R. v. R.G., 2023 ONCA 343

WHAT YOU NEED TO KNOW

-A trial judge sitting without a jury has the jurisdiction to vacate a finding of guilt and reopen a trial prior to the imposition of sentence.

-The Palmer test for the admission of fresh evidence on appeal guides the analytical approach on applications to reopen.

BACKGROUND & FACTS

The appellant was convicted of a number of offences arising from the sexual abuse of his daughter. At trial, his strategy was to challenge the complainant’s evidence using a number of prior inconsistent statements and conflicting disclosures to various people. The appellant also proffered a motive to fabricate, one rooted in the suggestion that the complainant disliked her father and was concerned that he and her mother would rekindle their relationship.

The trial judge’s reasons for judgment turned largely, if not exclusively, on the trial judge’s acceptance of the complainant’s credibility. The appellant does not allege any error in the reasons for judgment.

Between the verdict and sentencing, the appellant discharged his counsel and retained a new one. The new counsel moved to obtain the appellant’s cell phone records for a period of time that captured the last alleged offence. As the complainant’s phone was registered to her father’s Rogers Communications Canada Inc. (“Rogers”) account, her phone records were included in the package of documents returned from Rogers. The phone records were accompanied by an affidavit from a Rogers employee, explaining their meaning. The phone records are inconsistent with some critical aspects of the complainant’s evidence at trial.

Prior to sentencing, the appellant brought a motion to reopen the trial and asked that a mistrial be declared. The trial judge dismissed the application and put the matter over for sentencing. He was ultimately sentenced to 10 years’ imprisonment.

On appeal, the appellant asks the Court of Appeal to set aside the verdicts and order a new trial where all relevant evidence (including the phone records) can be considered.

Disposition - Appeal allowed; New trial ordered.

analysis

A trial judge sitting without a jury has the jurisdiction to vacate an adjudication of guilt and reopen a trial prior to the imposition of sentence. For good reason, this is rarely done. In determining whether to invoke this jurisdiction, the trial judge will consider numerous factors, including whether the defence has exercised due diligence during the trial proper. In exceptional cases, the cogency of new evidence will be so strong that, despite a failure of due diligence, the interests of justice will demand that the finding of guilt be vacated and the trial reopened. This is one of those rare, exceptional cases.

Reopening a trial post-conviction, prior to sentencing

Trial judges sitting without a jury are not functus officio until after sentence is imposed or the case is otherwise disposed of. To be sure, a trial judge sitting without a jury can vacate an adjudication of guilt prior to sentence or other final disposition: R. v. Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.), at p. 73. But to be equally sure, this jurisdiction should be exercised only in “exceptional circumstances” where “its exercise is clearly called for”: Lessard, at p. 73. This is a rare power and no one should expect a do-over: R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at para. 23.

Since the trial judge is operating within an area of discretion when deciding whether to reopen a case, the decision is entitled to significant deference on appeal unless of course the decision is infected by legal error, a material misapprehension of evidence or is unreasonable: R. v. M.G.T., 2017 ONCA 736, 357 C.C.C. (3d) 109, at para. 55; R. v. Kippax, 2011 ONCA 766, 24 M.V.R. (6th) 1, at para. 64, leave to appeal refused, [2012] S.C.C.A. No. 92; and Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 777.

The Palmer test for the admission of fresh evidence on appeal guides the analytical approach on applications to reopen. The four-part Palmer test, at p. 775 of that decision, is well-established:

(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.
(4) The evidence 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.

Over time, this test has been distilled into three helpful broad considerations: (1) is the evidence admissible under the operative rules of evidence (the admissibility component); (2) is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict (the cogency component); and (3) does the party seeking its admission offer a satisfactory explanation for the failure to adduce it at trial (the due diligence component): R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92.

As in Palmer, evidence should generally not be admitted on a reopening application where, through due diligence, it could have been adduced during the trial proper. At the same time, as this court and the Supreme Court have repeatedly noted, from time-to-time in criminal cases, failures to exercise due diligence will bend to cogency, especially where miscarriages of justice loom: R. v. Kowall (1996), 108 C.C.C. (3d) 481 (Ont. C.A.), at pp. 493-94, leave to appeal refused, [1997] 1 S.C.R. viii; R. v. Warsing, [1998] 3 S.C.R. 579, at p. 592; R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 8; R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at paras. 64-67; and R. v. Reeve, 2008 ONCA 340, 233 C.C.C. (3d) 104, at paras. 83-89. In other words, due diligence is not a precondition to admissibility: Truscott, at para. 93. As noted by Rothstein J. at para. 67 of Hay, where the appellant sought the admission of evidence on appeal that his trial counsel had not inquired into:

In general, mere lack of knowledge on the part of trial counsel without any indication that he inquired into the possibility of obtaining and presenting the evidence is a factor against admitting the evidence for the first time on appeal: McMartin, at pp. 490-91. However, [since] this is a criminal case, involving charges of the most serious nature, I would not allow the evidence to be excluded solely [based on] a lack of diligence.

application

There is no dispute in this case that the cell phone records constitute admissible evidence. The key issue is whether the cogency of these records outstripped the serious failure of due diligence.

• Does the evidence bear upon a decisive or potentially decisive issue at trial? The evidence bears on two decisive issues at trial: the complainant’s credibility and whether one of the incidents occurred.

• Is the evidence reasonably capable of belief? The cell phone records are credible and reliable.

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

• Due Diligence - Evidence should generally not be admitted on a reopening application where, through due diligence, it could have been adduced during the trial proper. At the time, failures to exercise due diligence will bend to cogency, especially where miscarriages loom. On a reopening application, the more cogent the admissible, credible new evidence is, the more due diligence will bend. This will only happen in very rare cases. This is one of those very rare cases. Despite the clear lack of due diligence in this case, in the sense that the defence did not pursue what was pursuable, I remain focused on the fact that there is no plausible explanation for why the defence would not have obtained and reviewed this evidence. The failure to obtain and review this seemingly powerful evidence, which has been left unchallenged to date, in order to decide whether to adduce it at trial, simply cannot be described as a strategic choice.

Given the high degree of cogency attaching to the phone records, specifically as they relate to crucial issues that required determination at trial, this is one of those rare and exceptional situations where, in the interests of justice, the verdicts of guilt should have been vacated and the trial reopened.