COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kassa, 2013 ONCA 140

DATE: 20130308

DOCKET: C51984

Laskin, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Hailemikael Kassa

Appellant

Catriona Verner, for the appellant

Alexander Alvaro, for the respondent

Heard: May 16, 2012

On appeal from the conviction entered on December 18,
    2009 and the sentence imposed on April 12, 2010 by Justice Barry H. Matheson of
    the Superior Court of Justice, sitting with a jury.

Laskin
    J.A.:

A.

introduction

[1]

Early in the morning on January 5, 2005 someone strangled Sonia Gaudet
    to death in her Hamilton apartment.  She was 54 years old.  The Crown put
    forward a circumstantial case that the appellant, Hailemikael Kassa, was her
    killer.

[2]

On December 18, 2009, a jury found the appellant guilty of second degree
    murder.  On April 12, 2010 he was sentenced to life imprisonment with no
    eligibility for parole for 13 years.  He appeals his conviction and the period
    of his parole ineligibility.

[3]

The principal issue at trial was the identity of the killer.  The Crown
    relied primarily on the evidence of the appellants girlfriend and mother of
    his two children, Megan Fitzpatrick.  She testified that the appellant left her
    apartment between 2:00 and 3:00 a.m. on the night Sonia Gaudet was killed and
    returned around 5:00 a.m. with blood on his shirt and pants.  According to
    Fitzpatrick, the appellant said that something bad or something terrible happened
    to Sonia.  Later he threatened to stab Fitzpatrick in the stomach if she told
    the police what had happened that evening.

[4]

The Crown also relied on two other pieces of circumstantial evidence:
    cigarette butts containing the appellants DNA found in the victims apartment;
    and a video showing that a man wearing clothing similar to the clothing worn by
    the appellant that night entered the lobby of the victims building at 2:11
    a.m. on the morning of her death.

[5]

The appellant did not call a defence.  He contended that the Crowns
    case at most showed that he was present in Sonia Gaudets apartment.  It did
    not show that he had killed her.

[6]

The appellant raises six grounds of appeal against his conviction.  He
    also seeks leave to introduce fresh evidence.  The six grounds of appeal are as
    follows:

·

The verdict was unreasonable;

·

The trial judge erred in relating the evidence to the key issue
    of identity, thus rendering the trial unfair;

·

The trial judge erred by instructing the jury that they could
    rely on speculation and conjecture;

·

The trial judge erred by failing to correct misleading portions
    of the Crowns closing address;

·

The trial judge erred in his instructions to the jury on the
    appellants post-offence conduct; and

·

The trial judge erred by refusing to leave the defence of
    intoxication with the jury.

[7]

However, the main issue on the appeal is whether we should admit the
    appellants proposed fresh evidence.  After the appellant was convicted,
    Fitzpatrick recanted a critical part of her trial testimony.  She claimed that
    the appellant did not say something terrible happened to Sonia.  Later
    Fitzpatrick retracted her recantation and told the police that her trial testimony
    was true.

[8]

The appellant submits that the fresh evidence concerning Fitzpatricks
    recantation should be admitted and a new trial ordered.  He contends that
    Fitzpatricks recantation is reasonably capable of belief or, together with her
    later retraction, has substantial impeachment value in what was a tenuous Crown
    case.  The Crown opposes the admission of the fresh evidence.  It contends that
    Fitzpatrick fabricated her recantation, after having collaborated with the
    appellant.  Therefore, admitting the fresh evidence would not be in the
    interests of justice.

[9]

For the reasons that follow, I would not give effect to any of the six
    grounds of appeal from conviction.  On the fresh evidence motion, I agree with
    the Crown and accordingly would dismiss that motion.  Finally, I would not
    interfere with the 13-year period of parole ineligibility imposed by the trial
    judge.

B.

relevant background facts

(1)

The events in and around Sonia Gaudets apartment on January 4 to 5,
    2005

[10]

Sonia
    Gaudet lived in an apartment on the top floor of an 18-storey building at 95
    Hess Street South in Hamilton.  On January 4, 2005 a friend visited her around
    5:00 p.m. and a neighbour saw her in the building around 6:00 p.m.

[11]

At
    8:30 p.m., a man named Blair Chamberlain saw Sonia Gaudet outside the building.
    Chamberlain delivered alcohol for a living, and Gaudet stopped him and asked him
    to buy her a magnum of wine.  He did so.  The bottle he purchased for her was
    in an LCBO plastic bag.  He gave her the bottle but could not remember whether
    he also gave her the bag or took it with him.  However, he said that generally his
    practice was to leave the bag.  Gaudet told him that she had people coming
    over.  Chamberlain left her apartment at about 9:40 p.m.

[12]

Early
    in the morning on January 5, a man named Robert Mills arrived at the apartment
    building to deliver a newspaper.  He testified that a tall, black gentleman was
    in the lobby with him.  Mills did not clearly see the mans face but did
    observe his clothing: he was wearing a hat or toque, a dark jacket, and jeans.
    The man entered the elevator and pushed one of the top two buttons.  A surveillance
    video showed Mills and another man entering the apartment building at 2:11 a.m.

(2)

Megan Fitzpatricks evidence about the relationship between the
    appellant and Sonia Gaudet

[13]

According
    to Fitzpatrick, the appellant first met Sonia Gaudet when they both lived at 95
    Hess Street South, though in separate apartments.  She bought drugs from him,
    often calling him on Fitzpatricks cell phone.

[14]

In
    2002, the appellant slept on Gaudets couch for a few weeks.  At the time, he
    and Fitzpatrick were dating.

[15]

The
    appellant remained close with Sonia Gaudet until January 2003.  At that time,
    Fitzpatrick noted that their friendship had ended abruptly.  From January 2003
    to the date of the offence, Fitzpatrick was not aware of any contact between
    the appellant and Gaudet.

(3)

Fitzpatricks evidence about the events on January 4 and 5

[16]

Fitzpatrick
    and the appellant met in January 2000, when she was 15 and he was 18 years
    old.  Their relationship was volatile.  They had two sons together but never
    lived together.  However, the appellant often stayed with Fitzpatrick,
    occasionally for weeks at a time.

[17]

On
    January 4, 2005 the appellant was staying with Fitzpatrick in her one-bedroom
    apartment.  Fitzpatrick testified that they got into an argument about his
    infidelity, an argument that lasted two hours.  The appellant was drinking.  He
    was aggressive, angry and very intoxicated.

[18]

In
    her examination-in-chief Fitzpatrick said that the appellant left her apartment
    between two and three in the morning; in cross-examination she agreed that he
    left at approximately three oclock.  He did not tell her where he was
    going.  He was wearing a military type hat, a blue hoodie under a black jacket,
    jeans and white Phat Farm shoes.  Fitzpatricks description of the
    appellants clothing generally matched the clothing worn by the man on the
    surveillance video with one exception: the man on the video was not wearing
    white sneakers.

[19]

The
    appellant returned to Fitzpatricks apartment between five and six a.m.,
    closer to five.  He went to the bathroom, and Fitzpatrick heard the sound of
    running water.  The appellant stayed in the bathroom for five minutes, went to
    the living room and then returned to the bathroom.  He ran the water for
    another five to ten minutes.  Fitzpatrick decided to see what he was doing.
    She testified that when she looked in the washroom, she could see that he was
    scrubbing his hands.  He looked as if he had been in a fight.  Blood was on his
    shirt, on the top of his pants and underneath his finger nails.

[20]

Fitzpatrick
    asked the appellant what had happened.  He muttered something.  So she asked
    him again.  He said something terrible happened to Sonia or something bad
    happened to Sonia.

(4)

The discovery of Sonia Gaudets body

[21]

At
    about 7:50 a.m. on January 5, firefighters entered Sonia Gaudets apartment.
    There was no sign of forcible entry.  The living room was filled with heavy
    smoke.  Gaudet lay dead on the floor.  She had blood on the left side of her
    face and a horizontal ligature mark on her neck.  She also had third degree
    burns to at least half her body.  The fire investigator could not determine
    whether the fire started accidentally or was deliberately set.  He did say that
    it had burned slowly, likely for more than two hours.

[22]

Under
    a chair in the living room, police found a wicker basket containing a plastic
    LCBO bag.  The Crown later argued that this was the same bag in which
    Chamberlain brought Gaudet the magnum of wine.  In the bag were five cigarette
    butts.  Four of the butts had a mixture of saliva containing both Gaudets and
    the appellants DNA.  The fifth butt had only the appellants DNA.

(5)

The autopsy

[23]

Dr.
    Fernandes conducted the autopsy.  He concluded that Sonia Gaudet died of
    external neck compression  likely she was strangled with a ligature from
    behind.  He found a heavy nasal discharge of blood and fluid as well as from
    the mouth.  He said that in ligature strangulations blood loss is very
    common.  It results from a build up of pressure in the head.

[24]

Dr.
    Fernandes estimated that it could have taken several minutes for Gaudet to die
    by strangulation.  It may have taken 15 to 20 minutes before she stopped all
    movement.  Her own blood was found on the top she was wearing, suggesting she
    had struggled when the ligature was applied.

(6)

The appellants post-offence conduct

[25]

On
    January 5, Fitzpatrick and the appellant watched the noon news on a Hamilton
    television station.  When the story about the fire in an apartment at 95 Hess
    Street South came on the news, the appellant left the room.  He returned five
    to fifteen minutes later.

[26]

Later
    in the day the phone rang in Fitzpatricks apartment.  She checked the call
    display and told the appellant that the Hamilton police were calling.  He got
    up real fast, put his shoes on and ran out the door, saying shit, oh shit.
    At the time, the appellant was on probation and a term of his probation
    prohibited him from associating with Fitzpatrick.  Having let the phone ring
    through, Fitzpatrick called the police back and the officer told her that he
    had dialled the wrong number.  The appellant returned to Fitzpatricks apartment
    about 15 minutes later.

[27]

Fitzpatrick
    saw the appellants clothes with blood on them in a grocery bag.  On January 6,
    the appellant told Fitzpatrick that he was going to his mothers house.  He
    took the bag with his bloodied clothes.  This was unusual as typically
    Fitzpatrick did the appellants laundry.  She never saw the clothes again.

[28]

A
    few weeks later, Fitzpatrick and the appellant had an argument.  She threatened
    to go to the police and tell them what she had seen in the early morning of
    January 5.  He told her that if she did that he would stab her in the stomach.

(7)

The appellants statements

[29]

The
    police met with the appellant on March 23, 2005.  They told him that they
    wanted to speak to him about an investigation but did not say what they were
    investigating.  He volunteered: I guess this is about the Hess Street
    murder.  One of the officers asked him why he said that.  He replied that he
    had known Gaudet.

[30]

Later,
    the appellant gave a statement at the police station.  The police asked him
    when he had last had contact with Gaudet.  He said that he last saw her in
    front of her building in December 2004.  Then they asked him when he was last
    in her apartment.  He answered that it was a long time ago, probably in
    November 2004.  Finally the police asked the appellant why someone would have
    murdered Sonia Gaudet.  He ventured that maybe she ripped somebody off, I
    dont know.

C.

grounds of appeal

(1)

Was the verdict unreasonable?

[31]

The
    appellant submits that the jurys verdict finding him guilty of second degree
    murder was unreasonable.  He argues that the Crowns case did no more than put
    him at the scene.  As a matter of law, where the evidence shows no more than presence
    at the time of the offence, a verdict will be reasonable only if there is
    evidence that the accused had the exclusive opportunity to commit the crime.
    See
R. v. Yebes,
[1987] 2 S.C.R. 168, at pp. 188-9.

[32]

The
    appellant says that there is no evidence he was alone with Sonia Gaudet in her
    apartment at the time she was killed.  He points to the magnum of wine she
    brought, suggesting others were present that evening, perhaps individuals
    living in other apartments in the building.

[33]

I
    do not agree with the appellants argument.  I accept Mr. Alvaros position
    that the Crowns case did not depend on showing exclusive opportunity.  The
    Crown mounted a circumstantial case to show that the appellant was the
    murderer.  Where evidence establishes presence or opportunity, but not
    exclusive opportunity, the Crown may seek to prove the accuseds guilt by relying
    on other inculpatory evidence.  McIntyre J. made this point in
Yebes,
at pp. 188-9:

It may then be concluded that where it is shown that a crime
    has been committed and the incriminating evidence against the accused is primarily
    evidence of opportunity, the guilt of the accused is not the only rational
    inference which can be drawn unless the accused had exclusive opportunity. In a
    case, however, where evidence of opportunity is accompanied by other
    inculpatory evidence, something less than exclusive opportunity may suffice.
    This was the view expressed by Lacourcière J.A. in
R. v. Monteleone
(1982), 67 C.C.C. (2d) 489 (Ont. C.A.), at p. 493, where he said:

It is not mandatory for the prosecution to prove that the
    respondent had the exclusive opportunity in a case where other inculpatory
    circumstances are proved.

It is also supported by further comments of Martin J.A. in
R.
    v. Stevens
(1984), 11 C.C.C. (3d) 518, at p. 534
et seq
., and
    see, as well,
Imrich v. The Queen
, [1978] 1 S.C.R. 622, per Ritchie J.
    at p. 627.

[34]

Here,
    there was other potentially inculpatory evidence beyond the evidence pointing
    to the appellants presence at the scene.  That other evidence included the
    following:

·

Fitzpatricks evidence that the appellant said something bad or
    something terrible happened to Sonia;

·

The appellants post-offence conduct in disposing of the clothing
    he wore that night, and then threatening to stab Fitzpatrick in the stomach if
    she told the police what she had witnessed when the appellant returned to her
    apartment; and

·

Fitzpatricks evidence that she saw blood on the appellants
    clothing, which could possibly be traced to the blood coming out of Sonias
    nose and mouth while she was being strangled.

[35]

On
    the basis of this evidence and the other evidence from which it can be inferred
    that the appellant was in Sonia Gaudets apartment that evening (especially his
    DNA on the cigarette butts and the video of the man resembling the appellant in
    the lobby), I am satisfied that the verdict was one a jury, properly instructed
    and acting reasonably, could reach.  It was therefore not unreasonable.
    Accordingly, I would not give effect to this ground of appeal.

(2)

Did the trial judge err in relating the evidence to the issue of
    identity, rendering the trial unfair?

[36]

The
    appellant submits that in relating the evidence to the issue of identity the
    trial judge made two errors.  First, he related only the evidence pointing to
    the appellants guilt; he failed to relate any of the evidence pointing to a
    finding of not guilty.  Second, the trial judge failed to relate any evidence
    that went beyond the appellants mere presence in Sonia Gaudets apartment.  I
    do not agree with either point the appellant raises.

[37]

On
    the first point, the trial judge told the jury that identity was the key issue
    in the case.  He instructed them that to find the appellant guilty, they had to
    conclude the Crown had proven beyond a reasonable doubt that the appellant caused
    Sonia Gaudets death.  He then reviewed in some detail the evidence favouring
    the Crowns position and the defences position.

[38]

The
    trial judge pointed out the following evidence and lack of evidence favouring
    an acquittal:

·

The lack of evidence from Sonia Gaudets apartment that
    implicated the appellant as the person who strangled her to death;

·

The lack of any forensic evidence implicating the appellant  no
    fingerprints, phone records, or DNA placing the appellant in Sonia Gaudets
    apartment at the time she died;

·

The evidence from the fire marshal and firemen that neither the
    time the fire started nor whether it was accidental or set deliberately could
    be determined;

·

The absence of evidence of how many LCBO bags were in Sonia
    Gaudets apartment;

·

The expert evidence that the appellants DNA on the cigarette
    butts could have been deposited months before Gaudet was killed and was not
    necessarily deposited at the same time as Gaudets DNA;

·

The video of the lobby of Sonia Gaudets building had no
    probative value because the quality was poor and the timing was wrong; and

·

Fitzpatricks evidence about the amount of blood she saw on the
    appellants clothing when he returned to her apartment was wholly
    inconsistent with the expert blood evidence.

[39]

This
    review fairly lists much, if not all, of the evidence (and lack of evidence) raising
    a reasonable doubt whether the appellant was the killer.

[40]

On
    the appellants second point, the trial judge clearly told the jury that to
    convict the appellant, they had to determine beyond a reasonable doubt that he
    was the killer.  The trial judge related the evidence relied on by the Crown
    pointing to the appellant as the killer and then, as I have summarized, the
    evidence relied on by the defence to raise a reasonable doubt.

[41]

I
    would not give effect to this ground of appeal.

(3)

Did the trial judge err by instructing the jury that they could rely on
    speculation and conjecture?

[42]

The
    appellant argues that the trial judge improperly invited the jury to rely on
    speculation and conjecture when assessing the Crowns evidence.  He
    complains about two passages in the trial judges charge.

[43]

The
    first passage is found in a portion of the trial judges charge on the
    appellants post-offence conduct.  In instructing the jury on the possible
    reasons why the appellant left Fitzpatricks apartment when the telephone call
    display showed that the Hamilton police were calling, the trial judge said:

You have heard evidence [regarding the appellants conduct]
    after the offence was committed and here are some of them, and I am just going
    to recite them.  We had the question of Mr. Kassa leaving the apartment because
    of the call display saying that the Hamilton Police were calling.  It could be
    because he was worried about this matter, or that it was because he was on
    probation for assaulting Ms. Fitzpatrick, one of the terms of which was that he
    should not be with Ms. Fitzpatrick.
There are two explanations.  It would
    be most difficult for you to speculate on which of the two if was.
Was it
    because he shouldnt have been in the apartment and the police were coming over
    and he would be in breach, or was it because of the offence, or maybe even a
    third matter.
But you should consider all of that evidence
. [Emphasis
    added.]

[44]

This
    complaint has no merit.  The trial judge used the word speculate to suggest
    to the jury that they would have difficulty determining the real reason the
    appellant left the apartment.  If anything, the trial judges comment benefited
    the appellant.

[45]

The
    second passage is found in the portion of the charge where the trial judge
    dealt with the Crowns theory.  The trial judge said:

That is the position that the Crown has taken.  There are a
    number of conjectures and findings that are there.  You do not have to accept
    them or not but that is the argument of the Crown or the position and theory of
    the Crown.

[46]

It
    would have been preferable had the trial judge not used the word conjectures.
    But it was an isolated reference and, in the context in which the trial judge
    used the word, a harmless one.

[47]

I
    would not give effect to this ground of appeal.

(4)

Did the trial judge err by failing to correct portions of the Crowns
    closing address?

[48]

The
    appellant submits that in his closing address to the jury, Crown counsel
    mischaracterized some of the evidence and misstated the burden of proof.  The
    appellant says that the trial judge should have corrected these misstatements
    and erred by failing to do so.

(i)

Alleged mischaracterization of the evidence

[49]

The
    appellants complaint is really about the inferences the Crown asked the jury
    to draw from the evidence.  In my opinion these inferences were reasonably
    available.  I think that is evident from examining four parts of the Crowns
    closing to which the appellant objects.

(i)

The appellant argues that the Crown asked the jury to speculate in order
    to reconcile Fitzpatricks evidence that the appellant was wearing his white
    shoes with the evidence that the person on the video was not wearing white
    shoes.  The Crown said to the jury: I submit to you that because she saw them
    being washed with bleach the next day they went into her memory bank as having
    been worn the night before by the accused when he left after their fight.

[50]

Apart
    from the shoes, the clothing worn by the man on the video was very similar to
    the clothing Fitzpatrick described the appellant as wearing.  The Crown was
    entitled to argue to the jury that Fitzpatrick was wrong in her evidence that
    the appellant was wearing white shoes.  Certainly there was no evidence that
    they were the only shoes he owned.  Moreover, the Crown fairly told the jury
    you cannot make a positive identification of the accused by looking at the
    video.

(ii)

Crown counsel suggested that the video showing an individual entering
    Sonia Gaudets building at 2:11 a.m. corroborated Fitzpatricks evidence.  The
    Crown said the timing is right, its eleven minutes after Megan estimates he
    left her apartment, she said between 2:00 a.m. and 3:00 a.m.  The appellant
    contends that this part of the Crowns closing was unfairly prejudicial because
    in cross-examination Fitzpatrick estimated that the appellant left at around
    3:00 a.m.

[51]

However,
    I agree with Mr. Alvaro that the Crown was entitled to ask the jury to accept
    Fitzpatricks evidence-in-chief that the appellant left between 2:00 a.m. and
    3:00 a.m.

(iii)

Crown counsel suggested to the jury that the appellant had a motive to
    kill the deceased: she ripped somebody off.  The appellant argues that there
    was no evidence to support the Crowns theory.  In other words, the Crowns
    suggestion was pure speculation.

[52]

I
    do not think that, in context, the Crowns suggestion was unfair.  Crown
    counsel relied on the appellants own statement to the police: maybe she
    ripped somebody off.  From this statement the jury could reasonably infer a
    motive.  Moreover, the Crown also told the jury that no one knew why the
    appellant went to Sonia Gaudets apartment, though he probably went to sell her
    drugs as he had done in the past.

(iv)

Crown counsel told the jury that Sonia Gaudet was desperate for money
    that day.  The appellant submits that there was no evidence reasonably supporting
    that inference.

[53]

I
    do not agree.  Evidence was led at trial that Gaudet asked a friend for money
    and that this was unusual.  Moreover, the friend was a casual acquaintance, who
    did not even know Sonia Gaudet well enough to know that she was involved in
    drugs.  The Crown was entitled to ask the jury to infer that Gaudet desperately
    needed money, if she took the unusual step of asking for money from a casual
    friend.

(ii)

Alleged misstatement of the burden of proof

[54]

The
    appellant also submits that the Crown misstated the burden of proof in two
    ways.  First, the Crown told the jury that the case against the appellant did
    not have to be proved to a certainty.  I do not regard the Crowns statement
    to be misleading.  The trial judge told the jury that certainty meant
    absolute certainty, and I expect that is how the jury took the Crowns
    statement.

[55]

Second,
    the appellant contends that the Crown improperly told the jury that many other
    jurors have convicted accuseds of serious crimes.  Crown counsel said: the
    evidence in this case will convince you in the same way strong evidence has
    convinced other juries like you, juries who have convicted people of serious
    crimes.

[56]

The
    reference to what other juries have done on other cases was irrelevant and
    inappropriate.  However, I do not think much turns on the reference.  Any juror
    would be quite aware that some juries have convicted and other juries have
    acquitted an accused of murder.

[57]

I
    would not give effect to this ground of appeal.

(5)

Did the trial judge err in his instructions to the jury on the
    appellants post-offence conduct?

[58]

In
    his closing address Crown counsel pointed to five pieces of evidence of
    post-offence conduct:

·

The appellant left the room when a report of the murder was
    broadcast on the television news;

·

The appellant left Fitzpatricks apartment when the police called
    the next day;

·

The appellant told Fitzpatrick that if something happened to him,
    to remember that he loves her;

·

The appellant put his clothes with blood on them in a bag beside
    the door and took them with him when he left; and

·

The appellant threatened to stab Fitzpatrick if she told the
    police what she had witnessed.

[59]

The
    appellant submits that most of his post-offence conduct had little or no
    probative value.  It was as consistent with having breached the court order
    prohibiting him from having contact with Fitzpatrick as it was with his guilt
    for the offence charged.  Thus, the appellant submits that the trial judge was
    obliged to give a no probative value instruction for most of the post-offence
    conduct.  His failure to do so is a significant error.

[60]

I
    do not agree with the appellants submission.  The trial judge gave a careful
    and long instruction to the jury on the limited use of the appellants
    post-offence conduct.  He specifically referred to the two pieces of
    circumstantial evidence from which any possible inference of guilt was the
    weakest: the appellants conduct when the television report of the murder was
    broadcast and his conduct when the Hamilton police called Fitzpatricks home.
    On the former example, the trial judge did give a no probative value
    instruction; and on the second example his instruction, which I have reproduced
    earlier, effectively neutralized that evidence.

[61]

The
    other post-offence conduct  especially the most cogent example, the
    appellants threat to stab Fitzpatrick if she told the police what she had
    witnessed  was potentially relevant to the appellants culpability.  A no
    probative value instruction would not have been appropriate.

[62]

Accordingly,
    I would not give effect to this ground of appeal.

(6)

Did the trial judge err by refusing to leave the defence of intoxication
    with the jury?

[63]

Fitzpatrick
    testified that the appellant was very intoxicated when he left her apartment
    the evening Sonia Gaudet was killed.  The Crown asked the jury to infer that
    the appellant shared some wine and likely drugs with Sonia Gaudet.

[64]

The
    appellant submits that Fitzpatricks evidence and the Crowns closing gave an
    air of reality to the defence of intoxication.  Therefore, according to the
    appellant, the trial judge erred by refusing to instruct the jury on
    intoxication despite defence counsels request that he do so.  I do not accept
    this submission.

[65]

Intoxication
    may be relevant to the
mens rea
for murder because it may impair an
    accuseds foresight of consequences: see
R. v. Lemky
, [1996] 1 S.C.R.
    757, paras. 16-17. In this case, the appellant argues that although he may have
    strangled Sonia Gaudet, because of his intoxication he may not have foreseen
    that he would cause her death.

[66]

It
    seems to me that the trial judge was right not to leave intoxication with the
    jury because the evidence of the appellants drunkenness was not sufficient to
    give the defence an air of reality.  Fitzpatricks evidence about the
    appellants drinking was vague.  At one point she said he had at least two
    drinks and at another point said he had a few 40-ouncers.  But she also said
    that when he returned home in the early morning hours, though he was still
    possibly intoxicated, he wasnt stumbling or anything.  At best,
    Fitzpatricks evidence suggested that the appellant was mildly intoxicated.
    However, mild intoxication is not a defence: see
R. v. Robinson
,
    [1996] 1 S.C.R. 683, at para. 48;
R. v. Daley
, 2007 SCC 53, [2007] 3
    S.C.R. 523;
R. v. Daviault
, [1994] 3 S.C.R. 63; and
R. v. Lemky
.

[67]

Moreover,
    the appellant led no expert evidence on his level of intoxication or its
    potential impact.  And he gave no evidence about his drinking that evening.
    Finally, an intoxication defence conflicted with his fundamental defence that
    he did not kill Sonia Gaudet.  For all these reasons, the trial judge did not
    err by refusing to leave the defence of intoxication with the jury.

D.

the fresh evidence motion

(1)

Introduction

[68]

The
    appellant seeks leave to introduce as fresh evidence on the appeal Megan
    Fitzpatricks recantation of an important part of her trial testimony, her
    explanation for her recantation, her later retraction of her recantation and
    the evidence relating to that retraction.

[69]

The
    appellant submits that the recantation is admissible as substantive evidence
    that he did not kill Sonia Gaudet.  Alternatively, the appellant submits that
    the recantation and the retraction are admissible to impeach Fitzpatricks
    trial testimony, in which she implicated the appellant as Sonia Gaudets
    murderer.

[70]

The
    Crown opposes the admission of the fresh evidence.  The Crown submits that the
    recantation was false and was the product of collaboration between the
    appellant and Fitzpatrick.  As the recantation was intended to subvert the
    course of justice, admitting the fresh evidence would not be in the interests
    of justice.

[71]

To
    put these competing submissions in context I will briefly review the factual
    background giving rise to the motion and then the legal principles relating to
    fresh evidence of a recantation.

(2)

Factual background

(i)

The fresh evidence materials

[72]

The
    fresh evidence consists of: a brief affidavit of the appellant to which he
    attaches a letter he received from Fitzpatrick on April 1, 2010 (the one
    little lie letter); an affidavit from a private investigator the appellant
    retained, which includes two statements given by Fitzpatrick to the
    investigator; the transcript of the cross-examination of the investigator; the
    transcripts of two cross-examinations of Fitzpatrick; letters and draft letters
    between the appellant and Fitzpatrick; and the affidavit of a police officer, which
    includes Fitzpatricks retraction of her recantation.

(ii)

Fitzpatricks statements before trial

[73]

I
    will briefly summarize Fitzpatricks statements before trial, as they assist in
    assessing her post-conviction evidence.

[74]

Sonia
    Gaudet was killed on January 5, 2005.  Ten months later, on October 26, 2005,
    Fitzpatrick gave her first statement to the police.  She said that she had no
    memory of the night Gaudet was killed.

[75]

On
    July 5, 2006, eighteen months after Gaudet was killed, the police came to
    Fitzpatricks apartment and brought her to the station for questioning.  She
    gave another statement to the police and, for the first time, implicated the
    appellant in the murder.  She said that she had lied the previous October
    because she feared the appellant.  In her evidence at the preliminary inquiry
    and the trial, she essentially repeated, with some additional detail, what she
    had told the police on July 5, 2006.

[76]

On
    November 30, 2009, just before the trial began, the police took another
    statement from Fitzpatrick.  She told the police that she had been arguing with
    the appellants mother.  Fitzpatrick told her that the appellant was violent.
    The appellant had told Fitzpatrick that he stabbed someone in the shoulder.
    This stabbing could have occurred on January 4 or 5, or a week earlier or a
    week later.

(iii)

Fitzpatricks
    recantation

[77]

The
    appellant was convicted on December 18, 2009.  While awaiting sentencing he was
    incarcerated at the Hamilton-Wentworth Detention Centre.

[78]

On
    March 31, 2010 Fitzpatrick sent the appellant a four-page handwritten letter
    which counsel called the one little lie letter.  The appellant received the
    letter on April 1.  In the letter, Fitzpatrick expressed regret that at trial
    she had told one little lie.  She did not say what the lie was.  She told
    the appellant that she had wanted him to suffer a little but not like this.
    The letter read in part:

I wont say I said that 1 little thing as revenge, but moreso
    cuz in those days, I was still a lil scared of u, and thought u shoulda done
    more time for what you did to me, the justice system failed me there, and I
    kinda thought u shoulda been in for a longer period of time cuz what is a few
    months?  That cant change a person, so that was my only way.

Trust me, there was so many times I thought of comin clean, but
    I didnt kno how after.  To me, its like this, now this may sound bad, but 1
st
time, I say one thing, 2
nd
time I say this, and to come a 3
rd
time?  Wow, I felt as if I woulda got arrested, and who was takin care of the
    kids?

That was my 1
st
time ever dealing with something
    like this, and I went overboard, just thinking of all the fucked up shit u did
    to me, has really corrupted my mind, and Im not sayin that justifys all the
    mess thats occurred, but how do I deal with it?  And the future is what scares
    me the most now, cuz the kids will either grow up thinkin that their father is
    a bad person, a murderer or they have a mother that is crazy and selfish that
    cuz of
1 little lie
, their lives have been
    destroyed.  [Emphasis added.]

[79]

The
    appellant gave the letter to his lawyer, and his lawyer hired a private
    investigator to obtain a statement from Fitzpatrick.  The investigator was
    Thomas Klatt, a former homicide officer with the Toronto Police Force.

[80]

Klatt
    obtained two statements from Fitzpatrick, one on March 4, 2011 and the other on
    April 28, 2011.  In both her statements Fitzpatrick said that her trial
    testimony was true with one critical exception: the appellant had not said
    something terrible happened to Sonia.  Thus, Fitzpatrick recanted a key part
    of her testimony linking the appellant to the murder.

[81]

On
    July 21, 2011, the police spoke to Fitzpatrick.  She told them no one
    threatened her to recant.  She said that the appellant had phone contact with
    her children and that she had received a couple of letters from him.  She said
    that she was going to search for the letters she had kept.  The next day she
    called the police and gave them two letters and a card from the appellant.  She
    did not indicate that she had received any other letters from him.

[82]

On
    September 27, 2011, both parties cross-examined Fitzpatrick.  She continued to
    claim that the appellant had never said something terrible happened to
    Sonia.  She said that she understood she was admitting to perjury and could be
    incarcerated.

[83]

Fitzpatrick
    gave several reasons why she had lied at trial.  One reason she gave was that
    she wanted to punish the appellant for his treatment of the children and for
    assaulting her in 2005.  Another reason was that the police convinced her the
    appellant was involved in the murder and if he was involved Fitzpatrick felt he
    should be punished.

[84]

During
    her cross-examination, Fitzpatrick revealed for the first time that she had
    received approximately 50 other letters from the appellant and that they were
    at home in a box.

(iv)

The police search of Fitzpatricks home

[85]

On
    September 29, 2011, two days after she had been crossed-examined, three male
    police officers came to her apartment with a search warrant.  They thoroughly
    searched her home.  They seized a large number of letters from the appellant to
    Fitzpatrick and drafts of letters from Fitzpatrick to the appellant.
    Fitzpatrick said that she was traumatized by the search.  She claimed that one
    of the officers was unnecessarily rude to her and called her a liar.
[1]

[86]

During
    the search Fitzpatrick told the police Mike isnt worth it and that she
    wanted to give another statement.  The police explained her rights to her,
    advised her to speak to a lawyer, gave her the name of a defence counsel, and
    suggested it was better to give her statement at the station.  After speaking
    to counsel, Fitzpatrick decided not to give a statement until she had a further
    chance to talk to her lawyer.

(v)

Fitzpatricks retraction of her recantation

[87]

On
    October 12, 2011, Fitzpatrick told the police that she was willing to give a
    statement.  On October 17, she gave a statement, which was taken by Sergeant
    Reid.  No promises were given to her about future charges, except that she
    would not be charged that day.  Fitzpatrick said that Sergeant Reid has always
    been respectful towards me and she decided to come clean.

[88]

Fitzpatrick
    said that her trial testimony was true.  She had falsely recanted because she
    was raising two children by herself, she was not getting any support from the
    appellants family, and she felt some guilt for testifying against him.

[89]

Fitzpatrick
    also explained how her recantation came about.  She had written to the
    appellant and they started talking.  He told her that she was the only person
    who could help him.  She then came up with the idea of the one little lie
    letter.

[90]

On
    November 16, 2011, Klatt tried to get a statement from Fitzpatrick.  Their
    conversation was audio taped without her knowledge.  She told Klatt that her
    trial testimony was true and that the appellant put a little bit of pressure
    on her to take back her statement.

[91]

On
    November 23, 2011, both parties cross-examined Fitzpatrick for the second
    time.  During the cross-examination, she maintained that her trial testimony
    was true.  She said that she had falsely recanted because she wanted the
    appellant out of custody to help her raise the children, even though she did
    not want a relationship with him.  The one little lie letter was a
    fabrication, written as part of a plan she had developed with the appellant to
    help him win his appeal.

(3)

Legal principles

[92]

Under
    s. 683(1) of the
Criminal Code
, R.S.C. 1985, c. C-46, an appellate
    court has discretion to receive fresh evidence on appeal where it considers it
    in the interests of justice to do so.  The courts broad discretion under s.
    683(1) is structured by well-established criteria.  See
R. v. Palmer
,
    [1980] 1 S.C.R. 759, at p. 775;
R. v. Babinski
(1990), 44 O.R. (3d)
    695 (C.A.);
Reference Re Truscott,
2007 ONCA 575, 225 C.C.C. (3d) 321,
    at para. 92; and
R. v. Snyder
, 2011 ONCA 445, 273 C.C.C. (3d) 211, at
    para. 45.

[93]

Under
    this courts formulation in
Truscott
and
Snyder
, the party
    seeking to introduce fresh evidence  in this case, the appellant  must satisfy
    three criteria.  The appellant must show:

(i)      The
    proposed fresh evidence is admissible under the rules of evidence for criminal
    trials;

(ii)      The
    evidence is sufficiently cogent that it could reasonably be expected to have
    affected the verdict; and

(iii)     The
    evidence could not by due diligence have been adduced at trial (this third
    criterion will not always be strictly applied in a criminal case).

[94]

When
    the fresh evidence consists of a recantation by a key Crown witness, typically
    the appellant will have satisfied the first and third criteria, and the
    admissibility of the fresh evidence will turn on whether the second criterion,
    the cogency requirement, has been met.  That is the case here.  The recantation,
    the retraction and the evidence surrounding them are admissible under the rules
    of evidence.  Neither the recantation nor the retraction existed until after
    the trial so they could not, even by due diligence, have been adduced at
    trial.

[95]

Thus,
    the question on this motion is whether the fresh evidence is sufficiently
    cogent that it could reasonably be expected to have affected the verdict.
    Fitzpatricks recantation can meet this cogency criterion in either of two
    ways: it may be sufficiently cogent in the sense that it is reasonably capable
    of belief and therefore admissible as substantive evidence that the appellant
    was not implicated in Sonia Gaudets murder; or it may be sufficiently cogent
    in the sense that it can be used to impeach her trial testimony.  Indeed, even
    a recantation that is false may, depending on the totality of the circumstances,
    have impeachment value:  see
Snyder,
at paras. 53-54.

[96]

Here,
    the appellant tenders his fresh evidence for both purposes: either as
    substantive evidence that he is not guilty or, at the very least, for its
    impeachment value.  On either basis, he contends that the fresh evidence could
    reasonably be expected to have affected the verdict.

[97]

However,
    the overriding standard for the admission of fresh evidence on appeal is the
    interests of justice.  That overriding standard requires the court to consider
    how the recantation came about  more particularly to consider whether the
    appellant played any role in producing the recantation.  If, on a rigorous
    assessment of the fresh evidence, the recantation is shown to be the product of
    collaboration between the appellant and the recanting witness, Fitzpatrick, or
    is unacceptably tainted by the appellants influence, then its cogency is so
    undermined that it would not be in the interests of justice to admit the fresh
    evidence.  See
R. v. Kelly
(1999), 135 C.C.C. (3d) 449 (Ont. C.A.);
    application for leave to appeal quashed, [2001] 1 S.C.R. 741.  The reason is
    obvious.  An appellate court should not tolerate an appellants attempt to
    influence the evidence of a Crown witness.

[98]

Is
    then the fresh evidence sufficiently cogent to be admissible, as the appellant
    contends, or is Fitzpatricks recantation a fabrication, the product of
    collaboration and thus inadmissible as the Crown contends?

(4)

Cogency and the interests of justice

[99]

From
    one perspective, Fitzpatricks trial testimony appears credible and reliable.
    She had nothing to gain by implicating the appellant in Sonia Gaudets murder
    and seemingly, much to lose.  She loved him and she relied on him for support.
    If she had wanted falsely to implicate the appellant out of spite or
    vindictiveness or to punish him, one might have expected her to concoct a
    statement far less subtle than something terrible happened to Sonia.  She
    could simply have said that the appellant told her he had killed Sonia Gaudet.
    Instead, she attributed to him a statement whose significance she likely did
    not understand when she disclosed it to the police.

[100]

Yet from another
    perspective, Fitzpatricks trial testimony raised some concerns.  The jury seems
    to have had difficulty with it.  They asked for it to be reproduced in writing,
    and then they had to be exhorted before reaching a verdict.

[101]

Moreover, Fitzpatricks
    trial evidence was not independently corroborated.  Even the surveillance video
    was at odds with parts of her testimony.  She claimed that the appellant was
    wearing his white running shoes; the man in the video did not have white
    shoes.  And, although in her examination-in-chief Fitzpatrick said that the
    appellant left her apartment between 2:00 and 3:00 a.m., in cross-examination
    she agreed that he had left closer to 3:00 a.m.; the surveillance video showed
    a man entering the lobby of Sonia Gaudets building at 2:11 a.m.

[102]

Viewed in the
    light of the concerns about Fitzpatricks trial testimony  and putting aside
    the Crowns contention that her recantation was fabricated  the fresh evidence
    taken as whole would have substantial impeachment value.  Indeed, it would
    provide several avenues to impeach the credibility of Fitzpatricks evidence at
    trial.

[103]

The recantation
    itself, Fitzpatricks explanation of how it arose, why she fabricated her
    trial evidence, and her retraction of the recantation call into question her
    respect for the oath.  Further, as even the Crown acknowledges, Fitzpatricks
    evidence in the fresh evidence proceedings is replete with inconsistencies  a fertile
    basis to challenge her credibility.

[104]

The fresh
    evidence would also yield an opportunity to impeach directly parts of
    Fitzpatricks trial testimony and provide an alternate explanation for some of
    the more damaging evidence against the appellant.  The most notable example
    concerns Fitzpatricks evidence that the appellant told her that he had stabbed
    someone.  At trial she said that he told her the stabbing likely occurred a
    week before or a week after Sonia Gaudet was killed, though possibly it could
    have occurred the same night.  However, when she was cross-examined during the
    fresh evidence proceedings, Fitzpatrick responded that the appellant told her
    he had stabbed someone the night Sonia Gaudet was killed.  The timing of the
    stabbing is important; it arguably could account for the blood on the
    appellants clothing and even for some of his post-offence conduct.

[105]

I would admit
    the fresh evidence for its impeachment value were I not persuaded that
    Fitzpatricks recantation was fabricated and the product of collaboration
    between her and the appellant.  However, I have concluded that Fitzpatricks
    recantation was fabricated and that it resulted from collaboration between
    Fitzpatrick and the appellant or at least from the appellants unacceptable
    influence.  Fitzpatrick confirmed that to be so in her retraction.  But I would
    come to this conclusion even without considering the retraction.

[106]

The first
    outward manifestation of Fitzpatricks recantation was the one little lie
    letter.  Apart from Fitzpatricks comments to Klatt on November 16, 2011
[2]
,
    there is no direct evidence that the appellant asked Fitzpatrick to write this
    letter  to recant  and no direct evidence that he overtly pressured her to do
    so.  The one little lie letter was either Fitzpatricks idea, as she
    initially told the police, or the idea of both her and the appellant, as she
    later said in cross-examination. In my opinion, whatever its origin, it was the
    product of collaboration between the two of them or at the very least came
    about because of the appellants unacceptable influence.  The letter was a
    concoction  a concoction that Fitzpatrick maintained, with the appellants
    encouragement, until the police searched her home in late September 2011.

[107]

Many pieces of
    circumstantial evidence, taken together, overwhelming lead to this conclusion.
    The pieces of evidence I rely on are as follows:

·

The appellant and Fitzpatrick had extensive communications with
    each other while he was incarcerated;

·

The appellant and Fitzpatrick tried to hide the extent of their
    communication from the authorities;

·

Fitzpatrick changed her story and recanted only after she had
    re-established contact with the appellant;

·

The appellant reconciled with Fitzpatrick before March 31,
    2010, the date she wrote the one little lie letter;

·

The appellant made numerous promises to Fitzpatrick;

·

The appellant had great influence over Fitzpatrick;

·

The one little lie letter gives the false impression that
    Fitzpatrick had not spoken to the appellant since he was convicted; and

·

Fitzpatrick retracted her recantation after the police searched
    her house on September 29, 2011.

(i)

The appellant and Fitzpatrick had extensive communications while he was
    incarcerated

[108]

While the
    appellant was in jail, he and Fitzpatrick had extensive contact with each
    other.  They communicated in person, by telephone and in writing.  Their communications
    took place both before and after Fitzpatrick wrote the one little lie letter,
    and at a time when both knew the appellant was appealing his conviction.

Visits

[109]

In 2010
    Fitzpatrick visited the appellant five times at the Hamilton-Wentworth Detention
    Centre  twice in February  that is, before she wrote the one little lie
    letter  and three times after she wrote the letter.

Telephone calls

[110]

The
    Hamilton-Wentworth Detention Centre does not keep logs of telephone calls.
    However, in her post-conviction testimony, Fitzpatrick acknowledged that while
    the appellant was jailed there, they telephoned each other.  While the
    appellant was in Millhaven (between May 5 and August 10, 2010), he telephoned
    Fitzpatrick regularly, using a telephone card.  And while he was at Kingston
    Penitentiary (from October 30, 2010 to May 1, 2011) he placed 203 calls to
    Fitzpatrick, including a nine-minute call the day before Fitzpatrick provided
    her second statement to Klatt.

Correspondence

[111]

The appellant
    and Fitzpatrick also exchanged a great deal of correspondence after he was
    convicted.  The appellant disclosed to the Crown five letters from Fitzpatrick
    (including the one little lie letter) and said in his affidavit that she
    wrote him 20 letters. Fitzpatrick voluntarily turned over to the police two
    letters and a card from the appellant.  However, when the police searched her
    home on September 29, 2011, they seized a large number of letters from the
    appellant to Fitzpatrick and drafts of letters from her to the appellant.

(ii)

The appellant and Fitzpatrick tried to hide the extent of their
    communications from the authorities

[112]

In support of
    his motion to admit fresh evidence, the appellant filed a brief affidavit.  He
    confirmed receipt of Fitzpatricks one little lie letter and said that while
    incarcerated he had received 20 letters from Fitzpatrick.  He turned over to
    the police the one little lie letter and four others.  He did not disclose or
    explain the whereabouts or contents of the other letters.  It could be inferred
    that these letters were destroyed or withheld because they undermined his
    position.

[113]

Of more
    significance, the appellant did not disclose that before receiving the one
    little lie letter, he had already exchanged letters with Fitzpatrick, spoken
    with her on the telephone and met with her twice.  The appellant and
    Fitzpatrick likely realized that if they disclosed these contacts they would
    put the recantation under great suspicion.

[114]

Further, the
    appellant did not disclose that after he was moved to a penitentiary, he
    regularly sent Fitzpatrick letters and spoke to her many, many times.

[115]

Fitzpatrick,
    too, appears to have tried to hide from the authorities her contacts with the
    appellant.  Until confronted with the jail records, she told no one that she
    had visited the appellant at the Hamilton-Wentworth Detention Centre.

[116]

In April 2011,
    Fitzpatrick told Klatt that she had spoken to the appellant only briefly by
    phone.  In July 2011, she told the police that the appellant had talked to
    their children on the phone and that she had received a couple of letters
    from him.  In her cross-examination on September 27, she claimed that from
    October 2010 to April 2011 she and the appellant werent really speaking good
    terms.  Yet that was the very period during which the appellant spoke to her
    by phone over 200 times.  Many of these calls were lengthy.

(iii)

Fitzpatrick changed her story only after she had re-established contact
    with the appellant

[117]

The appellant
    was convicted on December 18, 2009.  In January 2010 before visiting him in
    jail, Fitzpatrick wrote him a letter that undermines the veracity of her later
    recantation.  The appellant did not give this January letter to the
    authorities.  However, the police found drafts of it when they searched Fitzpatricks
    home in late September 2011.  In the letter, she writes to the appellant that
    she was telling the truth at trial, that he knew she was telling the truth, and
    that in testifying she did the right thing.  Her draft letter reads in part:

Ive been thinking about this a lot lately and Im unhappy, sad
    and a lil angry that my name is all over the paper and Im portrayed as
    vindictive.  Mike, you should kno that this didnt happen because of that.  I
    kno thats what a lot of people (your family) (your lawyer) are thinking, and
    Im willing to deal with this NEGATIVITY because I kno, and you know what
    happened.  And thats all that matters to me at the end of the day.

It would really hurt me if thats what you thought.  You kno
    EVERYTHING you told me and you kno what u did.  So I am here confused as to why
    Im the only person being blamed.  But, like I said, Im willing to deal with
    it.  Please believe when I say that I never thought this woulda been the end
    result.  No one did.  And when I heard, I cried + cried.  People would call me
    crazy for feeling the way I do, but you are still the father of my kids.  Im
    tired of people telling me that I should be happy that you deserve this and I
    did the right thing.  In the legal aspects I did, but other than that.

[118]

On November 23,
    2011, Fitzpatrick testified that she did eventually send a version of this
    letter to the appellant in January 2010. When asked what she meant by her
    comments in the draft, she replied:

That me and him both know, like, the truth. He knows what he
    told me. He knows at trial I was saying the truth

[119]

Then,
    Fitzpatrick visited the appellant in jail on February 19 and again on February
    28, 2010.  And she began having telephone conversations with him.  Only after
    she had re-established contact with the appellant did she change her story and
    produce her recantation.  The timing of the recantation alone gives rise to the
    inference that she and the appellant collaborated on it.

(iv)

The appellant reconciled with Fitzpatrick before March 31, 2010, the
    date she wrote the one little lie letter

[120]

The fresh
    evidence material strongly suggests that the appellant and Fitzpatrick had
    reconciled while he was at the Hamilton-Wentworth Detention Centre and before
    she wrote the one little lie letter at the end of March 2010.  She visited
    him twice in February.  In May he sent a card to celebrate their anniversary.
    In words enclosed by a heart shape, he wrote: February + May, 3 months of
    luv.

[121]

Their
    reconciliation coincided with a plea from the appellant to Fitzpatrick  that
    she was the only person who could help him with his appeal:

Im sorry if I made you lose sleep over what I said but were
    going through some hard times right now and its not easy to tell you how it is
    or how Im feeling without it soundin mean or putting the blame on you.  I
    dont blame you for nothing and you know that. Im just happy to be talking to
    you again and know your o.k.  I just wish I would of tried to get a hold of you
    sooner and maybe things would be different.  But its to late for that anyway.
    But I really need you right now.
Your the only one who
    can help me.
It puts you in a fucked up position but thats the truth
    of it.  If you dont want to thats fine.  Ill always love you no matter what.
    [Emphasis added.]

[122]

Then on March
    31, 2010, one day before he received Fitzpatricks one little lie letter, the
    appellant wrote to her, clearly responding to a previous letter she had written
    to him.  What he said to her  the words he used  were hardly what one would
    expect him to say to a person mainly responsible for putting him in jail.  He
    wrote:

Hey baby, Your letter made me feel so good.  Every time I get
    one from you I feel so much better.  And I love the pictures, your so
    beautiful.  I love looking at you cuz your my wify and your so sexy. I cant
    wait to be with you again.  Baby, words cant describe how much I love you.  I
    usually got words for everything but for once Im speachless to describe my
    love for you.  Its like you were made for me only.  Your probably the best
    babymoms a nigga could have.  I appreciate all that you have done and holdin it
    down while I was gone.  The kids look fresh to def.  Im so blessed to have a
    girl like you.  Nothing your doing or did for our family goes unoticed.  I owe
    you the world and your gonna get yours, I promise.  I know talk is cheap but
    all I got are words
for now
! [Emphasis in
    original.]

[123]

The tender
    language of this letter makes no sense unless the appellant wrote it knowing
    that Fitzpatrick was about to recant her trial testimony. Moreover, by
    underlining the words for now, he implies he expects that he soon will be out
    of jail.

(v)

The appellant made numerous promises to Fitzpatrick

[124]

Even though
    Fitzpatricks testimony was the main reason the appellant was incarcerated, his
    letters to her contained numerous effusive expressions of his love for her and
    promises to her.

[125]

The appellant
    promised to marry Fitzpatrick; he promised that he had changed, he was a new
    person, and he was a better man; he promised that he would be faithful and
    stop lying; he promised to respect her and stop being abusive to her; he
    promised to be a family and a good father to their children; and he promised
    to get a job and help support her and the two boys.

[126]

One can reasonably
    infer that the appellant made these promises to bring Fitzpatrick onside and
    persuade her to carry out and maintain her recantation.  He told her things he
    thought she wanted to hear, even though he may have had no intention of
    fulfilling these promises.

[127]

Indeed, when the
    appellant made these promises to Fitzpatrick, he seems to have been carrying on
    a relationship with another woman, Ashley Dore.  In his letter to Fitzpatrick
    on March 31, 2010, the appellant enclosed a letter Ms. Dore had sent him.  He
    wrote to Fitzpatrick: Im only sending it cuz I love you and want to make you
    happy.  But trust me I have no feelings at all for her and I dont talk to her
    any more.  Yet Ashley Dore had visited the appellant at the Hamilton-Wentworth
    Detention Centre ten times and he tried to call her several times from the
    penitentiary.

(vi)

The appellant had great influence over Fitzpatrick

[128]

The numerous
    promises the appellant made to Fitzpatrick must be viewed in the context of the
    appellants great influence over her.  By the time of trial, Fitzpatrick had
    known the appellant for 10 years.  He was the father of her two sons.  She
    relied on him for the support of these two children.  And even though he had not
    been faithful to her, had been abusive towards her, and had shown little
    inclination to help her raise the children, her emotional bond with the
    appellant remained very strong.

[129]

Fitzpatrick had
    no contact with the appellant between December 2005 and February 2010.  Yet she
    obviously felt considerable guilt for having testified against him, and more
    important, she never stopped loving him.  That she continued to love the
    appellant is evident in her letters to him while he was in jail.  On June 18,
    2010, she wrote: Ill never love anyone more than u ever.  A week later, she
    wrote again: since the day I met u I havent been able to have love for anyone
    else

[130]

As early as
    April 2010, Fitzpatrick wanted to marry the appellant.  She became excited
    about the prospect of being his wife and having him in her life again.  In an
    undated letter likely written in November 2010 she pledged her love to him,
    referred to him as an addiction and signed it Megan Kassa.

[131]

One can readily
    infer that the appellants many promises to Fitzpatrick would have had great
    impact on a woman who was so emotionally vulnerable, so dependent on him for
    support, and so much in love with him.  The appellant knew the impact of his
    promises and used them to obtain what he wanted: that Fitzpatrick recant her
    trial testimony.

(vii)

The one little lie letter gives the false impression that Fitzpatrick
    had not spoken to the appellant since he was convicted

[132]

Fitzpatrick
    wrote the one little lie letter on March 31, 2010.  By then she had visited
    the appellant twice in jail and talked to him numerous times on the telephone.
    The letter does not mention these contacts at all.  Instead, it conveys the
    false impression that Fitzpatrick had not spoken to the appellant since his
    conviction.  Fitzpatrick writes:

Well, Im writing this to you cuz of my feelings and the fact
    that u never got to hear my side of it all.

Then later in the letter she writes:

My lifes messed up, and it really pissed me off the last time
    I talked to you in 05, u said that if you couldnt be with me, you were gonna
    forget about the kids.

[133]

I agree with Mr.
    Alvaro that from these passages one can infer the letter was intended for an
    audience other than the appellant.  Indeed, it is significant that in all the
    correspondence between the appellant and Fitzpatrick, no other letter contains
    any reference to Fitzpatricks having lied at trial.

(viii)

Fitzpatrick
    retracted her recantation after the police searched her house on September 29,
    2011

[134]

The police
    searched Fitzpatricks house on September 29, 2011.  Shortly afterward,
    Fitzpatrick decided to come clean.  She retracted her recantation and
    affirmed that her trial testimony was true.  The timing is no coincidence.

[135]

During the
    search, the police seized letters and drafts of letters between Fitzpatrick and
    the appellant, which she had not previously disclosed.  As I have said earlier,
    one of these draft letters was dated January 2010, before she had
    re-established contact with the appellant.  In it she tells the appellant
    unequivocally that her trial testimony was true and he knew it to be true.  As
    much as any other single piece of evidence this draft letter shows her later
    one little lie letter to be a fabrication.

(5)

Conclusion

[136]

Because
    Fitzpatricks recantation was fabricated and was the product of collaboration
    between her and the appellant or at least the product of the appellants
    influence, it does not meet the cogency criterion.  Moreover, as the
    recantation was intended to subvert the course of justice, it would not be in
    the interests of justice to admit the fresh evidence.  I would therefore
    dismiss the appellants motion.

E.

the sentence appeal

[137]

The trial judge
    imposed a period of parole ineligibility of 13 years, three years above the
    minimum.  In imposing this period the trial judge relied on the following
    aggravating considerations:

·

The way Sonia Gaudet was murdered: by strangulation which took
    place over a number of minutes, maybe as much as five;

·

The appellants extensive criminal record;

·

The appellants several breaches of probation orders;

·

The appellants attempt to hide his clothing; and

·

The appellants threat to stab Megan Fitzpatrick if she disclosed
    to the police what she had seen.

[138]

The appellant
    argues that the trial judge erred in principle by relying on the manner of
    death as aggravating because the Crown did not prove beyond a reasonable doubt
    that the strangulation lasted for several minutes.  The appellant submits that as
    he is a youthful offender (23 years old when Sonia Gaudet was killed), with a
    supportive family and good prospects for rehabilitation, the statutory minimum
    parole ineligibility period of 10 years is sufficient punishment.

[139]

I do not think
    that the trial judge erred in relying on the manner of death as one
    consideration justifying an increase in the parole ineligibility.  The trial
    judge relied on Moldaver J.s observation in
R. v. Brooks
, [1993] O.J.
    No. 1396 (Gen. Div.): death by ligature strangulation can only be described as
    grotesque.  In other words, death by strangulation, no matter how long it
    lasted, is an aggravating circumstance.  Also, in this case, the evidence
    strongly suggested that the strangulation lasted several minutes.  Dr.
    Fernandes testified that Gaudet was likely strangled with a ligature from
    behind, that it could have taken several minutes for her to die and typically
    one sees four or five minutes of purposeful activity.

[140]

The trial judge
    fairly took into account the mitigating considerations favouring a shorter
    period of ineligibility: the appellant has made efforts to rehabilitate
    himself; he is a relatively young man; he has cooperated with the authorities
    while in custody; and he has been a good and supportive father to his children.

[141]

Ultimately, however,
    the trial judge was persuaded that the catalogue of aggravating considerations
    he listed justified a three year increase.  I cannot say that he exercised his
    discretion unreasonably.  Accordingly, though I would grant leave to appeal
    sentence, I would dismiss the sentence appeal.

F.

conclusion

[142]

I would dismiss
    the appellants conviction appeal, his motion to introduce fresh evidence, and
    his sentence appeal.

[143]

The appellants
    main ground of appeal against conviction is that the verdict is unreasonable.
    I would not give effect to that ground or to the other grounds of appeal that
    he raises.

[144]

The appellant
    collaborated on or influenced Fitzpatricks recantation.  The recantation
    itself was fabricated.  It would therefore not be in the interests of justice
    to admit the fresh evidence.

[145]

The trial judge
    did not exercise his discretion unreasonably in imposing a period of parole
    ineligibility of 13 years.  Accordingly, I would dismiss the appellants sentence
    appeal.

Released: Mar. 8, 2013

JL                                                                             John
    Laskin J.A.

I
    agree E.A. Cronk J.A.

I
    agree S.E. Pepall J.A.

[1]
The officer was not Sergeant Reid, who took her retraction statement in October
    2011.  See paras. 87-88.

[2]
See para. 90.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Larmond, 2013
    ONCA 150

DATE: 20130312

DOCKET: C54922

Rosenberg, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Larmond

Appellant

Delmar M. Doucette, for the appellant

J. Sandy Tse, for the respondent

Heard and released orally: March 7, 2013

On appeal from the conviction entered on October 18, 2011
    by Justice Edward P. Belobaba of the Superior Court of Justice, sitting with a
    jury.

ENDORSEMENT

[1]

We agree that the trial judge was not required to give his opinion as to
    the strength of the evidence, but as the trial judge and the parties
    interpreted the question, it could be answered by pointing to the critical
    evidence in the case, without expressing an opinion.

[2]

Whether a question has been adequately answered depends on the context.
    An important contextual factor in this case was that the trial judge had not
    reviewed the evidence in his charge.  Since after a day of deliberation the
    jury was having difficulty with appreciating the significant parts of the
    evidence, the trial judge should have at least identified those parts of the
    evidence, such as the critical importance of McCallums original identification
    and Simmonds identification evidence.

[3]

This was not a strong Crown case, and we have not been persuaded that
    this error did not result in a reversible error. This is not a safe case to
    apply the proviso in s. 686(1)(b)(iii).

[4]

Accordingly, the appeal is allowed, the conviction set aside and a new
    trial ordered.

M. Rosenberg J.A.

R.G. Juriansz J.A.

Gloria Epstein J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Martynovych, 2013
    ONCA 193

DATE: 20130328

DOCKET: C56275

Simmons, Cronk and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lyudmyla Martynovych

Appellant

Sam Scratch, for the appellant

Jason M. Mitschele, for the respondent

Heard: March 25, 2013

On appeal from the judgment of Justice I. Nordheimer of
    the Superior Court of Justice, dated October 22, 2012, dismissing an
    application for
certiorari
, to quash the committal order of Justice R.
    Schneider of the Ontario Court of Justice, dated September 14, 2011
.

APPEAL BOOK ENDORSEMENT

[1]

The appellant concedes that there was evidence before the preliminary
    inquiry judge capable of supporting the inference that she was resident at the
    two apartments in question, at least intermittently, together with her
    co-accused.

[2]

The reviewing judge concluded, in part:

There was ample evidence from which a trier of fact could draw
    the inference that the [appellant] was a party to drug trafficking simply from
    the items found in the two apartments.  Given the number of drug-related items
    that were found in both apartments and the fact that they were spread
    throughout the common rooms of the apartments, it is a possible and reasonable
    inference that the [appellant] had knowledge of those items.

[3]

We agree.  Regardless of the drug transactions allegedly carried out by
    the appellants co-accused, the circumstantial evidence of the cash, drugs and
    drug paraphernalia found in the two apartments, coupled with the evidence of
    the appellants residency in the apartments, constituted some evidence of
    knowledge and control by the appellant sufficient to meet the test for
    committal for trial on all charges against the appellant.  We note with respect
    to the drugs found in the eyeglasses case in the car driven by the co-accused,
    that there was evidence before the preliminary inquiry judge that the car in
    question was registered in the appellants name and, further, that the
    appellant accompanied the co-accused in the car throughout the day in issue.

[4]

The appeal from the dismissal of the appellants application for
certiorari
,
    to quash her committal for trial, is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mention, 2013 ONCA 204

DATE: 20130328

DOCKET: C53643

Simmons, Cronk and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isaac Omar Mention

Appellant

Roger Shallow, for the appellant

Aaron Prevost, for the respondent

Heard: March 28, 2013

On appeal from the conviction entered on January 14, 2011
    and the sentence imposed on April 21, 2011 by Justice J. Skowronski of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

On our review of the record, the trial judge instructed himself
    correctly relating to the issue of credibility and did not misapprehend the
    evidence in any material way.

[2]

As we read his reasons, the trial judge rejected the appellants denial
    of the allegations because he found it self-serving. We see no basis on which
    to interfere. The conviction appeal is dismissed.

[3]

As for the sentence appeal, in our view, the global sentence imposed was
    at the low end of the range for the nature of the offences because the trial
    judge took account of the mitigating factors present. In the circumstances, we
    would not interfere with his failure to impose a conditional sentence. Nor
    would we interfere with his decision to impose a concurrent sentence for the
    uttering threats offence. Leave to appeal sentence is granted but the sentence
    appeal is dismissed. The Crowns request is declined.


COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Murray, 2013 ONCA 173

DATE: 20130321

DOCKET: C54397

Sharpe, Watt and Hoy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Murray

Appellant

Gregory Lafontaine, for the appellant

Joan Barrett, for the respondent

Heard and released orally: March 18, 2013

On appeal from the conviction entered by Justice Edward
    J. Koke of the Superior Court of Justice, sitting without a jury, on June 22,
    2011, with reasons reported at 2011 ONSC 3735, 17 M.V.R. (6th) 29.

ENDORSEMENT

[1]

The appellant was convicted of impaired driving causing bodily harm,
    over 80 causing bodily harm, and dangerous driving causing bodily harm. He
    was sentenced on the over 80 causing bodily harm count and the other counts
    were stayed pursuant to the
Kienapple
principle.

[2]

The appellant appeals his convictions.

[3]

First, he challenges the validity of the search warrant to obtain the
    result of blood testing at the hospital following the incident giving rise to
    these charges. The appellant submits that there is nothing in the information
    to obtain the warrant to indicate that the hospital would test or had tested
    the appellants blood for blood alcohol content.

[4]

In our view, the details of the incident recited in the information to
    obtain, including evidence that alcohol was present in the vehicle, the
    behaviour of the appellant and the fact that the appellants breath smelled of
    alcohol, when combined with his presence at the emergency department for
    treatment, were sufficient to provide a basis for a reasonable inference that
    the hospital would test the appellants blood for alcohol as a matter of course
    in determining how best to treat him medically.

[5]

The second point raised by the appellant also relates to the blood
    alcohol test at the hospital. The appellant submits that the trial judge erred
    in admitting or giving any weight to the evidence of the result of the lab test
    to determine blood alcohol content because the hospital lab technician called
    to introduce that evidence provided no details as to the equipment used or as
    to its reliability.

[6]

We disagree with that submission. We see no error in the trial judges
    reasons, which were as follows:

In assessing how much weight I am to place on the test results,
    I am compelled to consider not only the fact that the testing was conducted by
    a qualified technologist, but also the fact the laboratory in which the testing
    equipment was located and in which the testing and analysis was performed was
    in a large urban hospital. This laboratory was designed to service doctors and
    other trained medical professionals. It is implicit that these medical
    professionals were prepared to rely on the laboratory results to make their
    decisions, decisions which impact the health, and sometimes the life of
    hospital patients. It is also implicit that a laboratory which is designed and
    operated for these purposes will use reliable and well maintained and
    calibrated equipment.

On these facts, I am prepared to find that the test results are
    acceptable form the standpoint of accuracy and reliability. In making this
    finding, I accept the submission of the defence that I must make this finding
    on the criminal standard of proof and I so find.

[7]

We agree with the appellant that there were fewer details provided as to
    the test than in
R. v. Redmond
(1990), 54 C.C.C. (3d) 273 (Ont. C.A.),
    but in our view the principle relied on in
Redmond
and, in particular
    the law as stated in
Wigmore on Evidence
, vol. 2 (Chadbourn Rev., 1979),
    s. 665(a), at pp. 917-19 was satisfied:

The use of scientific instruments, apparatus, formulas, and
    calculating tables, involves to some extent a dependence on the statements of
    other persons, even of anonymous observers. Yet it is not feasible for the
    professional man to test every instrument himself; furthermore he finds that
    practically the standard methods are sufficiently to be trusted. Thus, the use
    of an X-ray machine may give correct knowledge, though the user may neither
    have seen the object with his own eyes nor have made the calculations and
    adjustments on which the machines trustworthiness depends. The adequacy of
    knowledge thus gained is recognized for a variety of standard instruments. In
    some instances the calculating tables or statistical results are admitted
    directly, under an exception to the hearsay rule. [Citations omitted.]

[8]

Other grounds of appeal raised in the factum were abandoned in oral
    argument.

[9]

Accordingly, the appeal from conviction is dismissed.

Robert J. Sharpe J.A.

David Watt J.A.

Alexandra Hoy J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Murray, 2013 ONCA 178

DATE: 20130325

DOCKET: C52695

Rosenberg, Juriansz and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Murray

Appellant

Dale Ives, for the appellant

Grace Choi, for the respondent

Heard: March 4, 2013

On appeal from the conviction entered on September 19,
    2008 by Justice D.A. Harris of the Ontario Court of Justice, sitting without a
    jury.

ENDORSEMENT

[1]

The appellant was convicted of assault with a weapon, uttering threats,
    and forcible confinement, in a domestic setting. The complainant was his
    fiancée who lived with him. The complainant deliberately failed to attend court
    for his trial. A videotaped
K.G.B.
statement she had given to the
    police was admitted at trial and was the main evidence against him. He appeals
    on the basis that he never had the opportunity to cross-examine her.

[2]

In order to succeed, the appellant must establish that the trial judge
    erred by finding the hearsay statement reasonably necessary, and sufficiently
    reliable to be admitted despite the lack of cross-examination.

[3]

The events for which the appellant was charged occurred on December 31,
    2007 and January 1, 2008. On January 4, 2008, the complainant provided a sworn
K.G.B.
statement to the police.

[4]

The matter was first set for a trial to begin on March 6, 2008, but the
    Crown applied for an adjournment. The complainant was not in court and the
    police had not yet personally served her with a subpoena. The police had
    information that after the events, she was staying at a brothers home in
    London. The brother indicated to the police that the complainant had gone to
    stay with her mother in Sault Ste. Marie, and that she was no longer willing to
    testify in court. On February 29, 2008, a detective had called the mothers
    house. Another brother advised he could not put the police in touch with the
    complainant, and stated she would go even further into hiding if she knew the
    police were trying to contact her. The police couriered a subpoena to the Sault
    Ste. Marie police to serve upon the complainant.

[5]

Also in support of its request for an adjournment, the Crown called a
    witness from the Victim Witness Assistance Program. She testified that the
    complainant wanted the charges against the appellant dropped. As a result, the
    witness arranged an appointment for some time in mid-February for the
    complainant to meet with the Crown. The witness left several messages for the complainant
    but was not able to get in touch with her. On March 6, 2008, before court, the
    witness spoke with the complainants mother who told her that she did not know
    the complainants location and that she believed the complainant would not
    attend court.

[6]

The appellant called his mother who identified nine emails from the complainant.
    These indicated that the complainant still loved the appellant and would not
    attend court on the trial date. They also suggested that the complainant had
    been communicating with the appellant and had visited him at the jail. In a
    typed attachment to one of the emails, the complainant had recanted her
K.G.B.
statement. The appellants mother did not know where the complainant was.

[7]

Appellants counsel consented to a short adjournment to March 18, 2008,
    so that the Crown could take further steps to secure the complainants
    attendance at trial.

[8]

On March 18, 2008, the Crown was no closer to having the complainant
    attend at trial. The Crown applied to have the complainants oral statements to
    the police officer and her videotaped
K.G.B.
statement admitted as
    evidence. The trial judges admitted the K.G.B. statement but refused to admit
    the oral statements the complainant made to the police officer.

[9]

The Sault Ste. Marie police substitutionally served the complainant by
    leaving a copy of the subpoena at her mothers home on March 3, 2008. A
    detective was in touch with the complainants mother in Sault Ste. Marie on
    March 7, 2008. The mother advised that the complainant had gone into hiding,
    did not want to be subpoenaed or attend court and the police were not going to
    find her by calling the mothers house. On March 14, 2008, the police asked the
    detention center to contact them if the complainant visited the appellant.

[10]

In
    the
K.G.B.
statement the complainant described a prolonged altercation
    that was consistent with injuries evident in photographs taken. She described how
    she was beaten with a rope, and the threats the appellant had made to her and
    members of her family. Photographs taken by the police showed numerous bruises
    on the complainants legs, arms and back, and a dark bruise on her right eye.
    The front door of the residence that the appellant and the complainant shared
    showed damage consistent with it being kicked in as the complainant described.
    In the residence, the police found an undated and unsigned piece of cardboard
    on which were written the words Never meant to hurt you sorry baby xoxoxo.

[11]

We
    see no error in the trial judges finding that the necessity requirement was
    satisfied. As he observed, the complainant had made it clear that she was
    unwilling to testify against the appellant, and that she would continue to hide
    from the police in order to ensure that she could not be compelled to do so.
    Her intention to not incriminate the appellant was resolute. The trial judge
    commented that she had indicated in her emails she would do anything in her
    power to make things go well for the appellant. He found that her statement
    comprised the only evidence that the Crown could put forward in its attempt to
    prove the charges against the appellant. This latter finding shows that the
    trial judge recognized that necessity was not based on unavailability of the
    witness but on the unavailability of the evidence in her
K.G.B.
statement. Even if the complainants attendance in court were compelled, her
K.G.B.
statement would be the only evidence the Crown could put forward.

[12]

The
    trial judge found that the statement was sufficiently reliable to overcome the
    lack of cross-examination. He reasoned that there was an accurate, sworn and
    warned record of what was said; there was no reason for the complainant to make
    the allegations up; and the statement was given only a few days after the event
    so there were no memory problems. Further, the complainants description of
    what occurred was consistent with her injuries seen in the photographs and the
    damage to the front door, her account was made without prompting and she was
    careful not to overstate her allegations. If the statement were not true it
    could be assumed she would testify under oath that she had not been assaulted.

[13]

In
    summary, the trial judges conclusions regarding both the statements necessity
    and reliability were reasonably supported by the evidence.

[14]

The
    appeal is dismissed.

M. Rosenberg J.A.

R.G. Juriansz J.A.

Gloria
    J. Epstein J.A.