio Castro

is relevant, material and admissible were it to have
    been tendered at trial.

[74]

The
    appellants acknowledge that the reception of the proposed evidence depends upon
    satisfaction of the
cogency
requirement, which in turn is inextricably
    linked to the credibility of both the recantation and Khananishos trial
    evidence. They remind us that our role does not extend to a determination of
    the ultimate credibility of Khananisho or the reliability of his evidence, but
    whether his affidavit is sufficiently cogent to warrant admission as fresh
    evidence.

[75]

According
    to the appellants, there is good reason to believe that Ronnie Khananishos
    trial evidence was false and his recantation of it is true. Khananisho
    testified under significant pressure and with extreme reluctance. Police
    questioning of Khananisho made him aware of the essential features of the case
    for the Crown and what the police believed had occurred. Jaime Restrepo was the
    organizer. Michael Allen was the shooter. Khananisho introduced Allen to Jaime
    Restrepo. Deleon, Acosta and Jorge Restrepo were also involved. The plan was
    discussed at a meeting in a Mississauga park within weeks of the murder. Apart
    from what he learned during the police interviews, Khananisho added nothing to
    the narrative. And so, his trial evidence was neither credible nor reliable.

[76]

On
    the other hand, the appellants continue, several factors, considered in
    combination, demonstrate the cogency of the recantation. By recanting,
    Khananisho puts himself at significant risk of a prosecution for perjury, not
    to mention conspiracy to commit murder. As a statement against its makers
    interest, the recantation has about it the inherent reliability that the common
    law attaches to statements against interest. Nothing suggests any outside
    pressures or influences, as for example from the appellant Allen, about whom
    Khananisho expresses no fear. Khananisho, unlike many, has not recanted his
    recantation. Nor has his account been contradicted, as for example, by the
    trial Crown.

[77]

While
    the appellants acknowledge that some of Ronnie Khananishos responses appeared
    to contradict other parts of his evidence, they attribute his difficulty in
    answering questions to his limited vocabulary and admitted difficulties in
    reading. Neither his appearance nor his demeanour in responding to questions
    put in cross-examination disclose any inappropriate effort to appear
    convincing. His explanation for the meeting in the park  discussions about the
    drug business  reveals its commonplace nature and accounts for his earlier
    omission of any reference to the meeting in his police interviews.

[78]

What
    is more, the appellants say, had the evidence proposed for reception been given
    at trial, it could reasonably be expected to have affected the verdict. Ronnie
    Khananisho was one of three witnesses whose evidence occupied a central
    position in the Crowns attempt to prove the appellants guilt. Unlike the
    other two witnesses  Jorge Restrepo and Jorge Acosta  Khananishos evidence
    was not subject to a
Vetrovec
caution. The trial Crown emphasised
    Khananishos status as a reliable source of information, a person who was
    outside the murder partnership, thus independent of it. The trial judge
    reiterated this characterization when instructing the jury on the position of the
    Crown. Further, the only question asked by the jury during its deliberations
    sought a review of Khananishos evidence. This affords some indication that the
    jury viewed this evidence as central to the demonstration of guilt.

[79]

The
    appellants contend that Khananishos recantation lends support to the defence
    position about the unreliability of his testimony at trial. That evidence
    amounted to little more than Khananishos regurgitation of the theory of the
    police and Crown to ensure that he remained a free man. His affidavit and
    subsequent cross-examination extend beyond a mere recantation to expose the
    evidence of both Jorge Restrepo and Jorge Acosta as fabricated. The balance of
    the evidence adduced at trial does not discharge the standard of proof assigned
    to the Crown. A new trial should be the order of the day.

[80]

For
    the respondent, the application of the controlling principles established by
    the decisions in
Palmer
and
Truscott
compel the rejection of the
    recantation evidence. The evidence is not reasonably capable of belief. But
    even if it were so, the proposed evidence could not reasonably be expected to
    have affected the verdict at trial. This evidence is so highly suspect, both in
    its origins and in its substance, as to be worthless, devoid of probative
    value.

[81]

At
    the outset, the respondent reminds us, appellate courts are singularly
    reluctant to admit further evidence of witnesses who seek to distance
    themselves from the evidence they gave under oath at trial. Quite rightly,
    courts subject this evidence to strict scrutiny at every level, including a
    searching evaluation of the process leading up to the recantation, to ensure
    that it is free of taint from any party who seeks its introduction.

[82]

The
    respondent underscores the importance of considering the significance of the recanted
    trial evidence to the demonstration of guilt at trial. Here, the case for the
    Crown did not stand or fall on the evidence on Ronnie Khananisho. The heavy
    lifting was done by the two
particeps criminis
 Jorge Restrepo and
    Jorge Acosta  together with significant unimpeachable confirmatory evidence,
    such as cellphone records. The respondent says that the case for the Crown, as
    described by Jorge Restrepo and Jorge Acosta, was uncontradicted and
    comprehensive.

[83]

By
    contrast, Ronnie Khananisho, who was not even called as a witness at the
    preliminary inquiry or mentioned in the trial Crowns opening address to the
    jury, testified about four discrete issues each of which had been canvassed in
    much greater detail with Jorge Restrepo and Jorge Acosta:

i.

the drug-dealing relationship between the Restrepo group, Khananisho and
    Michael Allen;

ii.

providing Michael Allens telephone number to Jaime Restrepo;

iii.

the meeting in the park; and

iv.

the private conversation between Jaime Restrepo and Michael Allen at the
    meeting in the park.

[84]

According
    to the respondent, we should also not lose sight of the extent of the immunity
    provided to Ronnie Khananisho on the one hand, and the scope of his recantation
    on the other. The immunity agreement required truthful evidence in return for
    no prosecution for his involvement. No money. No relocation. No change of name.
    No witness protection. And the recantation was not comprehensive. Khananisho
    amplified his connections to the Restrepo group and trafficking in cocaine. His
    affidavit does not deny that Jaime Restrepo asked for help to do something to
    Mauricio Castro. And Khananisho confirmed the meeting in the park, the identity
    of the participants and the private conversations between individuals, albeit
    that he claimed that the meeting was for a different purpose. That said, within
    two weeks of the meeting, Mauricio Castro was dead.

[85]

The
    respondent raises several concerns about Ronnie Khananishos credibility and
    the reliability of his recantation. His flawed character. His inconsistent
    accounts. The implausibility of his claim that he was pressured by police and
    the Crown to provide an account that parroted their theory, given the objective
    facts of minimal police and Crown involvement and repeated admonitions to tell
    the truth. Not to mention a two-year gap between interviews.

[86]

The
    respondent rejects the appellants claim that the single question asked by the
    jury for a read-back of Khananishos evidence demonstrated the significance of
    Khananishos evidence to the determination of guilt. The jurys question
    supports no such conclusion. The defence position at trial was that
no
pre-murder meeting in the park occurred. The jury request sought a read-back,
    not of Ronnie Khananishos evidence as a whole, but only that portion which
    related to the meeting in the park. No more. No less.

The Governing Principles

[87]

The
    parties occupy common ground on the principles that control our decision on the
    admissibility of the proposed fresh evidence. Not surprisingly, they part
    company on the result the application of those principles should yield.

[88]

Our
    authority to receive or admit further evidence on appeal is statutory. Section
    683(1)(d) of the
Criminal Code
permits but does not require us to
    receive the evidence, if tendered, of any witness, including the appellant, who
    is a competent but not compellable witness.

[89]

The
    interests of justice, a phrase that signals a broad, yet not unbordered
    discretion, controls the admission of all evidence tendered for reception on
    appeal. Admission follows only after a context-sensitive inquiry into the
    totality of the circumstances:
Truscott
, at para. 81
. Here, as elsewhere
[1]
,
    the phrase interests of justice is not equivalent to the interests of the
    accused, else Parliament would have said so. To be certain, the interests of
    an accused/appellant are an integral part of the interest of justice. But
    beyond the interests of an accused/appellant in fully vindicating their
    appellate rights and pursuing their appellate remedies, the interests of
    justice also takes cognizance of the broader long-term interests of the
    administration of justice:
R. v. S. (T.)
, 2012 ONCA 289, 284 C.C.C.
    (3d) 294, at para. 114;
R. v. M.G.T.
, 2017 ONCA 736, 357 C.C.C. (3d)
    109, at para. 100;
R. v. Snyder
, 2011 ONCA 445, 273 C.C.C. (3d) 211,
    at para. 44.

[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:
Snyder
, at para. 44;
R. v. M. (P.S.)
(1992), 77
    C.C.C. (3d) 402 (Ont. C.A.), at p. 411.

[91]

Despite
    the breadth of discretion inherent in the phrase in the interests of justice,
    the discretion is structured, bordered by well-established criteria felicitously
    expressed by McIntyre J. in
Palmer
, at p. 775 (internal citations
    omitted):

(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.

See also,
R. v. Kassa
, 2013 ONCA 140, 296
    C.C.C. (3d) 353, at para. 92, leave to appeal refused, [2013] S.C.C.A. No. 283.

[92]

The
Palmer
criteria embrace three components:

i.

admissibility
 whether the evidence is admissible under the
    governing rules of evidence;

ii.

cogency
 whether the evidence is sufficiently cogent that it
    could reasonably be expected to have affected the verdict at trial; and

iii.

due diligence
 any explanation offered for the failure to adduce
    the evidence at trial and whether that explanation should affect the
    admissibility of the evidence on appeal.

See,
Truscott
, at para. 92;
Snyder
, at para.
    45.

[93]

Among
    the components  admissibility under the governing rules of evidence, cogency
    and due diligence  the first two represent or are directed at the
    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 preconditions to reception  admissibility
    and cogency  have been met. The explanation advanced for the failure to adduce
    the evidence at trial, or sometimes the absence of an explanation, can result
    in excluding otherwise admissible evidence:
Truscott
, at para. 93.

[94]

The
    cogency criterion requires answers to three questions. The first is whether the
    proposed evidence is
relevant
in that it bears upon a decisive or potentially
    decisive issue at trial. The second is whether the evidence is credible, in the
    sense that it is reasonably capable of belief. And the third is whether the
    evidence is sufficiently probative that, when taken with the other evidence
    adduced at trial, it could reasonably be expected to have affected the result:
Truscott
,
    at para. 99.

[95]

The
    cogency inquiry requires a qualitative assessment of the evidence proposed for
    admission on appeal. This evaluation must measure the probative potential of
    the fresh evidence considered in the context of the entirety of the evidence
    heard at trial and admitted on appeal. If the fresh evidence examined in this
    context could be reasonably be expected to have changed the result at trial,
    then the evidence is sufficiently cogent to justify admission on appeal:
Truscott
, at para. 100.

[96]

The
    qualitative assessment integral to the admissibility inquiry demands a critical
    evaluation of the proffered evidence and the credibility of the witness who
    provides it. This evaluation includes an assessment of the purposes for which
    the evidence is admissible:
Snyder
, at para. 51.

[97]

Sometimes,
    as here, the proposed fresh evidence involves a purported recantation of a
    witness trial testimony. A recantation can be proffered or admitted for either
    or both of two purposes:

i.

as substantive evidence; and/or

ii.

as impeachment of trial testimony.

Where the recantation is proffered as
substantive
evidence, as for example to show that an appellant was not involved in the offence(s)
    of which he was convicted, the fresh evidence must be credible. However, where
    the fresh evidence is proffered to
impeach
the trial testimony of the
    recanting witness, the potential impeachment value of the fresh evidence is not
    dependent upon belief in its truth, and rather arises from its inconsistency
    with the trial testimony on a material issue:
Snyder
, at paras. 51-53.

[98]

That
    said, where a purported recantation is tendered as fresh evidence to impeach
    the trial testimony of the witness, the credibility of the recantation is not
    irrelevant. To determine whether the recantation has sufficient impeachment
    value to warrant its admission as fresh evidence, the appellate court must of
    necessity determine what use a trier of fact could reasonably make of the recantation
    in assessing the credibility of that witness trial testimony. And in that
    assessment the credibility of the recantation is relevant:
Snyder
, at
    para. 54.

[99]

Where
    the proposed fresh evidence is a post-trial recantation of a witness trial
    testimony, there is an urgent need for a particularly rigorous qualitative
    assessment. The finality of criminal verdicts would be all too ephemeral if
    they were to fall whenever an important trial witness chose to recant their
    trial testimony:
Snyder
, at para. 61;
R. v. Babinski
(1999), 135
    C.C.C. (3d) 1 (Ont. C.A.), at para. 62.

[100]

In combination,
    the context-sensitive nature of the inquiry into the totality of the
    circumstances and the broad discretion inherent in the interests of justice
    standard belie a role for an exhaustive list of factors in assessing the
    credibility of a recantation. That said, some examples of potentially relevant
    factors include:

i.        the
    witness explanation of why he or she testified as he or she did at trial;

ii.       an
    explanation of what prompted the witness to change his or her evidence, for
    example, duress, sympathy, inducements or desire to tell the truth;

iii.      other
    relevant circumstances surrounding the recantation;

iv.      whether
    the witness has recanted under oath or its equivalent;

v.       the
    witness reputation for truthfulness; and

vi.      any
    facts, discovered after trial, which might have motivated the witness to
    fabricate evidence at trial.

See,
M.G.T.,
at para. 111.

[101]

In a similar
    way, other factors may facilitate an assessment of whether fresh evidence of a
    recantation could reasonably have been expected to have affected the result at
    trial. As for example:

i.

how directly the evidence relates to the positions of the parties at
    trial and the disputed elements of the  offence(s) in question;

ii.

whether there is a compelling case against the appellant apart from
    evidence of the recanting witness; and

iii.

where the recantation is proposed for impeachment purposes, whether the
    alleged unreliability of the witness was already before the trial court.

See,
M.G.T.
, at para. 112.

[102]

In the end, the
    overriding standard is the interests of justice, a benchmark that requires us
    to examine not only the substance of the recantation, but also its genesis:
Kassa
,
    at para. 97.

The Principles Applied

[103]

As I will explain,
    I would not admit the proposed fresh evidence because it fails to satisfy the
    cogency requirement essential to its admissibility.

[104]

To begin, as a
    recantation of trial testimony, the proposed evidence satisfies the
admissibility
requirement and the
due diligence
inquiry.

[105]

The rules of
    admissibility permit reception of evidence which, in substance, tends to show
    that the appellants were not involved in the commission of the offence of which
    they were convicted. Recantation evidence is also admissible as a statement
    inconsistent with the recanting witness testimony at trial, thus impeaching
    the reliability of the trial testimony implicating the appellants.

[106]

The explanation
    for the failure to produce the recantation at trial is self-evident. The
    recantation only came into existence years after the trial. This responds to
    the due diligence inquiry.

[107]

Some features of
    the recantation give it probative value. Unlike many, for example, Ronnie Khananisho
    has not recanted his recantation. As in many, if not most recantation cases,
    Khananisho acknowledged that his admission that he lied at trial may render him
    vulnerable to a prosecution for perjury, although this seems unlikely if for no
    reason other than the passage of time. In addition, the evidence relates to the
    single live issue at trial  the appellants complicity in the murder of
    Mauricio Castro.

[108]

But, as is well
    known and firmly established by authoritative precedent, the potential probative
    value of proposed fresh evidence on its own falls short of what is required to
    warrant its reception on appeal. We must assess the potential value of that
    evidence more holistically. And that assessment, which is of necessity
    qualitative, demands a careful evaluation of the proposed evidence, viewed in
    light of the trial evidence and the credibility of the witness whose evidence
    is put forward. We do not of course attempt to determine the ultimate credibility
    of the recanter or the reliability of the evidence, but only to determine
    whether what is proposed for admission is sufficiently cogent to warrant
    admission on appeal.

[109]

In my view,
    Khananishos recantation suffers from serious credibility issues and could not
    reasonably be expected to have affected the trial verdict.

[110]

To take first,
    the origins of the recantation.

[111]

The recantation
    did not emerge on its own, as for example, by Ronnie Khananisho coming forward
    and acknowledging that he gave false evidence under oath at trial. The
    recantation had its genesis in a visit by Emily Huard to Khananishos place of
    business, allegedly for totally unrelated reasons. Emily Huard was Michael
    Allens former girlfriend, the mother of his child. She admitted to frequent
    telephone contact with Allen, who was then and is now in custody serving a life
    sentence for first degree murder. Huards visit took place years after the
    appellants trial.

[112]

During an
    unrelated conversation, Huard raised the subject of Khananishos recantation
    about which she had heard at an unspecified time and place from a man, Luke,
    whose last name or other details she did not know. According to Emily Huard,
    Ronnie Khananisho told her to tell Michael Allen that he was willing to recant.

[113]

In this context,
    it is helpful to recall Khananishos attitude towards implicating others in the
    commission of an offence. In his police interviews, he wanted to leave the
    station without implicating anybody. He would not have testified at trial had
    he not been subpoenaed and was, at best, an uncooperative witness.

[114]

It is also clear
    that even after the alleged conversation with Emily Huard, Ronnie Khananisho
    did nothing to come forward with his concerns.

[115]

Also relevant to
    a determination of the credibility of Ronnie Khananishos recantation is his
    explanation for his trial testimony. He was aware, he said, from his brothers
    police interview about the police theory of the case, and the roles played by
    each of the participants. And so, he learned what to say to avoid the
    threatened charge of conspiracy to commit murder. The police frequently showed
    up at his home and place of work, he said, to enlist his assistance and
    reinforce the need for him to cooperate. Even his lawyer seemed to be working
    for the police and the Crown.

[116]

There is
    substantial reason to doubt the veracity of at least some of these claims by
    Ronnie Khananisho. His reputation for truthfulness at this stage of
    proceedings is suspect, to put it mildly:
M.G.T
.
,
at para. 111. His
    claims about his interactions with the police were absent from his recantation
    affidavit, raised for the first time in cross-examination, and squarely
    contradicted by Inspector Ottaways responding affidavit. His allegations that
    his counsel may have been working for the police and Crown are far-fetched,
    belied by his interactions with his lawyer before and during trial proceedings,
    and similarly contradicted by Inspector Ottaways evidence.

[117]

Although this
    might not be a case in which we can say that the recantation is completely
    incredible, it is not without its serious flaws. Its implausible origins.
    Khananishos earlier statement history. The unexplained attendance of appellate
    counsel. The 30 month gap in swearing the affidavit. Khananishos attitude
    towards implicating others.

[118]

I acknowledge that
    a recantation may have probative value  for example, as an impeachment tool
    even if doubts exist about its credibility. But in this case, the cogency of
    Khananishos recantation  which is already beset by credibility concerns  is further
    and irredeemably diminished when viewed in light of the Crowns case at trial. A
    critical component of the cogency inquiry is whether the proposed evidence is
    sufficiently probative that, when taken with the other evidence adduced at
    trial, it could reasonably be expected to have affected the verdict. On this
    issue, the recantation evidence falls well short of the mark.

[119]

First, the
    testimony of Ronnie Khananisho did not occupy a central role in the proof of
    the appellants guilt. The central witnesses in this case were Jorge Restrepo
    and Jorge Acosta. Each played an essential role in the murder plot and in its
    execution. Their testimony was corroborated by unimpeachable evidence including
    cellphone records depicting usage and locations, medical evidence about the
    number of shots and their location, and other evidence.

[120]

Second, Ronnie
    Khananisho did not provide any unique inculpatory evidence. He said nothing of
    importance that did not emerge otherwise from Jorge Restrepo and Acostas
    evidence. And, as noted earlier, the accounts of those two witnesses were
    confirmed by powerful independent evidence, including cellphone records and
    medical evidence. Instructively, Crown counsel placed significantly greater
    reliance in his closing address on the corroborative value of the cellphone
    records than on the value of Khananishos testimony.

[121]

Third,
    Khananishos unwillingness to testify, and in particular, to give any evidence
    that would incriminate anybody on trial, was on full display for all to see.
    Crown counsel had to repeatedly remind Khananisho about the statements he had
    previously given to the police. Defence counsel fully explored Khananishos
    weaknesses as a witness, both in closing and through cross-examination. The
    trial judges charge to the jury described Khananishos reluctance to testify
    at length, including in the following passage:

He was so petrified, ladies and gentlemen, that if he was in
    the dentists chair, his teeth would never have come out with an extracting
    tool. That is how petrified he was when he was asked questions  To say he was
    a reluctant witness is to state it moderately. He certainly was reluctant, he
    did not want to be here. If he had jets in his shoes, he would have been out
    that door as fast as anybody ever heard of. He would have broken every record,
    100 world dash to get out of here.

[122]

I conclude, as
    did Doherty J.A. in
Snyder
, with the admonition of McIntyre J. in
Palmer
at p. 775, also a case of recantation:

The overriding consideration must be in the words of the
    enactment the interests of justice and it would not serve the interests of
    justice to permit any witness by simply repudiating or changing his trial
    evidence to reopen trials at will to the general detriment of the
    administration of justice.

[123]

In my view, the
    recantation approaches the point of being incredible and unworthy of belief. At
    all events, I am satisfied that the recantation could not reasonably be
    expected to affect the assessment of the reliability of Khananishos testimony
    at trial or the verdict of the jury. For these reasons, the proposed fresh
    evidence lacks cogency and does not survive the strict scrutiny to which it
    must be subject:
Snyder
, at paras. 61, 63. The admission of the evidence
    would not further the interests of justice.

Conclusion

[124]

I would not
    admit the proposed fresh evidence and would confirm the decision of the prior
    panel of this court dismissing the appeal.

Released: DW May 31 2018

David Watt J.A.
I agree. C.W. Hourigan J.A.

I agree. B.W. Miller
    J.A.

[1]

As for example in s. 591(3).