R v Michael Kassa appeal factum

Criminal Law

FACTUM OF THE APPELLANT

PART I: STATEMENT OF THE CASE

On December 17, 2009 the appellant was convicted of second degree murder by the Honourable Justice Matheson sitting with a jury. On April 12, 2010 he was sentenced to life imprisonment with a 13-year period of parole ineligibility. The appellant now appeals conviction and, if leave be granted, sentence.

PART II: SUMMARY OF THE FACTS

Overview of the appeal

The appellant was convicted of second degree murder on the basis of his ex-girlfriend’s uncorroborated evidence. Her credibility, which the jury recognized suffered from weaknesses at trial, has since been significantly undermined by her subsequent recantations and admissions to committing perjury in this case.

Moreover, even if she was credible, the Crown did no more than prove mere presence and accordingly, the verdict was unreasonable. At the very least, the trial judge was required, but failed to convey to the jury that mere presence was insufficient. Instead of ensuring the jury did not leap from a finding of presence to a finding of guilt in this purely circumstantial case, the trial judge specifically invited them to rely upon, in his words, “speculation” and “conjecture”. There is truly a live issue as to whether the appellant is factually innocent. In light of the fresh evidence and the unfairness of the trial, the conviction must be quashed.

Overview of the facts

The Crown’s theory was that the appellant strangled the deceased, Sonia Gaudet, with a ligature and then lit the deceased’s apartment on fire. The key issue at trial was identity, which relied entirely upon the evidence of the appellant’s then girlfriend, Megan Fitzpatrick. Her evidence was uncorroborated and there was no evidence of motive.

Fitzpatrick testified that the appellant came home around 5 a.m. on the night in question with blood on his shirt and pants. He washed his hands for over 15 minutes and then informed her that, “something terrible happened to Sonia”. The defence challenged her evidence on the basis that it would have been next to impossible to spot blood on his navy shirt and black jeans, especially since the offence did not involve blood. The defence also questioned the plausibility of Fitzpatrick’s evidence that the appellant cleaned his hands for 15 minutes and still had blood under his nails. Notably, during deliberations, the jury asked for Fitzpatrick’s evidence in writing and, more significantly, indicated they had reached a stalemate at one point and needed to be exhorted before coming to a verdict. Furthermore, after convicting, not one of the 12 jurors made a recommendation on sentencing.

Even if the jury believed Fitzpatrick’s evidence, her evidence did no more than put the appellant at the scene. There was a complete lack of evidence to suggest the appellant actually killed the deceased or was alone with her that evening. Therefore all of the evidence, as it was presented at trial, could be explained by a finding that he watched someone else commit the offence.

The appellant applies to admit fresh evidence which amounts to a recantation by Fitzpatrick of the only evidence linking the appellant to the offence. Fitzpatrick, a single mother with no criminal record, recanted her evidence under oath and her recantation withstood cross-examination (the recantation was videotaped and the appellant invites the Court to watch the video to assess her demeanour). Although Fitzpatrick subsequently retracted her recantation, the retraction is full of inconsistencies and there was a compelling motive to falsely retract, certainly stronger than her motive to falsely recant in the first place. In any event, both the recantation and the retraction demonstrate her lack of respect for the oath and, considering the jury had difficulty relying upon her evidence at trial when they had no objective reason to question her credibility, the verdict may have been different had they been aware of how easily and convincingly she could lie under oath. A new trial must be ordered.

The events in or around the deceased’s apartment on January 5, 2005

On the night of the offence – January 4, 2005 – a friend visited the deceased’s apartment at 95 Hess Street South around 5 p.m. and a neighbour saw her in the building around 6. At that time the deceased was in good spirits. At 8:30 p.m. Blair Chamberlain saw her in the lobby. Chamberlain delivered alcohol for a living at that time and on January 4, 2005, the deceased stopped him in the lobby and asked him to buy her a magnum of wine. When he returned from the liquor store with the magnum, Chamberlain spoke to the deceased at her apartment doorway for a while. In fact, she poured him some wine. He believed she had said that she had “people” coming over.[1] It was not uncommon for people, often drug users like herself, to convene at her apartment.[2] Chamberlain left around 9:40 p.m..[3]

At 7:50 in the morning the fire department was contacted since there was smoke coming out of the deceased’s apartment. The fire department entered the apartment to find dense smoke with zero visibility. Two firemen crawled around until they found the deceased lying on the floor.[4] The deceased had been strangled to death and then her body was burnt in the fire. According to the fire Marshall, the scene was equally consistent with an accidental fire as it was with a purposefully lit fire.[5] Whether it was accidental or intentional, the fire Marshall could only narrow down the timing of the fire to at least 2 hours before the first firemen arrived.[6]

It was clear that the deceased had died from strangulation prior to the fire. The pathologist agreed that it was “more probable” that she had been strangled from behind than from in front. Notably, there was a bruise on her back, which would have been consistent with the assailant putting one knee on her back and strangling her.[7] There were no other bruises on her body. [8]

Fitzpatrick’s evidence regarding the events on January 5, 2005

The appellant initially met the deceased when they both lived in separate apartments at 95 Hess Street South. In 2002, when he moved out of his apartment, he slept on the deceased’s couch for a few weeks. At that time he was 21 and dating the mother of his two children Megan Fitzpatrick. The deceased was about 45. The appellant remained close with the deceased until January 2003, when Fitzpatrick noted an abrupt termination of their friendship.[9] As far as Fitzpatrick was aware, the appellant had no contact with the deceased from January 2003 until the offence. Since the appellant did not have a phone he often used Fitzpatrick’s and she was therefore aware of a lot of his activity.[10]

On January 4, 2005 Fitzpatrick was 18 years old and had two unplanned children to care for. That evening, according to her trial testimony, she got in an argument with the appellant about his infidelity. She knew that he had cheated on her, however, never suspected that he had been intimate with the deceased. She estimated that their argument lasted 2 hours and then, according to her evidence in-chief, he left between 2 and 3 a.m.. Significantly, under cross-examination at trial, she agreed he left at approximately 3 a.m.[11]. At that point, he had consumed a few “40-ouncers” of beer and was “very intoxicated”. From past behaviour Fitzpatrick expected that he would return home later that night.[12]

The Crown theorized that the appellant went to the deceased’s to sell her drugs. Notably, the deceased had no way of contacting the appellant – who had no phone – had she wanted drugs. The Crown introduced a video of a man entering the deceased’s apartment building at 2:11 a.m.. He passed through the buzzer system by following another individual into the building. Although the man generally matched the appellant’s description, the video was too grainy to make any sort of identification.[13] With respect to clothing, the man in the video was wearing dark clothing and a dark hat, which was consistent with Fitzpatrick’s general description of the appellant’s attire on January 5, 2005. However, the individual in the video was not wearing white sneakers and Fitzpatrick was confident and unchallenged on the fact that the appellant was wearing his bright white sneakers that night, as he did every night.[14]

Fitzpatrick testified that between 5 and 5:30 a.m., the appellant returned[15] and she buzzed him into the building and went back to bed. According to her testimony, when he entered her apartment he went by her bedroom to the bathroom. She estimated he was in the washroom running water for approximately 10 minutes. He then went to the living room, looked for something and returned to the washroom. After he ran water for another 5 to 10 minutes, Fitzpatrick decided to find out what he was doing. She testified that when she got to the washroom, she could see he was scrubbing his hands. She noted a small amount of blood in the middle of his shirt and on the top of his jeans. She said the pattern of blood drops was consistent with something having been dropped in a puddle of blood and splashed up on the appellant. She also suggested that she saw dried blood under his fingernails. She said that the appellant was mumbling and then said, “something terrible happened to Sonia”.[16]

The defence questioned whether it would make sense that the assailant would have had any blood on him at all, since the deceased was not stabbed or cut. As a result of the asphyxiation the deceased bled a little bit from the nose and mouth. The blood was all mixed with mucus and, according to the pathologist, it would not have sprayed out. Instead it would have “oozed” from her oral and nasal cavities. The deceased had only microscopic drops of blood on her clothing; the Centre of Forensic Sciences (CFS) expert described a total of 8 drops of blood on her shirt that ranged in size from 2 by 1 mm to 3 by 1 cm. Furthermore, the pathologist agreed that the injuries were consistent with, and that it was “more probable” that, she had been strangled from behind. Thus, the defence theorized, it was unlikely the assailant would have had any blood on him, and even if there had been a transfer of blood it would have been difficult to spot with the naked eye.[17]

Moreover, the defence emphasized that it would have been very difficult to see any blood on the appellant’s dark clothing; the CFS expert noted that special equipment was generally required to detect blood on dark clothing. He also noted that the blood would have dried “very quickly” and thus, would have appeared reddish-brown. However, Fitzpatrick maintained that she could see red blood stains on the dark blue shirt and the dark blue or black jeans. In particular, she described it as, “red like, looked a little bit fresh”. She also maintained that despite the fact blood washes away from the skin easily, the appellant was “scrubbing” his hands for over 15 minutes and still had blood under his nails. [18]

Other circumstantial evidence

i) The cigarette butts

Aside from Fitzpatrick’s evidence, the Crown relied upon circumstantial evidence to suggest that the appellant had been there that evening. In particular, the Crown pointed to the fact the appellant’s DNA was on 5 cigarette butts found in a garbage can lined with an LCBO (Liquor Control Board of Ontario) bag in the deceased’s apartment. The deceased’s DNA was also on 4 of those 5 cigarettes. In light of Chamberlain’s testimony that he “most likely” left an LCBO bag with her when he delivered the wine that evening, the Crown theorized that the deceased lined the garbage can that night with the bag she received from Chamberlain, she then smoked 5 cigarettes with the appellant, emptied the ashtray in front of the appellant and put the garbage can away under a chair. The appellant then strangled her.[19]

Although the Crown’s theory was possible, there were many other possible scenarios. First and foremost, there was no receipt or anything else to specifically link that LCBO bag to Chamberlain’s delivery, especially considering police found other plastic bags in the apartment, which may have included LCBO bags. Second, police never found the empty magnum, so it is quite possible that the deceased or the assailant removed the magnum from the room in the LCBO bag.[20] Third, it is also possible the deceased had not used that garbage can for a while, since there were other cans in the apartment and that one was hidden under the skirt of a chair, which fell to the floor.[21] The deceased’s apartment was not kept neat.[22] Fourth, even if the deceased had lined the garbage can that evening, it was quite possible that the cigarettes had been in an ashtray she had not used for a while, but she had just cleaned out that evening. There were simply too many possibilities to conclude that the cigarette butts amounted to evidence the appellant was there that evening.

Despite the several equally plausible explanations for the cigarette butts, the Crown invited the jury to find they were evidence that the appellant was in the deceased’s apartment on January 5, 2005, which, if true, was contradicted by the appellant’s statement to police. In particular, on March 23, 2005 the appellant estimated that the last time he saw the deceased was in December, 2004 (at least 6 days before her death) and although he did not “really remember” when he was last in her apartment, he estimated that it would have been in November, 2004.[23] Considering the garbage can in question was hidden under a chair it quite possibly had not been used in over a month.

In any event, since both the appellant’s and the deceased’s DNA was on those cigarette butts, they only support a finding that the appellant was in the deceased’s apartment when she was alive and socializing. Furthermore, it is questionable whether she would have emptied the ashtray, which only contained 5 cigarette butts, midway through the appellant’s visit rather than after he left. In any event, the cigarettes could not amount to evidence that the appellant was there at the time of, or after, her death.

ii) Consciousness of guilt evidence

The Crown also pointed to examples of evidence demonstrating a consciousness of guilt, all of which were supported by the uncorroborated testimony of Fitzpatrick. The first example was that the evening following the offence, her phone rang and the call display forewarned them that it was the police. Fitzpatrick said that the appellant ran out of the apartment cursing upon learning that the police were calling. In the end, the police had the wrong number. To minimize the prejudice associated with that evidence, the defence introduced evidence that the appellant was subject to a court order not to have contact with Fitzpatrick at that time and thus, may have wanted to flee in relation to breaching that court order.[24] Accordingly, this evidence had no probative value.[25]

A second example of post offence conduct was that Fitzpatrick noticed on January 5, 2005 that the appellant had put his navy shirt and jeans in a plastic bag and placed it by the front door. Fitzpatrick implied that packing the bag was suspicious, since he only did that when he went to stay at his mother’s for a few days. However, as pointed out in cross-examination, the appellant in fact left Fitzpatrick’s that day to stay with his mother for a few days.[26] Thus this evidence also had no probative value. Finally, Fitzpatrick testified that a couple of weeks after the offence, she was in an argument with the appellant and threatened to tell police what she had seen on January 5, 2005. He responded by threatening to stab her in the stomach.[27]

PART III: THE ISSUES AND THE LAW

The appellant raises the following issues with respect to his appeal against conviction:

1) It is submitted that in light of the fresh evidence, the conviction must be quashed;

2) The verdict was unreasonable (within this issue there is a separate issue discussed regarding the trial judge’s erroneous instruction on the use of hearsay);

3) The trial judge erred in only relating the issue of identity to evidence pointing towards guilt and none of the evidence pointing towards innocence, and more importantly, failed to ensure the jury understood that mere presence was not sufficient;

4) The trial judge invited the jury to rely upon, in his words, “speculation” and “conjecture”;

5) The trial judge erred in refusing to correct the misleading comments in the Crown’s closing address;

6) The trial judge erred in instructing the jury on post offence conduct; and

7) The trial judge erred in refusing to instruct the jury on intoxication.

Issue 1: Should the fresh evidence be admitted?

The appellant applies to admit fresh evidence, which amounts to a recantation of the only evidence linking the appellant to the offence and a subsequent retraction of that recantation. It cannot be denied that the fresh evidence is reasonably capable of belief or, at the very least, of some impeachment value and accordingly, it should be admitted and the appeal allowed.

i) A summary of the proposed fresh evidence (for a more detailed review, see Appendix A)

In order to assess the value of the proposed fresh evidence, it is necessary to consider all of Fitzpatrick’s statements. As background, the appellant assaulted Fitzpatrick on October 25, 2005, they broke up on that day and, aside from at the preliminary hearing and trial, did not see each other again until after he was convicted. On October 26, 2005 Fitzpatrick provided her first statement to police. Although she did nothing to dissuade the police from thinking the appellant may have committed the offence, she told them she had no memory of that particular night. It was, after all, 10 months after the offence. She first implicated the appellant on July 5, 2006 when police unexpectedly arrived at her house – 18 months to the day after the offence – and brought her to the station to be questioned. Aside from adding further detail, she essentially repeated the version of events she had provided on July 5, 2006 at both the preliminary hearing and trial.

After trial she wrote the appellant a letter apologizing for perjuring herself. The appellant provided the letter to his lawyer and his lawyer hired a private investigator to get a statement from her. She admitted to the private investigator that she had perjured herself. Specifically, she told him that everything in her trial evidence was the truth, except the appellant never said anything to the effect of, “something terrible happened to Sonia”. She therefore admitted that the only part of her trial evidence that linked the appellant to the offence was a lie.

Under cross-examination by both the appellant’s counsel and the Crown on September 27, 2011, Fitzpatrick maintained that she had perjured herself such that the appellant never said, “something terrible happened to Sonia”. She confirmed to the private investigator, to police and under cross-examination that she understood she was admitting to perjury and may be incarcerated. She also repeatedly expressed concern about who would take care of her children if she was incarcerated.[28]

While under oath, Fitzpatrick provided the following reasons for creating a false version of events:

1) The police convinced her that the appellant was involved and she felt that he should be punished if he was in fact involved. She said, “If he did do it, he needs to be put away, you know what I mean? That’s how I felt.”;[29]

2) She felt that the appellant should be spending more time in custody in any event, since she felt that he had not been adequately punished by the justice system for assaulting her in 2005. After a short term of incarceration he was, in her words, “walking around like a free man” while she had to relocate and take care of their children; [30]

3) She also wanted to punish him for how he had treated their children; [31]

4) Fitzpatrick further testified that she felt the police attending her residence more than once unannounced was a “nuisance” and felt that if she provided them with the information they wanted, they would “deal with him” and “leave [her] out of it”; [32] and,

5) She added that there were many other reasons as well. [33]

Two days after the cross-examination, three male police officers entered her apartment while she was asleep on the couch and began to thoroughly search her home. She testified that one officer was unnecessarily rude as he yelled at her and called her a “liar” in a “very mean way” at a point when she was already visibly upset. They “tore” her apartment “apart”, such that it took days to clean up. She found the experience “traumatizing”.[34] She told police that, “Mike isn’t worth it” and informed them she wanted to give another statement. Two weeks later, after another visit and two more phone calls from the police, she came in to the station and retracted her recantation. Thereafter, on November 23, 2011, she was cross-examined under oath for a second time by both Crown and defence counsel. She maintained during that cross-examination that her trial testimony was true.

She explained that she had falsely recanted because, although she did not want a relationship with the appellant, she wanted him out of custody to assist her in raising her kids. In other words, according to her retraction of her recantation, she risked getting a criminal record and being incarcerated, simply to get the appellant’s assistance in raising her children.[35] She further explained that the letter she wrote in March 2010 – in which she admitted to perjuring herself – was written as part of a plan she had developed with the appellant in order to win his appeal.

Her retraction of her recantation is full of inconsistencies and generally demonstrates her lack of respect for the oath. The appellant submits the following are the some examples of her flippant attitude towards these proceedings:
1. A. Her change in version of events between the time of trial and her latest statement

1) At trial, Fitzpatrick testified that the only things the appellant said to during those pivotal seconds on January 5, 2005 were, “What’d you want?” and, “something terrible happened to Sonia.” In fact, at trial she unequivocally testified that he did not say anything else.[36] However, in her retraction of her recantation, she said that in addition to saying, “Something terrible happened to Sonia,” he also said, “Get the fuck out of here”.[37] Accordingly, on November 23, 2011 she effectively admitted that part, and not an insignificant part, of her trial testimony was false.

2) Fitzpatrick also changed her version of events with respect to her evidence that the appellant admitted to stabbing a male within a week of the offence. Although she has maintained that he admitted to stabbing someone, she has been inconsistent with respect to when that stabbing occurred. In 2005, Fitzpatrick told police that she thought the appellant admitted to stabbing someone after the date of the offence, but it possibly was on the same night.[38] However, under cross-examination on both September 27 and November 23, 2011, she unequivocally adopted the suggestion that he made that admission the night of the offence[39] and she agreed it could have accounted for the blood on his clothes.

B. Fitzpatrick’s attitude towards these proceedings

3) Fitzpatrick first implicated the appellant on July 6, 2005 but did not tell police about the stabbing until November 30, 2005, on the eve of trial and after she had given 2 statements under oath. When asked why she withheld this information – which could have accounted for the blood on his clothes and the post offence conduct – for over 3 years, she simply indicated that she omitted that portion of the evening in question. She effectively admitted that she was misleading under oath, but repeatedly emphasized that she did not lie.[40]

4) Although she has admittedly obstructed justice in this serious matter, she has shown no remorse. Her reason for retracting her recantation was “Michael is not worth” her life being interrupted and her home being searched. She retracted her recantation, because she wanted her involvement in this case “to end”. [41] She therefore retracted out of concern for herself and her children. She never suggested that she retracted out of justice for Sonia Gaudet.

5) Notably, instead of this case weighing on her conscience, she in fact completely forgot that she had agreed to provide a formal, recorded recantation to Klatt on April 21, 2011 and their interview had to be rescheduled.

6) According to her retraction of her recantation, she initially falsely recanted in this serious matter simply to get the appellant out of custody to assist in raising her kids.[42] If true, this further demonstrates her lack of respect for the oath.

7) Finally, her lack of respect for the oath is apparent from the fact that even after giving ten formal statements in this case, she did not pay attention as to when she swore to the tell the truth. On November 23, 2011 Fitzpatrick could not say whether she was under oath when she gave a statement to Klatt in March 2011 or when she gave a statement to the police on October 17, 2011.[43]

C. Inconsistencies with respect to the plan to write the letter

8) Fitzpatrick repeatedly stated that she discussed the plan to write a false letter with the appellant over the phone.[44] However, in contrast, she also said that they purposefully avoided legal issues over the phone since they were both under the impression that all of their conversations were recorded.[45] When this inconsistency was put to her during cross-examination, she explained that they spoke in code so that they – two people who had only seen in each in person twice over the previous five years – could understand each other and no one else could.[46] Impressively, through code he told her he wanted her to recant everything, but she informed him that she would only recant part of her statement.[47];

9) She unequivocally said to police that it was her idea to write this false letter in the first place[48] and that she was the one who told him to show it to his lawyer.[49] In contrast, under cross-examination by the Crown on November 23, 2011, she unequivocally said that it was the appellant’s idea. [50] Under cross-examination by the defence, she at one point said it was both of their ideas and then went back to her position that it was, in fact, her idea. [51]

10) Although on page 26 of the statement she gave police, she was able to describe “kind of how [the idea to obstruct justice] came up” in conversation, when asked on page 12 of the same statement about the content of the conversation when the subject first arose, she said, “I can’t remember. Honestly like I can’t even remember how it came up, I really can’t even remember.”

11) She told police on October 17, 2011 that the subject of writing the letter came up during visits, as well as phone calls.[52] In contrast, under cross-examination on November 23, 2011 she matter-of-factly stated that they only discussed the plan over the phone.[53] However, later in the cross-examination on November 23, 2011 she agreed that they also communicated on this topic in letters. [54]

12) At a few points during her statement to police, she said the plan was only ever discussed “briefly” over the phone.[55] However, in cross-examination on November 23, 2011 she implied that there were multiple discussions about this plan. She attempted to reconcile this inconsistency by stating that she used “briefly” to mean “not in detail”, rather than its plain meeting of ‘not for a long time’[56];

D. Other inconsistencies revealing her flippant attitude towards the oath

13) Fitzpatrick told police on October 17, 2011 that her friends had visited the appellant in custody.[57] However, under cross-examination she admitted that her friends had never visited him and she seemed to be at a loss to explain her earlier statement[58];

14) Fitzpatrick told police on October 17, 2011 that the reason she initially felt compelled to tell the truth – specifically to tell police that the appellant was involved in the offence – was because the police threatened to give her a polygraph exam.[59] However, she was in fact threatened with a polygraph exam on October 26, 2005[60] when she maintained that he was not involved and there was no suggestion of a threat of a polygraph on July 5, 2006, when she in fact first inculpated the appellant. Moreover, she is not afraid of polygraph exams since, on her own initiative, she invited authorities to test her evidence with such exams on both September 27, 2011[61] and November 23, 2011[62] – when she gave contradicting versions of events;

15) Under cross-examination on November 23, 2011 she claimed that everything she said in the letter written in March, 2010 was a lie, including the fact that she wanted the appellant to suffer.[63] However, she admitted on October 17, 2011 that when she implicated him in this offence she had wanted him to spend more time in custody for abusing her.[64]

16) On November 23, 2011 she also claimed that it did not upset her greatly when she learned that the appellant had given the letters she had written him to his lawyer.[65] However, her language to police on October 17, 2011 suggested otherwise:

He had no business showing people, like his lawyer the other letters that I’ve written, especially if they didn’t say anything regarding this whole situation. I felt betrayed when he did that, I didn’t like that at all.

…

I didn’t know that you guys had any other letters until you told me the first time you came to my house. That set me off like I was pissed, right, really, really pissed off.

…

After when I, when I first found out that he gave my letters to his lawyer I was pissed, really pissed off. So when he called me I didn’t even let him talk to his children. I just told him like obviously I was upset and I’m like, I asked him why he would do that and he said he didn’t want to talk about it. And I started – I swore at him a couple of times and I – he asked to talk to the boys and I told him no, that I’ll have the kids write him a letter so he can have more shit to show his lawyer. That’s what I said to him.[66]

ii) The law on the admissibility of recantations

A conviction will be overturned on the basis of a recantation of a Crown witness if the recantation is reasonably capable of belief or if it has substantial impeachment value. The recantation in the case at bar had, at the very least, significant impeachment value of a witness who the jury had problems believing in the first place, and thus, as is outlined below, the conviction should be quashed.

The assessment of the admissibility of all fresh evidence starts with the test articulated in Palmer, infra, which states that the evidence will be admitted if it meets the following criteria:

1) It must not have been available by the exercise of due diligence;

2) It must be relevant to a potentially decisive issue at trial;

3) It must be credible in that it is “reasonably capable of belief”; and

4) It could if believed taken together with the rest of the evidence reasonably be expected to have affect the verdict[67]

The courts have recognized that where a key Crown witness recants after trial the first two Palmer criteria – namely, the availability of the evidence with the exercise of due diligence and the relevance of the evidence to a potentially decisive issue at trial – are met. The focus in recantation cases is therefore on the final two criteria. Rosenberg J.A. discussed the approach to these final two criteria in detail in Babinski, supra.

Rosenberg J.A. concluded that if the recantation itself is credible, all four Palmer criteria are met. He further noted that the threshold for making such determination must be a low one, since appellate courts have not had the opportunity to observe the witness’ demeanour at trial. He said:

The inquiry must focus on McIntyre J.’s explanation of credible fresh evidence as being evidence that is “reasonably capable of belief”. Phrased in this way, the requirement recognizes that the appellant court is at a distinct disadvantage as the primary fact-finder, for even if it has heard the proposed fresh evidence viva voce, it has not heard the trial evidence.

In my view, the credibility requirement is expressed in these terms because the advantage and expertise of an appellate court lies in its reviewing function rather than as a primary fact-finder. In some cases, the court of appeal may be satisfied, based on its own assessment of the proposed fresh evidence, that it is truthful and reliable. On the other hand, in many cases, the court, while unable to make that determination, may also be unable to reject the evidence as not credible. Such evidence is, in my view, reasonably capable of belief within the meaning of the third Palmer requirement. It should not be rejected at the credibility stage, since evidence that is not rejected as incredible is still capable of affecting a verdict in a criminal case.[68] [Emphasis added]

Notably in Babinski, similar to the case at bar, the relevant witness not only recanted after trial, but retracted his recantation before the hearing of the appeal. Thus, in cases where the witness recanted after trial – whether or not that recantation was subsequently retracted – the court must first assess, using a low threshold, whether the recantation is itself credible. If it is, the appeal must be allowed.

However, the analysis does not stop there. If the appellate court finds that the recantation is not credible then the court must then assess whether it has any impeachment value. In fact, the conviction in Babinski was overturned on the basis that although the recantation was incredible, it offered substantial impeachment value. Rosenberg J.A. reasoned as follows:

It now becomes necessary to consider whether the fresh evidence in this case is reasonably capable of belief when tendered for its impeachment potential. The evidence of the recantation to the appellant’s trial counsel is reliable in the limited senses that the fact it was made is clearly established. The evidence gathered by the police in the investigation of the recantation is admitted to be credible. As a whole, I would find the evidence reasonably capable of belief even if I was unable to say that any particular statement by L. can be show to be truthful. When the fresh evidence is set against L.’s trial evidence it has substantial value for impeachment purposes.[69] [Emphasis added]

Rosenberg J.A.’s reasoning intentionally mimicked the reasoning in the Supreme Court of Canada case of M.H.C., infra[70]. Mr. M.H.C. was convicted of sexually assaulting his step-daughter. After trial, he learned that the Crown had failed to disclose a statement they had received from the complainant’s teacher, in which the complainant denied all of the allegations. The Supreme Court of Canada overturned the conviction and ordered a new trial on the basis the appellant’s right to disclosure had been violated. In Babinski Rosenberg J.A. relied upon the reasoning in M.H.C. to find that the credibility criterion for the Palmer test is met if the recantation was credible enough to possibly impeach the witness’ credibility. He said:

The evidence was obviously relevant since it related to the crucial issue of the complainant’s credibility. I can only assume that McLachlin J. saw no question of credibility because the obvious credibility of the teacher to whom the child made the denial and because the statement was tendered only for impeachment purposes. There is no suggestion that the appellate court was required to find as a fact as a prerequisite to admission that the sexual assault did not take place because the statement by the child to the teacher was true, i.e., credible. M.H.C. seems to represent the classic case in which the appellate court, although unable to find that the fresh evidence represents the true state of affairs, is convinced that it could have substantial value to impeach the credibility of the Crown witness and in that sense might reasonably be true. Admittedly, M.H.C. is not strictly a recantation case, since the denial came before the offences were even disclosed. However, there is a parallel to a recantation case. The Crown witness made a statement to a person of obvious credit inconsistent with her trial testimony. [71] [Emphasis added]

In Snyder, infra Doherty J.A. noted that in assessing whether a recantation had any impeachment value, the court should focus on: “the explanation offered for the recantation and the extent to which the recantation is supported by either the trial evidence or other evidence offered on appeal.”[72]

Although the Court has recognized that “simple recantations” are “easily fabricated”[73], the courts have also recognized that those “verdicts that are shown to be unreliable through fresh evidence”[74] must be quashed. Accordingly, the recantation must be “palpably false”[75] before the appeal will be dismissed. In the few recantation appeals that have been dismissed the court found that the recantation itself[76], or the circumstances surrounding the recantation[77], were completely implausible, or found that the basis for the recantation was contradicted by independent, unchallenged evidence.[78] Generally, the Court of Appeal has more commonly overturned the conviction when there is credible fresh evidence that the key Crown witness recanted.[79]

iii) Applying the law to this case

Fitzpatrick’s recantation – in which she recanted the only part of her story that linked the appellant to the offence- meets the low threshold for being “reasonably capable of belief”. This case is unlike the cases in which appellate courts have found recantations were completely incredible, for the following reasons:

1) Fitzpatrick’s recantation was not inherently unreliable;

There was no independent evidence that contradicted or challenged Fitzpatrick’s recantation. There was nothing to suggest that it was implausible. Notably, her recantation withstood cross-examination by both the defence and Crown counsel. In the appellant’s submission, the recantation was at least as equally reliable as the trial evidence itself.

2) It cannot be said that she should be believed because her evidence was rich in detail;

The only detail Fitzpatrick changed from her trial testimony to her recantation was with respect to whether the appellant had said, “something terrible happened to Sonia.” Accordingly, her recantation cannot be rejected on the basis that she was able to provide substantial detail at trial.

3) The circumstances of the recantation were not inherently unreliable;

She initially admitted to perjury in a letter apologizing to the appellant not long after he was convicted. The letter comes across as heartfelt and the timing of her recantation was consistent with a demonstration of genuine feelings of guilt for perjuring herself. Moreover, Fitzpatrick admitted to committing perjury under oath, knowing that she – a single mother with no criminal record – was opening herself up to criminal prosecution and jail. Even after retracting her recantation, she never implied that she was threatened, coerced or intimidated into recanting. If anything, the circumstances of the recantation support a finding that the recantation was credible.

4) The jury had issues relying upon Fitzpatrick’s evidence; and,

It cannot be overemphasized that the jury had difficulty accepting the version of events given by Fitzpatrick at trial, which was evidenced by the fact they asked for her evidence in writing and needed to be exhorted before they came to a unanimous verdict.

5) The retraction of the recantation did not render the recantation incredible.

In light of the fact Fitzpatrick retracted the recantation in order to avoid her life being further disrupted[80], the fact that she had little respect for the oath and the number of inconsistencies in her retraction (see paragraph 31 above), the appellant submits that the initial recantation is reasonably capable of belief despite the retraction.

Although Rosenberg J.A. cautioned against overturning convictions on the basis of a recantation since recantations are easy to fabricate, the implications for Fitzpatrick to recant in the case at bar were far from simple. Keeping in mind that the threshold for determining whether the recantation is reasonably capable of belief is low, the recantation in the case at bar – which involved recanting the only evidence presented at trial directly linking the appellant to the offence – met that threshold.[81]

At the very least, the recantation is sufficiently credible to possibly impact the strength of Fitzpatrick’s trial testimony. Considering the following, it simply cannot be said that the recantation and the retraction of the recantation do not have substantial impeachment value:

1) First of all, it must be emphasized that Fitzpatrick’s trial evidence was weak;

i) The jury had a difficult time relying upon Fitzpatrick’s evidence as it stood at trial;

ii) Fitzpatrick’s trial evidence was not corroborated;

It may be tempting to find that her timing was corroborated since she testified in-chief that the appellant left her apartment between 2 and 3 a.m. in dark clothing and someone in dark clothing of similar height to the appellant entered the deceased’s building at 2:11 a.m.. However in cross-examination she agreed that he left at approximately 3 a.m.[82] and more importantly, she was more confident in the fact he was wearing white shoes that night than she was in her time estimates and the man entering the deceased’s building at 2:11 a.m. was not wearing white shoes.[83] No other aspects of her evidence was consistent or corroborated with other evidence. None of their neighbours testified about hearing an argument that evening; none of the appellant’s clothing was found with blood on it; no one saw the appellant in or near the deceased’s building that evening; Ms. Fitzpatrick’s evidence regarding the blood spatter was not consistent with forensics; there was simply no corroborating evidence.

iii) In addition to being uncorroborated, Fitzpatrick’s evidence at trial suffered from the following weaknesses:

a) Her ability to see blood on the appellant’s dark clothing was implausible;

b) Her evidence that the appellant still had a noticeable amount of blood under his nails after washing his hands for 20 minutes was also implausible;

c) The pattern of blood she described on his clothes could not be explained by the offence; and,

d) Considering that in every version of events both before and after trial Fitzpatrick stated that the appellant left her apartment closer to 3 a.m.[84] (rather than sometime between 2 and 3 a.m.), the Crown – who had video surveillance of people entering the deceased’s building – could not point to anyone who was possibly the appellant who entered the building at the relevant time.

iv) The first time Fitzpatrick disclosed her version of events was exactly 18 months after the offence and therefore any detail she was able to provide should be considered with caution.

2) The fresh evidence revealed Fitzpatrick’s lack of respect for the oath

i) Fitzpatrick’s admission that it was her idea to write a letter falsely recanting her evidence, at a time when she would not greatly benefit from his conviction being overturned, highlights Fitzpatrick’s willingness to mislead the court;

ii) The fact that Fitzpatrick recanted and retracted her recantation further demonstrate her flippant attitude towards the oath; and

iii) Fitzpatrick’s lack of respect for the oath is even further evidenced by the fact that her retraction was full of inconsistencies. At that point in the process, Fitzpatrick should have been well aware that there were consequences to even minor lies.

3) The fresh evidence revealed Fitzpatrick was conniving

The fact that Fitzpatrick’s reported false recantation withstood cross-examination, without contradicting any independent evidence demonstrates her intelligence and ability to navigate through the evidence. Moreover, she admitted under oath that when she wrote the letter in March of 2010, she thought about how to make it the most believable in all the circumstances.[85] Generally, her conniving tendency would have substantial impeachment value.

4) The fresh evidence revealed motives to fabricate; and,

In her recantation, Fitzpatrick provided a number of reasons why she lied at his trial. Those motives to lie would be a valuable asset in cross-examining Fitzpatrick as to which version of events is true.

5) The fresh evidence revealed an alternate explanation for much of the evidence.

Now that Fitzpatrick has confidently stated that the appellant told her he stabbed someone the same night as the offence (rather than saying it was possibly the same night, but she “thought” it was a different night), defence counsel could use this evidence to explain the blood on his clothing and the post offence conduct.

The recantation of the key Crown witness, who was a single mother with no criminal record and a lot to lose from recanting, was “reasonably capable of belief” or, at the very least, it had some impeachment value in a case where the jury needed to be exhorted to convict the appellant. The appeal should therefore be allowed on the basis of this issue.

Issue 2: Was the verdict unreasonable?

The appellant submits that even if the evidence at trial was found to be credible, it did not support a finding that the appellant was guilty of murder and accordingly the verdict was unreasonable. A verdict is unreasonable if there was no “evidence upon which a reasonable jury properly instructed could return a verdict of guilty”.[86] The Crown’s case at its highest can be summarized as follows:

i) The appellant left Fitzpatrick’s apartment between 2 and 3 a.m. and returned around 5 to 5:30 a.m. on January 5, 2005;

ii) Someone generally matching the appellant’s description entered the deceased’s building at 2:11 a.m.. The deceased was killed between 9:40 p.m.[87] on January 4, and 5:50 a.m.[88] on January 5;

iii) The appellant smoked cigarettes with the deceased sometime prior to her death, possibly on the night of her death;

iv) When the appellant returned to Fitzpatrick’s apartment he had blood on him, but the blood pattern did not support a finding that he, in fact, killed the deceased;

v) The appellant told Fitzpatrick that “something terrible happened to Sonia”; and,

vi) The appellant threatened to stab Fitzpatrick in the stomach if she disclosed what she had seen the evening of January 5, 2005[89].

The Crown’s case therefore did no more than put the appellant at the scene. Where the Crown’s case is based on circumstantial evidence, as it was in the case at bar, the accused can only be convicted if there is no other “rational explanation that accounts for the death and is consistent with the evidence.”[90] In Yebes McIntyre J. noted that where the evidence amounted to no more than presence at the time of the offence, there must be evidence to support exclusive opportunity for the verdict to be reasonable. He said:

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. [91]

Since the Crown’s case proved nothing more than mere presence, the only way the Crown could have proven guilt was if there was evidence to support exclusive opportunity.

However, the evidence did not support a finding of exclusive opportunity. Even though the appellant’s DNA was the only DNA on any of the cigarettes in the apartment (aside from the deceased’s) and even though the video surveillance evidence could support a finding that the appellant arrived in the building alone, there was no evidence to refute the possibility that there were other individuals present, who did not smoke cigarettes that evening and who either lived in the building or arrived separately. In fact, there was positive evidence that others were present and involved in the offence, including:

1) Evidence that Chamberlain believed the deceased had said people were coming over;

Although this statement was hearsay, since there was no suggestion the circumstances of this statement were suspicious, it could have been used to show the deceased’s “state of mind” and her “present intentions”.[92] Thus, it was evidence that at the time she made the statement she had reason to believe that “people” were coming over later. It could be reasonably inferred from the fact she made that statement, that “people” did in fact come over thereafter.

The trial judge therefore erred when he instructed the jury that they could only use the deceased’s comment to Chamberlain to show that she was in good spirits. He instructed them as follows:

…she also stated that there were some people coming over, that’s presumably why the wine. The statements that Ms. Gaudet made is hearsay and the only use that you may use those statements is how her, what her condition or frame of mind was and it would appear that she was in good spirits.[93]

In light of the importance of this evidence on the issue of exclusive opportunity, this error by the trial judge was itself a significant error that impacted on the fairness of the trial.

2) The fact that the deceased bought a magnum of wine for her intended guests; and,

3) Fitzpatrick’s evidence that the appellant used passive language in stating “something terrible happened to Sonia”, implying that it was someone other than himself that caused the death.

Although this evidence of others being present may have been weak, there was no evidence that the appellant was alone with the deceased.

It is also of some significance that according to Fitzpatrick’s latest version of events, which is part of the fresh evidence application, she cannot say that she believes the appellant committed the offence.[94]

Thus, all of the evidence at trial was consistent with the appellant having been merely present at the scene when she was killed. It cannot be said that the evidence was “consistent with guilt and inconsistent with innocence”.[95] Since the jury would have had to speculate in order to jump from mere presence to a finding that he actually strangled her, the verdict was unreasonable and an acquittal should be entered.

Issue 3: Did the trial judge err in relating the evidence to the issue of identity, such that it resulted in an unfair trial?

The trial judge failed to fairly relate the evidence relevant to the key issue at trial, namely the identity of the individual who strangled the deceased. In particular, he only related the evidence pointing towards guilt and failed to relate any of the evidence pointing towards a finding of not guilty. Moreover, he failed to point to any evidence that went beyond mere presence. As noted in issue 2 above, the Crown’s case focused on showing the appellant was present at the time of the offence and that he had the deceased’s blood on him. At no point in the trial was the jury assisted in how the evidence supported more than mere presence. In the circumstances of this case, the trial judge had a duty to ensure the jury knew mere presence was insufficient – or, in other words, the jury had to reject any other rationale explanation for the evidence before convicting – and more importantly, the trial judge had to summarize the evidence that assisted the jury in assessing this issue. He failed to do so.

Instead, in summarizing the evidence of identification, the trial judge explicitly only referred to the evidence pointing towards guilt. As he stated:

I have listed some of this evidence that you might think link Mr. Kassa as the person who caused the death of Ms. Gaudet. Against, what I have stated is not evidence but is only to refresh your memory as to the evidence. I may have left something out that you think is of importance and that is for you to determine.

In particular, the trial judge related the following evidence to the issue of identity:

As indicated, the Crown must show that Mr. Kassa beyond a reasonable doubt was the one who caused the death of Sonia Gaudet. What does the Crown rely upon to place Ms. Kassa at the site of Sonia Gaudet’s apartment on the night and morning in question? Here is some evidence that you may find that helps you in arriving at the decision on identity. Identity is a major issue in this trial. Remember, please, that my recitation of the evidence and that given by Crown counsel and defence counsel is only to assist you in remembering the evidence. If your recollection is different from mine, you must go with your recollection on the evidence and disregard mine and if you disagree with what counsel said, you must disregard that. You are the sole judges of the evidence.

The evidence of Mr. Kassa’s then girlfriend, Megan Fitzpatrick, states that on the evening of January the 4^th, Mr. Kassa was in her apartment and he started drinking about ten o’clock and he continued to drink and argue with Ms. Fitzpatrick until between 2 and 3 a.m. on January the 5^th. He left the apartment, as I said, between the hours of two and three. She was not sure of the exact time. She stated that he would usually return so she stayed on the couch, awaiting his phone call. And he came back, according to Mr. Fitzpatrick’s testimony, between five and six in the morning. She had gone to bed after unlocking the door after he had telephoned her and then buzzed her to let him in. She heard him in the bathroom and there was water running for about ten minutes. Then he left the washroom and went into the living area, which was past her door in the bedroom. He then returned to the bathroom and there was more water. She heard more water running, so she went in and saw him. According to her, he was washing blood off his hands and under his fingernails. She noted some spots of blood on his dark clothing and he said to her, “something terrible has happened to Sonia.” Ms. Fitzpatrick had been to Sonia’s apartment once, to obtain money for the two children of which Mr. Kassa is the father. This was at 95 Hess Street, and Mr. Kassa was there, according to the testimony of Ms. Fitzpatrick. Later, on the 5^th of January, they were watching CHCH-TV when there was a report of a fire at 95 Hess Street and Mr. Kassa left the room. There is nothing significant about that, in my opinion. She also states that there were numerous phone calls from Ms. Gaudet on her cell phone – there was a display unit on the telephone – and she would be asking for Mr. Kassa. In his statement to the police on March 23^rd, ’05 which is Exhibit Number 4, he states he knew Ms. Gaudet and had sold her drugs. We have the testimony of Rick Arnold who states that he talked with Mr. Kassa on the 23^rd day of March ’05, and he states that Mr. Kassa said, “Oh, you’re talking about the Hess Street murder.” This was before, according to Officer Arnold, there was any mention of why he wanted to talk to him.

There was DNA found on the cigarette butts and the LCBO bag and filed as Exhibits Number 29 to 32. By agreement, and you will have that agreement in writing, it was admitted that the DNA of Mr. Kassa and Ms. Gaudet are on four of the five cigarettes and there was one cigarette with Mr. Gaudet’s [sic] DNA on it. And just look at Exhibit 36. That admission states quite clearly that the Crown is stating that the DNA cannot be given a time as to when it was applied to the cigarette butts nor is there any evidence that the DNA was placed on the cigarette butts about the same time on each cigarette.

The testimony of Mr. Wills, he is the retired machinist, he was delivering the Globe and Mail and he says he went to the Hess Street apartment about 2:11. The 2:11 comes from the video and you will have that in your jury room if you wish to look at that. The timing on the video is, if I remember correctly, was 3:11. It should have been adjusted back to one hour out. He was taking a paper to the fifth floor to a client. There was a man ahead of him who was not allowed entry. When he buzzed his client he was allowed in and then there had been a man behind him in the corner, waiting and he came through the door and into the elevator. This person he described as being a dark-skinned person with a hat and dark clothes. Mr. wills says that this gentleman pushed the button on the elevator for either the 17^th or 18^th floor, remembering that Ms. Gaudet lived on the 18^th floor. He pushed the button for the fifth floor. The man did not talk to him; he did not see him again. Mr. Wills came back to the Hess Street apartment building the next day. He saw a police officer and he talked to the Officer and said he may have let the murderer in. [Emphasis added]

In summarizing the evidence relevant to identity[96], the trial judge did nothing but emphasize the evidence supporting the Crown theory. The trial judge simply failed to provide a balanced and fair instruction on identity. As stated by the Court of Appeal in the following passage of Baltovich, infra, there is no justification for such an error:

But not all mistakes are alike. Some can easily be avoided. Failing to provide the jury with a fair and balanced charge is one of them. There is no justification for jury charges that are not even-handed.

We cannot stress enough the importance of a fair and balanced charge. A charge that meets those requirements is much more likely to withstand appellate review than one that does not: See Jacquard, supra, at para. 56. In practical terms, this may mean the difference between dismissing the appeal, and ordering a new trial with all of its attendant costs and hardships. Our system of justice is already overburdened. We do not need to add to this problem with new trials that could have been avoided. Further, s. 11(d) of the Canadian Charter of Rights and Freedoms provides that every person charged with an offence has the right to a fair trial. This is a fundamental right. Unfair and unbalanced charges undermine this right. [Emphasis added] [97]

In order to provide a balanced charge, the trial judge was required to refer to the lack of evidence of motive, the fact the man on the video surveillance was wearing dark shoes and Fitzpatrick was confident the appellant wore white shoes that evening, the implausibility that the appellant still had blood on his hands after washing them for over 15 minutes, the fact that Fitzpatrick’s description of the blood was inconsistent with the offence and the fact it was very unlikely Fitzpatrick would have been able to spot blood on dark clothing. At the very least, the trial judge should have referred to one of these weaknesses in what was generally a very tenuous case on identification. The trial judge’s failure to give a balanced review of the evidence relevant to identity was extremely prejudicial.

It is even more significant that the trial judge erroneously failed to refer to the evidence that assisted in determining whether the appellant was more than merely present. The trial judge failed to ensure the jury understood the Crown had to show more than mere presence.[98] This was a very significant error in this case since, as argued in issue 2 above, there was minimal if any evidence to support the assertion that the appellant was actively involved in the offence. In such circumstances, the trial judge should have instructed the jury that mere presence was insufficient.[99]

The trial judge should have further instructed the jury that they had to reject all other rational explanations for the evidence before they could convict. Such an instruction would have further highlighted the jury’s need to make a positive finding that he did not watch as someone else killed the deceased. The need to instruct juries to reject other rational explanations was emphasized by Bastarache J. in Charemski, supra:

In my view, the trial judge should have directed the jury according to the requirement that a finding of guilt could only be made where there was no other rational explanation for the circumstantial evidence but that the defendant committed the crime (John v. The Queen, [1971] S.C.R. 781, at pp. 791-92; R. v. Cooper, [1978] 1 S.C.R. 860, at p. 881; Mezzo v. The Queen, [1986] 1 S.C.R. 802, at p. 843). Making that finding is essentially a factual matter arising from an evaluation of the evidence. That assessment is properly left to the jury. Judges should not be hasty to encroach on that time-honoured function, particularly where well-established principles articulated in this Court provide clear guidance on the circumstances in which a question may be withheld from the jury.[100] [Emphasis added]

When the charge is read as a whole, it would appear as though the main issue for the jury to decide was whether the appellant was in the apartment when the deceased was killed. In light of how the trial judge related the evidence to the issue of identity and in light of his failure to direct the jury’s attention to the gap in evidence with respect to whether the appellant actually killed the deceased, the jury may have been left with the impression that if the Crown could prove presence, the defence had the onus of disproving exclusive opportunity. However, even if the jury correctly understood the Crown’s onus, the fact that the entire trial – the examinations of the witnesses, the closing addresses and the charge to the jury – was focused on whether Fitzpatrick was a reliable witness, there is a real possibility that the jury’s deliberations were solely focused on that issue as well.

Although defence counsel did not object to the charge on the basis that the trial judge failed to emphasize that the jury had to find more than mere presence, the failure to object is never determinative.[101] The determination of whether there was an error, and whether that error was reversible, should be exclusively on whether the appellant had a fair trial. There is a real possibility that the jury’s deliberations focused on Fitzpatrick’s credibility and reliability at the expense of appropriately considering whether her evidence, if true, proved the appellant actually killed the deceased. Accordingly, the appellant did not receive a fair trial and he was possibly wrongfully convicted of murder. A new trial should be ordered.

Issue 4: Did the trial judge err in instructing the jury that they could rely upon “speculation” and “conjecture”?

Instead of instructing the jury that they could only convict if they rejected all other rational explanations for the evidence, the trial judge invited them to rely upon “speculation” and “conjecture”. The trial judge actually used the words “speculation” and “conjecture” in his charge, which refer to two forms of reasoning that have been specifically condemned in criminal courts.[102]

The trial judge invited the jury to rely upon “conjecture” in the course of inviting them to adopt the Crown theory. After summarizing the Crown’s position, the trial judge instructed the jury as follows:

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 (sic) but that is the argument of the Crown or the position and theory of the Crown. [103]

Accordingly, he specifically invited them to rely upon conjecture. Conjecture was defined in Black’s Law Dictionary as follows:

A slight degree of credence, arising from evidence too weak or too remote to cause belief. Supposition or surmise. The idea of a fact, suggested by another fact; as a possible cause, concomitant, or result. As idea or notion founded on a probability without any demonstration of its truth; an idea or surmise inducing a slight degree of belief founded upon some possible, or perhaps probable fact or which there is no positive evidence. An explanation consistent with but not deducible as a reasonable inference from known facts or conditions. In popular use, synonymous with “guess”. Also, the bringing together of the circumstances, as well as the result obtained. [Emphasis added]

Not only did the trial judge theoretically invite them to rely upon conjecture, but he invited them to adopt the Crown theory, which as was summarized by him, in fact included a number of leaps in logic not supported by the evidence. The trial judge summarized the Crown’s theory as follows:

At approximately 2:00 a.m. on January the 5^th at 2005 he left her apartment and walked to 95 Hess Street to sell drugs to Sonia Gaudet, one of his drug clients. He arrived at 2:11 but could not buzz Sonia Gaudet’s apartment because the buzzer was broken. He waited until Robert Mills, who was there to deliver the Globe and Mail to a customer, was buzzed in and snuck in the door behind him. He went to Sonia Gaudet’s apartment on the 18^th floor and smoked cigarettes with her and Sonia Gaudet used some of the cocaine he brought her. Some time between 2:11 and 5:00 a.m. a dispute arose over payment for the drugs and he strangled her to death with a soft ligature. …[104]

That theory was, as stated by the trial judge, full of conjectures. There was no evidence that when the appellant left Fitzpatrick’s apartment he intended to sell drugs to the deceased. Even if the evidence supported a finding that he saw the deceased that evening, his relationship with her was not solely based on the sale and purchase of drugs; he had actually stayed on her couch for a couple of weeks. Moreover, the uncontested evidence at trial was that the appellant stopped selling any type of drug in November or December, 2004; and there was no suggestion that he was even selling cocaine in 2004 – he only mentioned trafficking in marijuana.[105] It is furthermore questionable how the appellant would have known the deceased was interested in purchasing drugs before arriving at her apartment that night. Notably, he left Fitzpatrick’s apartment because he was angry after they had argued for 2 hours. He had no phone, there was no evidence he had had any other recent contact with the deceased and it was after 2 a.m. on a Wednesday morning. There was simply no evidence to support an inference that he went to 95 Hess Street South that evening with the intention to sell drugs to the deceased.

There was furthermore no evidence to support a finding that the appellant in fact consumed cocaine that evening. Even though Fitzpatrick saw him, according to the Crown theory, immediately after the offence there was no evidence introduced through her that he showed any signs of having consumed cocaine.[106] Remarkably, in direct contrast to his theory, Crown counsel successfully argued that the evidence could not support a finding that the appellant had consumed any intoxicants aside from 2 beer that evening and therefore, there was no air of reality to him being intoxicated at the time of the offence.[107]

Finally, and most importantly, there was absolutely nothing to suggest or support an inference that they got in an argument over the payment of drugs. The trial judge therefore not only invited them theoretically to rely upon “conjecture”, but he in fact invited them to make specific findings of fact that were not supported in the evidence.

The trial judge also invited the jury to rely upon “speculation”. He did so in the course of instructing the jury on post offence conduct. He recognized that the jury would need to rely upon speculation to determine whether the post offence conduct was evidence of a guilty conscious in relation to this offence as opposed to in relation to another offence, yet instructed them to make such a determination. He thereby, in the following passage, instructed the jury to rely upon speculation:

You have heard evidence [regarding the appellant’s 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 shouldn’t have been in the apartment and the police were coming over and 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.[108] [Emphasis added]

The trial judge therefore specifically invited the jury to rely upon both “speculation” and “conjecture” in assessing whether the Crown had proven its case. The appellant acknowledges that at the beginning of the charge amongst all of the other standard instructions, the jury was properly instructed that, “You must not speculate, however, about what the evidence there might have been or permit yourself to guess or make up theories without evidence to support them.” However, he specifically invited them to rely upon speculation and conjecture later in the charge, when he was instructing them on how to apply the law to the facts – which arguably was a much more influential part of the charge. Thus, when the charge is read as a whole, it cannot be said that the jury would have fully understood that they could only rely upon reasonable inferences arising out of the evidence. In light of the holes in the Crown’s case in this matter, these erroneous instructions were particularly problematic and on their own amount to reversible error.

Issue 5: Did the trial judge err in failing to correct misleading portions of the Crown’s closing address?

The trial judge invited the jury to adopt the Crown theory when in fact he should have corrected a number of unfairly prejudicial passages in the Crown’s closing address. The Crown’s closing was prejudicial in that he gave evidence and in that he erroneously emphasized that proof beyond a reasonable doubt did not equate to certainty. Defence counsel asked for a mistrial. The trial judge should have, at the very least, attempted to neutralize the unfairness caused by the Crown’s closing in the charge to the jury. He refused.

In his closing, the Crown had a duty to accurately and dispassionately review the evidence. He could not “misstate the evidence or make assertions for which there [was] no evidence”[109]. As stated by Blair J.A. in Mitchell, infra, “[w]here Crown counsel has failed to comply with these obligations, it is the duty of the trial judge to remedy the situation”[110]. In the case at bar, the Crown not only repeatedly mischaracterized the evidence such that he overstated the strength of the Crown’s case, but he also misstated the burden of proof.

In his closing, which only totaled 26 pages in length, the Crown repeatedly overstated the strength of the Crown’s case. The following portions of the closing reveal that he failed to accurately and dispassionately summarize the evidence:

i) Crown counsel asked the jury to speculate in order to reconcile the evidence that the individual on the video was not wearing white shoes, with the evidence of Ms. Fitzpatrick that the appellant was wearing white shoes that evening. He said:

I expect that the defence will say to you that you can see in the video that the person is not wearing white shoes and that Megan Fitzpatrick said the accused was wearing his white Phat Farm shoes when he had left her apartment and when he came back. She says that the next day he was washing them with bleach. They were his favourite shoes and he washed them regularly with bleach to keep them white. 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. The fact that he was washing them the next day was commonplace. He regularly washed them with bleach to keep them white. [111]

At the very least, the Crown had to ask Fitzpatrick if the appellant had any other shoes before he could suggest, contrary to her unchallenged evidence, that he was not wearing white shoes that evening.

ii) Crown counsel suggested that the hat worn by the individual in the video was consistent with the hat described by Fitzpatrick, in that it had a camouflage pattern and a wide rim. However, it was not possible to see whether the hat had a camouflage pattern on it from the video and moreover, Fitzpatrick did not say that the rim was wide, she only said that it was “square, kind of”.[112] Thus, Crown counsel was misleading and inaccurate when he said:

You cannot make a positive identification of the accused by looking at the video and comparing it to the appearance of the accused in court. Its quality is not sufficient for that, but what you can see is the clothing that he is wearing. He is wearing the hat that Megan described in her evidence, a camouflage type baseball cap with a wide rim. You can see the baseball cap and the wide rim.[113] [Emphasis added]

iii) Crown counsel suggested in his charge that the fact someone entered the building at 2:11 a.m. corroborated Fitzpatrick’s version of events when in fact her evidence was never to the effect that he left her apartment at 2 a.m. (it was approximately a 10-minute walk to the deceased’s building[114]). Instead, in-chief she testified that he left between 2 and 3 a.m. and in cross-examination – as well as in the statements made prior to trial – she estimated he left at around at 3 a.m. Therefore, the person entering the deceased’s building at 2:11 did not corroborate her version of events. Considering that there was, in fact, no evidence corroborating Fitzpatrick the following passage was very prejudicial:

Everything else in her description of his clothing matches that person we see entering [the deceased’s apartment on the video surveillance] with Robert Mills that evening. The timing is right, it’s eleven minutes after Megan estimates he left her apartment, she said between 2:00 a.m. and 3:00 a.m.. [115]

iv) Crown counsel suggested to the jury that the appellant had a motive to kill the deceased, specifically, that she “ripped [him] off”[116]. However, there was no evidence to support that theory. It would have been based on pure speculation. In fact, the same Crown counsel began his submissions on sentence with, “why did the offender kill Sonia? Why? The court has no answer, society has no answer and Sonia’s family has no answer.”[117]

v) Crown counsel asked the jury to find that, despite the fact the cut to the deceased’s finger was at least a few days old and had crusted over, the deceased applied adhesive bandages to that cut that evening since the wound may have “oozed”.[118] The Crown should have asked the pathologist if the wound could have oozed the evening of the offence before putting that suggestion to the jury. Otherwise, it invited the jury to rely on speculation and conjecture.

vi) Crown counsel emphasized to the jury more than once that the deceased was strangled for at least 4 minutes.[119] Since the pathologist only said that it “usually” takes applied force for “a period of minutes”, the Crown’s assertion that his evidence supported the fact that it was at least 4 minutes of applied force was inaccurate[120].

vii) Crown counsel emphasized that the deceased was “desperate” for money that day. The only evidence remotely relevant to such an assertion was the evidence that the deceased asked if she could borrow money from a friend; a friend who did not even know the deceased well enough to know she was involved in drugs. The appellant submits that it is a stretch from her evidence to the inference that the deceased was “desperate” for money at the time of death.

The appellant further takes issue with respect to two aspects of the Crown’s summary of the burden of proof. First, Crown counsel suggested that the jury need not be “certain” of the appellant’s guilt to convict and second, he further minimized the threshold by emphasizing that many other juries have convicted, a fact that was irrelevant to the jury’s duty. He said:

Proof beyond a reasonable doubt is the legal burden that rests on the Crown in every criminal case that is tried in Canada. It has been that way since before confederation. His Honour will explain the concept to you in his instructions but keep this in mind, it means the same thing the first time you’ll hear it as it will the last time you will hear it. Every person convicted of a crime in Canada has been shows to be guilty of it beyond a reasonable doubt. It is a standard met on a daily basis by evidence presented to juries like yourselves or judges sitting in judgment without a jury. It is an important but attainable standard. It is not proof to a certainty, a burden which would be unattainable.[121] [Both underscore and bold added]

The Crown informed the jury that the allegations did not have to be proven to “a certainty”. However, the allegations had to be proven to a “moral certainty”[122], but did not have to be proven to an “absolute certainty”. In fact, it is quite proper for a trial judge to instruct a jury, after providing a proper definition of reasonable doubt, that they should only convict if they are “sure” of the accused’s guilt, where “sure” means “certain”.[123] Thus, in effect, the Crown must prove the allegations to a “certainty”. Accordingly, the Crown’s closing was misleading on a pivotal principle in this case. Since the Crown informed the jury that the trial judge was going to provide them with the same definition of reasonable doubt as he had provided and since he asked the jury to keep in mind the way he phrased the definition, it was insufficient for the trial judge to simply state the correct law. He had a duty to draw the jury’s attention to the fact that the Crown’s definition was not entirely accurate.

The Crown’s summary of the burden of proof was furthermore unfairly prejudicial to the appellant in that Crown counsel referenced the fact that many other juries have had no difficulty in finding other accused guilty. The appellant submits that informing a jury that other juries have been able to convict is similar to informing a jury that other jury trials have led to miscarriages of justice in that both pieces of information are completely irrelevant and more importantly, may distract the jury from their duty.[124] The only possible reasons for the Crown to have included such information in his closing address would have been to minimize the threshold of proof beyond a reasonable doubt or to have put pressure on the jury to come to a unanimous decision. In either event, it was unfairly prejudicial. In light of the fact this was a murder trial, in which the Crown’s case of identification was tenuous, it was particularly crucial that the trial judge instruct the jury that it was irrelevant that other juries are able to convict on a daily basis.

Generally, the Crown minimized what should otherwise have been a high threshold. Defence counsel generally objected to the Crown’s closing and pleaded with the trial judge to obtain a transcript of the closing prior to charging the jury.[125] The trial judge refused and simply provided a standard instruction on proof beyond a reasonable doubt.

In Rose, infra the Supreme Court of Canada recognized the possible influence a closing address may have on a jury. The Court acknowledged “the powerful persuasive force which well-crafted and skillfully presented submissions may have in a jury trial”.[126] Hence, the need for the Crown, who should have been administering justice rather than seeking a conviction, to dispassionately and accurately summarize the evidence against the appellant. The above passages are examples in which the Crown instead stretched the evidence to suit his theory. They were far from accurate representations of the evidence and thus, the Crown failed to uphold his duty. Accordingly, the trial judge was required to correct these areas of the closing. Despite defence counsel’s pleas to provide a correcting instruction[127], the trial judge refused to do so. The trial judge’s failure to correct the Crown’s closing was significant, as it left the jury with the impression that the Crown’s case was much stronger than it was.

Issue 6: Did the trial judge err in instructing on post offence conduct?

The trial judge’s invitation to rely upon speculation was not the only problem with his instruction on post offence conduct. Generally, the trial judge should have corrected the Crown’s misleading suggestion that the appellant’s post offence conduct had probative value. Most of the post offence conduct could be explained by the fact the appellant committed another criminal offence, namely a breach of probation, and some of the post offence conduct was simply innocuous. The defence asked for a corrective instruction after the Crown heavily emphasized a number of items of post offence conduct that, in fact, had no probative value. The trial judge refused to accede to defence counsel’s requests.

Courts have recognized that evidence demonstrating a consciousness of guilt is “highly ambiguous and susceptible to jury error”.[128] In Hall, infra the Court of Appeal for Ontario recently recognized that post offence conduct is susceptible to being overemphasized since its probative value is founded in the jurors’ determination of what an innocent person would do in the circumstances – a very subjective exercise.[129] In light of the potential for misuse of consciousness of guilt evidence, appellate courts have emphasized that trial judges should actively instruct juries to disregard evidence that may be explained by evidence other than the appellant’s guilt[130] and trial judges should not simply leave it to the jury to determine whether the conduct is evidence of a consciousness of guilt.

In contrast to his duty, the trial judge refused to accede to the following requests from defence counsel[131]: 1) he refused to correct the Crown’s closing on post offence conduct; 2) refused to instruct the jury that any of the post offence conduct had no probative value; and, 3) most surprisingly, refused to instruct the jury that if they found there were multiple explanations for the post offence conduct, they had to assign it no probative value. Instead, he instructed the jury to determine whether the appellant acted the way he did after the offence, because he committed the offence or for some other reason. If, they find he acted the way he did because he committed the offence, then it could be used as probative evidence together with all the other circumstantial evidence. His instructions involved circular reasoning which has already been impugned by the Court of Appeal for Ontario[132], but more importantly, there was nothing in the form of a caution against relying upon the post offence conduct.

This was a significant error in light of the weight the Crown asked the jury to place on such evidence. In what was generally a tenuous Crown case, the Crown emphasized five[133] pieces of after-the-fact conduct at two different points in his closing. Of the five pieces of evidence emphasized by the Crown, Fitzpatrick admitted that two – namely, her evidence that the appellant left the room during the news[134] and her evidence that he put his clothes in a plastic bag to take with him when he left[135] – were not unusual and, in fact, were consistent with his typical behaviour. The other post offence conduct also had little to no probative value as it could equally be explained by the fact that the appellant was in breach of a court order by having contact with Fitzpatrick, as it could be explained by his guilt of the offence charged.

In the circumstances, it was incumbent on the trial judge to instruct the jury that some of the post offence conduct had “no probative value”. At the very least, he had to instruct them that if they found the conduct was equally explained by something other than a guilty conscious, they had to assign it no probative value. Not only did the trial judge erroneously allow the jury to find that all of the post offence conduct emphasized by the Crown had probative value, but he also refused to instruct them that the post offence conduct could not assist in determining whether the appellant was guilty of murder or manslaughter. The principle that a jury must be instructed that consciousness of guilt evidence cannot assist in determining the level of culpability in a homicide has been repeatedly emphasized by appellate courts. [136]

Generally, the trial judge erroneously refused to provide a proper limiting instruction on the post offence conduct. In light of the tenuous nature of the Crown’s case, these errors were not insignificant and they further impacted on the appellant’s right to a fair trial.

Issue 7: Did the trial judge err in refusing to instruct on intoxication?

The appellant submits that the trial judge erred in refusing to instruct the jury to consider the evidence of intoxication on the issue of the mens rea for murder, since there was uncontested evidence that the appellant was “very intoxicated” at the relevant time. Generally, trial judges must leave any defence with the jury for which there is an air of reality in the evidence.[137] With respect to when a trial judge must instruct the jury on the defence of intoxication in particular, McLachlin J. (as she then was) articulated the test in Lemky, infra. She said:

The question is whether the evidence of drunkenness was sufficient to permit a reasonable inference that the accused may not in fact have foreseen that his [actions] would cause her death.[138]

Applying that test to the case at bar, the issue was whether the jury could have reasonably inferred that, in light of the evidence the appellant was “very intoxicated”, he may have strangled the deceased to death without considering that his actions would likely cause her death. The appellant submits that since the pathologist did not rule out the possibility that force could have been applied for only a matter of seconds[139], there is an air of reality to the proposition that in a very intoxicated state, the appellant could have strangled the deceased without considering that she was likely going to die.

With respect to the evidence of intoxication, Fitpatrick agreed that the appellant was “very intoxicated” when he left her apartment and, according to the Crown theory, the jury could have inferred that the appellant consumed more alcohol and a significant[140] amount of cocaine prior to committing the offence. In particular, the Crown asked the jury to find as follows:

They shared the cigarettes, we know that, shared the wine, and likely shared the drugs.[141]

The appellant therefore may have been in such a state that in a matter of seconds, he strangled the deceased without considering whether death would ensue. Accordingly, the trial judge was required to leave the defence of intoxication with the jury. Not only did the trial judge refuse to accede to the defence’s request to leave intoxication[142], but the trial judge did not relate any evidence to the issue of the mens rea for murder. He thereby erred and, since it cannot be said that the verdict would necessarily have been the same[143], a new trial should be ordered.

Summary of the conviction appeal

There is no objective reason to find that Fitzpatrick’s trial testimony is true and her recantation is false. Accordingly, the recantation must meet the low threshold of “reasonably capable of belief”. At the very least, the fresh evidence reveals Fitzpatrick’s lack of respect for the oath and, in light of the fact the jury had difficulty relying upon her evidence without such information, there is a reasonably possibility the verdict would have been different had the jurors known.

Even if Fitzpatrick’s evidence at trial was credible – and the fresh evidence not admissible – the verdict was unreasonable. The Crown did no more than prove mere presence. If the evidence did support a finding of more than presence, it was weak and accordingly, at the very least, the trial judge had, but failed, to convey to the jury that mere presence was insufficient. Instead of ensuring that the jury did not leap from a finding of presence to a finding of guilt, the trial judge specifically invited the jury to rely upon “speculation” and “conjecture” to fill in the gaps in the Crown’s theory. He moreover erroneously invited to jury to make specific leaps in logic including finding that the appellant ingested wine and cocaine that evening without any evidentiary support. If, on the other hand, there was a basis to find that the appellant ingested wine and cocaine, in addition to the alcohol he consumed with Fitzpatrick, then there should have been an air of reality to the intoxication defence.

There is a live issue as to whether the appellant is factually innocent. In light of the fresh evidence or the unfairness of the trial the conviction should be quashed.

Sentence appeal

Generally, an appellate court can interfere with a sentence if the sentencing judge erred in principle or imposed a sentence beyond the appropriate range.[144] The appellant submits that the trial judge erred in principle in relying upon aggravating factors, which he did not find proven beyond a reasonable doubt. Although he specifically turned his mind to several sentencing principles, he failed to make any reference to that well-established principle[145]. More importantly, the aggravating factors he relied upon were not proven beyond a reasonable doubt. In relation to the circumstance of the offence, he found:

According to the coroner (sic), as I have indicated, there was a struggle by Ms. Gaudet for several minutes, and one can imagine that she pled for her life, and also the vulnerability of the victim, a 23 year-old man against a 54 year-old woman.

…

All murders are horrific, this one by strangulation which took place over a number of minutes, maybe as much as five. There was the struggle by Sonia Gaudet to save her life.[146]

The trial judge’s language suggests that he was not concerned with whether the aggravating factors were proven to the requisite standard. He said, “one can imagine that she pled for her life” and force was applied for, “maybe as much as five” minutes. In light of the burden, the trial judge should have been focusing on the shortest amount of time force was possibly applied, rather than on the longest.

Notably, as is discussed in issues 5 and 7 above, the pathologist agreed that it was possible force was applied for only a matter of seconds. Thus, if the trial judge had properly turned his mind to the appropriate standard of proof, he may have found that the appellant, in a “very intoxicated” state, applied force for a matter of seconds. In any event, the trial judge failed to apply the proper standard of proof and this Court should reconsider the appropriateness of the sentence imposed.

The appellant submits that the appropriate period of parole ineligibility is 10 years, which would leave the parole determination in the hands of the parole board. Notably, aside from the circumstances of the offence the only aggravating factor in this case was the appellant’s criminal record. He had two convictions for violence, for which the longest sentence he received was 2 months incarceration in addition to 2 months pre-trial custody. Considering his youth and support in the community – he has a supportive, educated family – there is a real possibility that he would be sufficiently punished, as well as rehabilitated after 10 years of incarceration.[147]

PART IV: RELIEF REQUESTED

The appellant respectfully submits that this Honourable Court should find that the verdict was unreasonable and accordingly quash the conviction and enter an acquittal. In the alternative, the appellant submits that this Honourable Court should quash the conviction and order a new trial. In the final alternative, the appellant submits that this Honourable Court should grant leave to appeal sentence, allow the appeal against sentence and reduce the period of parole ineligibility to 10 years.

Dated this day of December, 2011.

All of which is respectfully submitted by

Catriona Verner

Hicks Adams LLP

Barristers & Solicitors

238 King Street East

Toronto, Ontario

M5A 1K1

Tel: (416) 975-1700

Fax: (416) 925-8882

Schedule “A” – Authorities Cited

R. v. Palmer (1979), 50 C.C.C. (2d) 193 (S.C.C.)

R. v. Babinski (1999), 135 C.C.C. (3d) 1 (Ont.C.A.)

R. v. Truscott (2007), 225 C.C.C. (3d) 321 (Ont.C.A.)

R. v. M.H.C. (1991), 63 C.C.C. (3d) 385 (S.C.C.)

R. v. Snyder, [2011] O.J. No. 2635 (Ont.C.A.)

Reference re: Kelly (1999), 135 C.C.C. (3d) 449, (Ont.C.A. Goudge J.A. dissenting)

R. v. McCullough (2000), 142 C.C.C. (3d) 149 (Ont. C.A.)

R. v. P.P. [1992] O.J. No. 1799 (Ont.C.A.)

R. v. G.A. (1998), 123 C.C.C. (3d) 350 (Ont.C.A.

R. v. Seeley, [2000] O.J. No. 4325 (Ont.C.A.)

R. v. A.F., [1990] O.J. No. 1874 (Ont.C.A.)

R. v. Mallory, [2007] O.J. No. 236 (Ont.C.A.)

R. v. George, [2006] O.J. No. 3712 (Ont.C.A.)

R. v. Sauve (2004), 182 C.C.C. (3d) 321 (Ont.C.A.)

R. v. Arcuri (2001), 157 C.C.C. (3d) 21 (S.C.C.)

R. v. Skogman (1984), 13 C.C.C. (3d) 161 (S.C.C.)

U.S.A. v. Sheppard (1977), 30 C.C.C. (2d) 424 (S.C.C.)

R. v. Charemski (1998), 15 C.R. (5^th) 1 (S.C.C.)

R. v. Burke (1996), 105 C.C.C. (3d) 205 (S.C.C.)

R. v. S. (W.) (1994) 90 C.C.C. (3d) 242 (Ont.C.A.)

R. v. Seth (2001), 157 C.C.C. (3d) 189 (Ont.C.A.)

R. v. Yebes (1989), 36 C.C.C. (3d) 417 (S.C.C.)

R. v. Starr (2000) 147 C.C.C. (3d) 449 (S.C.C.)

R. v. Baltovich (2004), 191 C.C.C. 93d) 289 (Ont.C.A.)

R. v. Lawes (2006), 206 C.C.C. (3d) 15 (Ont.C.A.)

R. v. Adduono, [1940] O.R. 184-190 (Ont.C.A.);

R. v. Dunlop (1979), 47 C.C.C. (2d) 93 (S.C.C.)

R. v. Kirkness (1990), 60 C.C.C. (3d) 97 (S.C.C.)

R. v. Carty, [2010] O.J. No. 4302 (Ont.C.A.)

R. v. Riezebos (1975), 26 C.C.C. (2d) 1 (Ont.C.A.)

R. v. Pickton, [2009] B.C.J. No. 1251 (B.C.C.A.)

R. v. Charemski, (1998) 123 C.C.C. (3d) 225 (S.C.C.)

R. v. L.L., [2009] O.J. No. 2029 (Ont.C.A.)

R. v. Jacquard (1997), 113 C.C.C. (3d) 1 (S.C.C.

R. v. Morrissey (1995), 97 C.C.C. (3d) 193 ((Ont.C.A.)

R. v. Mitchell (2006), 212 C.C.C. (3d) 258 (Ont. C.A.)

R. v. Nugent (1995), 100 C.C.C. (3d) 89 (Ont.C.A.)

R. v. Rose (1998), 129 C.C.C. (3d) 449 (S.C.C.)

R. v. Jenkins (1996), 107 C.C.C. (3d) 440 (Ont.C.A.)

R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont.C.A)

R. v. Horan (2008), 237 C.C.C. (3d) 514 (Ont.C.A.)

R. v. Ferguson (2000), 142 C.C.C. (3d) 353 (Ont.C.A.)

R. v. Hall, [2010] O.J. No. 4603 (Ont.C.A.)

R. v. White (1998), 125 C.C.C. (3d) 385 (S.C.C.)

R. v. Marinaro (1994), 95 C.C.C. (3d) 74 (Ont.C.A.) at 81-2, 85 adopted at (1996), 105 C.C.C. (3d) 95 (S.C.C.)

R. v. Diu (2000), 144 C.C.C. (3d) 481 (Ont.C.A.)

R. v. Wiltse (1994), 19 O.R. 379 (Ont.C.A.)

R. v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont.C.A.)

R. v. Cinous (2002), 162 C.C.C. (3d) 129 (S.C.C.)

R. v. Osolin (1993), 86 C.C.C. (3d) 481 (S.C.C.)

R. v. Lemky (1996), 105 C.C.C. (3d) 137 (S.C.C.)

R. v. Robinson (1996), 105 C.C.C. (3d) 97 (S.C.C.)

R. v. Colpitts, [1966] 1 C.C.C. 146 (S.C.C.)

R. v. Rezaie (1996), 112 C.C.C. (3d) 97 (Ont.C.A.)

R. v. McKnight (1999) 135 C.C.C. (3d) 41 (Ont.C.A.)

R. v. Gardiner (1982), 68 C.C.C. (2d) 477 (S.C.C.)

R. v. Mathisen, [2008] O.J. No. 4382 (Ont.C.A.)

Appendix A – Summary of Fitzpatrick’s statements

i) Statement made on October 26, 2005

Fitzpatrick gave her first statement on October 26, 2005, the day after the appellant assaulted her and was taken into custody. On October 26, the police picked her up at her house and brought her to the station to give a statement. Although the statement was not under oath, Fitzpatrick was warned that she could be charged with obstruct for lying and it was videotaped.

On that date she told police that she could not remember what happened on January 4, 2005, which was not surprising considering almost 10 months had passed. In particular, they had the following exchange:

Fitzpatrick: I remember watching it [a segment about the murder] on the news.

Officer: Right, okay well the day that ah, she ah, was murdered was the ah, was the 5^th of January, 2005, okay and that particular day ah.

Fitzpatrick: He didn’t do it did he?

Officer: Well, I mean, we’re, we, I, I’m not gonna suggest that he did do it, but ah, we don’t know who did it at this point. Why, why would you ask that?

Fitzpatrick: Just because I think that’s why you have me here. Is he involved in it, like I don’t understand what’s going on.

Officer: Well to be quite honest, we’re not sure at this point.

Fitzpatrick: Oh, God.

Officer: Okay, ah, and, and I’m gonna give you some information ah, I just need to ask you a couple more questions okay. So what ah, what, what I wanna ask you is that um, I’m gonna help you a little bit here, is it was Tuesday night ah, Tuesday was the 4^th of January, Wednesday was the 5^th of January, so it was some time on ah, Wednesday after midnight that the est that we can tell at this point that she was murdered, so what I need you, you to do ah, Megan is I want you to think back, I know that’s a long time ago, but can you tell me ah, thinking back that when you watched the news and you found out that she was murdered, I want you to take your mind back to that time and you can, can you tell me, do you know where ah, Michael was on the night of her murder?

Fitzpatrick: Oh it was on a Tuesday or a Wednesday?

Officer: Tuesday night, Wednesday morning. She was found murdered ah, Wednesday morning.

Fitzpatrick: I can’t really exactly remember, but usually he was at my house at that time you know. I don’t remember him going out that you know sometimes I got to sleep and he stays up.

Officer: Okay, well let me ask you at that time, so right after Christmas, first week of January, was he actually staying at your place regularly or was he back?

Fitzpatrick: He would be there for a couple of days and then go for a couple of days.

Officer: Okay, so it’s possible he may have been there that night or may not have?

Fitzpatrick: Yeah.[148] [Emphasis added]

Therefore, although she did not implicate him in the offence, she did not give him an alibi or try to dissuade the police from believing it was him. In fact, when she was asked at the end of the interview if there was anything they should know about him, she said, “…to everyone else he’s a little angel and nice and quiet, but that’s why no one believes me when I tell them things about him”. [149] Moreover, she agreed to give a polygraph exam. [150]

At the preliminary hearing, Fitzpatrick explained her failure to make allegations in October 2005 on the basis that she feared the appellant who had been abusive. The October 2005 statement was therefore not introduced at the trial, since the Crown would have introduced evidence of the abuse in order to explain this prior inconsistent statement and the defence decided that the evidence of abuse was too prejudicial.

ii) Statement made on July 5, 2006

In her second statement, made on July 5, 2006, she implicated the appellant for the first time. She had not had any contact with the appellant since November 2005.[151] The police showed up at her place unexpectedly, 18 months to the day after the offence. Fitzpatrick was notably 23 years old and a single mother of two at the time. The police brought her to the station to give another videotaped statement. This time she was under oath. She essentially gave the same general version of events that she gave at the preliminary hearing and trial,[152] except without the same amount of detail. For example, at trial and at the prelimary hearing she described the reddish-brown blood under his nails, whereas in 2006 she did not mention seeing any blood on his hands. At trial and at the preliminary hearing, she described the blood pattern on this clothes, whereas in 2006 she simply stated that she saw blood on his clothes.[153] At trial, she estimated how long the appellant spent in the washroom and how long the water was running before she saw blood on his hands, whereas in 2006 she gave no time estimates. In 2006 she said the appellant left her apartment around 3 a.m., whereas in-chief at trial she said it was between 2 and 3 a.m., but then in cross agreed it was around 3 a.m.. The difference between 2 a.m. and 3 a.m. was significant since according to the video surveillance the only person who entered the deceased’s building who looked at all like the appellant, entered the building at 2:11 a.m..

Although Fitzpatrick implicated the appellant in this statement, she did not believe he would get convicted on her version of events.[154] She believed that he had been pressured by other people to be involved and that he did not commit the offence alone.[155] The appellant also highlighted the fact that at the end of the statement, Fitzpatrick said, “I’m never going to court to testify ever. I can’t do that.”

iii) Preliminary hearing

Fitzpatrick testified at the appellant’s preliminary hearing on January 14, 2008. She maintained the version of events provided in July 2006, including the fact he left her apartment around 3 a.m..[156] However, she added the fact she noted blood under his fingernails, a description of the blood on his clothes and an estimate of the length of time he was washing his hands. She had had no contact with the appellant since November 2005. She was still a single mother raising the appellant’s two children on her own.

iv) Statement made to police on November 30, 2009

On November 30, 2009 Fitzpatrick told police that the appellant had admitted to stabbing someone. Although she said it could have been a week before or possibly the night of the offence, she thought it “after that date”. In particular, she said that one night, when she was “in her sleep”, he told her, “I stabbed somebody in the shoulder and they ran away.”[157]

v) Trial

Fitzpatrick testified at the appellant’s trial on December 2 and 4, 2009. She still maintained the version of events provided in July 2006 with the details she added at the preliminary hearing. The only real change in her evidence was that instead of clearly stating that the appellant left around 3 a.m., she wavered between suggesting he left between 2 and 3 a.m. and suggesting he left at 3 a.m.[158] She still had had no contact with the appellant and she was still a single mother raising the appellant’s two boys.

vi) The Letter

The appellant was convicted on December 17, 2009. In March 2010 Fitzpatrick wrote the appellant a letter admitting that she had perjured herself at the appellant’s trial. In the letter, which was postmarked March 31, 2010, Fitzpatrick said inter alia:

….trust me, there was so many times I thought of comin clean, but I didn’t kno how after. To me, it’s 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?

…

I won’t 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 can’t change a person, so that was my only way.

…

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 I’m not sayin that justify’s all the mess that’s occurred, but how do I deal with it? And the future is what really scares me the most now, cuz the kids will either grow up thinking 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.[159] [Emphasis added]

At the time she wrote this letter, the appellant had not seen or been a part of his kids’ lives since October 2005. Aside from seeing him in court, Fitzpatrick had only seen the appellant twice since October 2005. The two times she saw him were when she visited him at the jail on February 19 and 28, 2010. Those were the only two times she visited him since he was incarcerated on April 23, 2007.

When she was first cross-examined under oath for the purposes of the appeal, she testified that she had had no contact with the appellant prior to writing the letter, aside from the two visits in February. When she was cross-examined the second time for the purposes of the appeal, she stated that they fully resurrected their relationship before she wrote the letter.

vii) The statements made to Thomas Klatt

The appellant hired a private investigator Mr. Thomas Klatt, to obtain a statement from Fitzpatrick. Mr. Klatt has 19 years experience with the Toronto Police Force and is an alumni of the Toronto Homicide Squad. He obtained two statements from Fitzpatrick. The only recording of the first statement – which was given on March 4, 2011 – was in his hand-written notes; however, she signed the notes acknowledging their accuracy. The second statement was given on April 28, 2011 and was digitally recorded.

In both statements, she admitted to perjuring herself. She stated that her trial evidence was all true, except that the appellant never said, “something terrible happened to Sonia”. In other words, she recanted the only part of her evidence linking the appellant to the offence.

The phone records – which were seized by the appellate Crown and which detailed every call between the appellant and Fitzpatrick, including the calls the appellant made to his sons – revealed that the appellant did not contact Fitzpatrick at all during the two weeks prior to her first statement to Klatt (no calls between February 18 and March 2). There were a total of two calls, totaling 10 minutes in length, made from the appellant to Fitzpatrick or his sons in the week prior to her second statement.

viii) Comments made to police on July 21, 2011

Two officers attended Fitzpatrick’s home on July 21, 2011. Although she generally would not tell them her version of events, she did tell them that no one had pressured or threatened her. She indicated more than once that she was aware that perjury was a crime and was concerned about what would happen to her children, as she was their only parent. She also told them that she had a new boyfriend in her life and was trying to move on, but this case kept on “following” and “weighing” on her.[160]

ix) The first post-trial cross-examination under oath

On September 27, 2011 Fitzpatrick was cross-examined by both the appellant’s counsel and the Crown. She maintained throughout that cross-examination that her evidence at trial was true, except for the fact that the appellant never said anything to the effect of, “something terrible happened to Sonia”. Instead, according to her version of events on September 27, 2011, she said that when she asked him on January 5, 2005 what had happened, he told her to “Get the fuck out of here.” [161]

She provided a number of justifications for creating the false version of events. She said:

1) The police convinced her that he was involved and she felt that he should be punished if he was in fact involved. She said, “If he did do it, he needs to be put away, you know what I mean? That’s how I felt.”;[162]

2) She felt that he should spend more time in custody in any event, in light of the fact that when he assaulted her in 2010 he only spent 10 months in custody and then was “walking around like a free man” while she had to relocate and take care of their children; [163]

3) She also wanted to punish him for how he had treated their children; [164]

4) Fitzpatrick also testified that she felt the police attending her residence more than once unannounced was a “nuisance” and felt that if she provided them with the information they wanted, they would “deal with him” and “leave [her] out of it”; [165] and,

5) She added that there were many other reasons as well. [166]

She fully understood that she was admitting to committing a criminal offence and understood there might be ramifications. She stated that she felt some pressure from the appellant who had asked her multiple times to contact her lawyer, but that was the extent of his pressure. Aside from that, she unequivocally stated that she had not been threatened, coerced or intimidated in any way and that she was confessing to this offence out of guilt, out of her “own sense of what is right and wrong”.[167]

She was made aware that through the appellant, both counsel had copies of letters she had written to the appellant over the previous year. She was also made aware that counsel had the records outlining all of the phone contact the two of them had had over the year, as well as every time she had visited him in jail.

She was unshaken during a vigorous cross-examination by the Crown. Not only did she maintain her version of events that the appellant never mentioned Sonia on January 5, 2005, but she provided credible explanations for all of her previous statements and there was no inherent inconsistencies or independent evidence contradicting her new version of events.

xi) The search of Fitzpatrick’s home

Pursuant to a search warrant, three male police officers thoroughly searched Fitzpatrick’s home on September 29, 2011. They entered her apartment with a key they obtained from a third party, to find Fitzpatrick asleep on her couch in her pyjamas. One officer yelled at her and called her a “liar”. She felt he was purposefully being intimidating at a point when she was already visibly upset. They “tore her house apart” searching for letters the appellant had sent her, which she admitted during the September 27 cross-examination she had been keeping in her house. They “destroyed everything in there” and it took three days to clean up. She agreed that the experience was “traumatizing”[168]. She told them she wanted to give another statement immediately. However, she was advised to call a lawyer first and after doing so, decided to postpone giving another statement.

xii) The statement to police dated October 17, 2011

After September 29, 2011 police followed up with Fitzpatrick’s suggestion she may want to give another statement. In particular, two officers came to her apartment on October 12, 2011 asking if she was willing to give a statement and again she indicated she would like further time to consider her options. On October 13, 2011 she called the police and agreed to come in at 1 p.m. on October 17, 2011. However, when they police had not heard from her by 10 a.m. on October 17, 2011, they called her again and left a message. She gave a statement later that day. The statement was made on video, but not under oath.

At the beginning of the statement, it was made clear that Fitzpatrick was concerned that she was going to be charged with perjury and held in custody that night. She gave a statement retracting her recantation. She explained that she perjured herself, so that the appellant would be released from custody and, although she had no interest in a relationship with him, she wanted him to help raise their children.

In addition to explaining why she lied to Klatt and under oath on September 27, 2011, she also had to explain why she lied in the letter dated March 30, 2011. She told police that she wrote the letter for the purposes of the appeal. The plan, which she said the two of them discussed, was that she would write the letter and he would show it to his lawyer. However, her evidence with respect to how this plan was developed was full of inconsistencies:

1) She repeatedly stated that they discussed the plan over the phone (see pp. 7, 8, 26). However, in contrast, she also said that they never discussed legal issues over the phone since they were both under the impression that all of their conversations were recorded[169] (see p.33). In fact, on account of being so careful about discussing legal issues on the phone, the first time she learned that the letter had in fact been given to his lawyer was from Klatt in March, 2011 – a year after it was sent[170];

2) She unequivocally said in the statement that it was her idea to write this false letter in the first place (see p.8) and that she was the one who told him to show it to his lawyer (see p. 30). In contrast, when asked how it came up in conversation, she suggested it was his idea to write the letter. She said:

Like I – maybe I said like you know, I wish I could try to help you, I wish I could change what I said, I wish I could, you know….but I can’t. And then he maybe said, yeah, you can. And that’s kind of how it came up. (see p. 26)

3) Although on page 26 of the statement, she was able to tell police “kind of how it came up” (see above paragraph), when asked on page 12 of the same statement about the content of the conversation when the subject first arose, she said, “I can’t remember. Honestly like I can’t even remember how it came up, I really can’t even remember.”

4) She said at two different times in the statement that the plan only came up “briefly” over the phone (see pp. 7 and 8). However, he also agreed that the issue came up during “visits” and “phone conversations” (see p.26);

5) In contrast to her claim on October 17, 2011 that the subject came up during “visits”, on September 27, 2011 she stated that they did not discuss her testimony at all since there were other people within earshot[171];

6) Also in contrast to her claim on October 17, 2011 that the subject came up during “visits” was the fact that she also claimed that the plan to write this letter was only formed a month prior to the date it was sent – March 31, 2010 – and there were no visits within a month of that date;

7) Fitzpatrick further contradicted herself with respect to whether her intention was really ever for the letter to be shown to anyone. Although she told police on October 17, 2011 that the letter was intended for the appellant’s lawyer, in July she told the same officer that she “felt it was wrong Kassa was handing over letters with person info in it.”[172]; and,

8) Fitzpatrick contradicted herself with respect to whether they had had contact prior to her writing the letter. Despite knowing that both counsel had all the phone records, on September 27, 2011 Fitzpatrick maintained that they had no phone contact prior to the date she sent the letter.[173]

There were other inconsistencies in that statement, which further reveal her flippant attitude towards telling the truth even at this late stage of the investigation. The inconsistencies include:

1) She told police on October 17, 2011 that her friends had visited the appellant in custody.[174] However, the prison records reveal that none of her friends had visited him;

2) She told police on October 17, 2011 that she had had a serious nine-month long relationship with a man other than the appellant in 2010.[175] However, the correspondence between the appellant and her demonstrated that they were committed to each other for the majority of that year; and,

3) She told police on October 17, 2011 that the reason she initially felt compelled to tell the truth – specifically to tell police that the appellant was involved in the offence – was because the police threatened to give her a polygraph exam.[176] However, she was in fact threatened with a polygraph exam on October 26, 2005[177] when she maintained that he was not involved and there was no suggestion of a threat of a polygraph on July 5, 2006, when she in fact first inculpated the appellant.

xiii) The second cross-examination under oath

On November 23, 2011 Fitzpatrick was cross-examined a second time under oath by both Crown and defence counsel. She maintained the version of events she provided police on October 17, 2011, namely that her trial testimony was the truth. Her evidence on November 23, 2011 contained further inconsistencies, implausibilities and revealed her general flippant attitude towards the oath. The weaknesses included:

A. Her change in version of events between the time of trial and November 23, 2011

1) Fitzpatrick testified at trial that the only things the appellant said to her the morning of January 5, 2005 were, “What’d you want?” and, “Something terrible happened to Sonia.” In fact, at trial she unequivocally testified that he did not say anything else.[178] In her initial recantation she said that the she had properly recounted the exchange at trial, except that instead of saying, “Something terrible happened to Sonia,” he said, “Get the fuck out of here.” In her retraction of her recantation, she said that in addition to saying, “Something terrible happened to Sonia,” he also said, “Get the fuck out of here”.[179] Accordingly, on November 23, 2011 she effectively adopted part of her trial testimony and part of her recantation and effectively thereby admitted that part of her trial testimony was false.

2) She also changed her version of events with respect to the appellant’s admission that he stabbed someone. Prior to trial, Fitzpatrick told police that around the time of the offence the appellant admitted to stabbing someone. Although she indicated he “possibly” made that admission the night of the offence, she thought “it was after that date”. Under cross-examination on November 23, 2005, she unequivocally adopted the suggestion that he made that admission the night of the offence and in fact, it could account for the blood on his clothes.

B. Fitzpatrick’s attitude towards these proceedings

3) She first implicated the appellant on July 6, 2005 but did not tell police about the stabbing until November 30, 2005 on the eve of trial and after she had given 2 statements under oath. When asked why she withheld this information – which could have accounted for the blood on his clothes and the post offence conduct – for over 3 years, she explained that no one asked. Although, she was repeatedly asked what happened that night. She effectively admitted that she was misleading under oath, but repeatedly emphasized that she did not lie.

4) Although she has admittedly obstructed justice in this serious matter, she has shown no remorse. Her only reason for retracting her recantation was “Michael is not worth” her life being interrupted and her home being searched.[180] She therefore retracted out of concern for herself and her children. She never suggested that she retracted out of justice for Sonia Gaudet.

5) According to her retraction of her recantation, she initially falsely recanted in this serious matter, simply to get Michael out of custody to assist in raising her kids. If true, this further demonstrates her lack of respect for the oath.

C. Inconsistencies with respect to the plan to write the letter

6) She repeatedly stated that they discussed the plan to write a false letter over the phone.[181] However, in contrast, she also said that they never discussed legal issues over the phone since they were both under the impression that all of their conversations were recorded.[182] When this inconsistency was put to her during cross-examination, she explained that they spoke in code so that they – two people who had only seen each other in person twice over the previous five years – could understand each other and no one else could. However, if, in fact they could communicate in code surely he would have let her know that he had in fact given that letter to his lawyer. Instead, she did not learn that he had given anyone the letter until March 2011[183];

7) She unequivocally said to police that it was her idea to write this false letter in the first place[184] and that she was the one who told him to show it to his lawyer.[185] In contrast, under cross-examination by the Crown on November 23, 2011, she unequivocally said that it was the appellant’s idea. Under cross-examination by the defence, she at one point said it was both of their ideas and then she reverted to the position that it had been her idea.

8) She told police on October 17, 2011 that the subject of writing the letter came up during visits, as well as phone calls.[186] In contrast, under cross-examination on November 23, 2011 she matter-of-factly stated that they only discussed the plan over the phone.[187] However, later in the cross-examination on November 23, 2011 she agreed that they also communicated on this topic in letters. [188]

D. Other inconsistencies revealing her flippant attitude towards the oath

9) Fitzpatrick told police on October 17, 2011 that her friends had visited the appellant in custody.[189] However, under cross-examination she admitted that her friends had never visited him and she seemed to be at a loss to explain her earlier statement[190];

10) Under cross-examination on November 23, 2011 she claimed that everything she said in the letter written in March 2010 was a lie, including the fact that she wanted the appellant to suffer[191]. However, she admitted on October 17, 2011 that she did in fact feel that he should have served more time for the abuse.[192]

11) On November 23, 2011 she also claimed that it did not upset her greatly when she learned that the appellant had given the letters she had written to him to his lawyer. However, her language to police on October 17, 2011 suggested otherwise:

I didn’t know that you guys had any other letters until you told me the first time you came to my house. That set me off like I was pissed, right, really, really pissed off.

xiv) The correspondence

For the fullness of the record, a large amount of correspondence between the appellant and Fitzpatrick is also included in the fresh evidence application. Some of the letters were voluntarily provided, however most of them were seized by police. There are some letters that they in fact sent to each other. There are as well as number of draft letters that Fitzpatrick never ended up sending to the appellant. In the over 500 pages of correspondence, there is no specific reference to what happened that night or whether or not she lied at his trial. There are some comments that may be interpreted as saying that what she said at trial was the truth. Crown counsel highlighted the following passage as the most telling:

I’ve been thinking about this a lot lately and I’m unhappy, sad and a little angry that my name is all over the paper and I’m portrayed as vindictive. Mike, you should know that this didn’t happen because of that. I know that’s what a lot of people (your family, your lawyer) are thinking and I’m willing to deal with this negativity because I know and you know what happened and that’s all that matters to me at the end of the day. It would really hurt me if that’s what you thought. You know EVERYTHING you told me and you know what you did. So I am here confused as to why I’m the only person being claimed. But like I said, I’m willing to deal with it. [The capitals are in the original letter; the underscore is added.][194]

However, that passage cannot be reconciled with her current version of events that all he said to her was, “something terrible happened to Sonia”. She specifically stated on October 17, 2011 that she cannot say that the appellant killed the deceased.[195] It must be kept in mind that this was only a draft of a letter, which she may not have intended on ever sending; instead, it may simply have been an expression of her emotions on paper.[196]

On the other hand, there are also a number of comments that could be interpreted as supporting a finding that she perjured herself. Those comments, found in the appellant’s letters to Fitzpatrick, include:

1. (undated letter) “People will think I’m crazy and wonder why I would want anything to do with you but they don’t know that I’ve put you through your own personal hell too.” (see the consolidated fresh evidence at p. 1065)

2. (undated letter) “Once this whole mess is cleared up, if it is ever cleared up” I want to run away. (see the consolidated fresh evidence at p. 1066)

3. (letter dated April 25, 2010) “Don’t think I hold any grudges. We family matter what happened in the past. I love you too much to get mad at you. You can only hurt me or break my heart but I’ll never hate you for anything….” (see the consolidated fresh evidence at p. 1298)

4. (letter dated May 14, 2010) “I thought that after all this I would never come back to you and I would treat you like shit but it’s complete opposite.” (see the consolidated fresh evidence at pp. 1126-1128 – note p. 1127 is out of order).

5. (letter dated July 17, 2010) “I say shit when I’m mad but I ain’t gonna lie I felt that way for 3 years. But I forgave u. It bothers me sometimes too cuz I love you so much and never expected it. But trust me, if I didn’t forgive you or even had a ounce of hate I wouldn’t want to spend the rest of my life with u”. [note that 3 years would be from the day she first told that false story - July 6, 2006 – until she visited him in jail Feb. 2010] (see the consolidated fresh evidence at p. 1166)

6. (undated letter) “O.K. I know I said I wouldn’t trip but you piss me off sometimes. I can’t believe your not sorry for what you did. Why the fuck did I forgive you for if your not even sorry.” (see the consolidated fresh evidence at p. 904)

7. (undated letter) “you have to suck in your pride and ask me to forgive you instead of trying to justify” what you’ve done. (see the consolidated fresh evidence at p. 905).

Appendix B – Timeline for this case

January 5, 2005 This was the offence date.

October 25, 2005 The appellant assaulted Fitzpatrick. He was taken into custody.

October 26, 2005 Fitzpatrick gave a statement to police. She did not try to dissuade them from believing he committed the offence, but she could not remember what happened on January 5, 2005.

November, 2005 November 2005 was the last time Fitzpatrick had contact with the appellant prior to the proceedings (see preliminary hearing transcript dated Jan. 15, 2008 at p. 42).

July 5, 2006 The appellant was out of custody. Police unexpectedly arrived at Fitzpatrick’s home to see if she will give a statement. She went to the station and gave a statement inculpating the appellant.

April 23, 2007 The appellant was arrested.

January 14 and 15, 2008 Fitzpatrick testified at the appellant’s preliminary hearing.

November 30, 2009 Fitzpatrick gave a statement suggesting the appellant stabbed someone within a week of the offence. She believed that the stabbing was after the homicide.

December 2 and 4, 2009 Fitzpatrick testified at the appellant’s trial.

December 17, 2009 The appellant was convicted.

February 19, 2010 Fitzpatrick visited the appellant from 1:56 to 3:08 p.m. with her sister Alison.

February 28, 2010 Fitzpatrick visited the appellant alone from 2:15 to 3:05 p.m..

March 31, 2010 Fitzpatrick put a letter in the mail apologizing for perjuring herself.

April 12, 2010 The appellant was sentenced to life imprisonment, with a 13-year period of parole ineligibility

April 22, 2010 Fitzpatrick visited the appellant with their son Devin from 6:03 to 7 p.m..

-(Alison Fitzpatrick visited HWDC on Sunday, April 25 at 6:53 pm to 9:15 pm)

May 2, 2010 Fitzpatrick visited the appellant with their son Xavier from 6:15 to 6:41 p.m..

May 2010 The appellant moved to Millhaven.

December 13, 2010 The appellant served and filed his affidavit as fresh evidence.

February 2011 The appellant retained a private investigator, Klatt

February 22, 2011 Klatt visited Fitzpatrick’s home to obtain a statement, she informed him that it was not a convenient time. With respect to recent contact with the appellant prior to this date, the appellant had called her once on February 11 and four times on February 18, 2011 for a total (for all five calls) of approximately 27 minutes.

March 1, 2011 Fitzpatrick contacted Klatt and agreed to give a statement.

March 4, 2011 Klatt conducted the first interview, in which Fitzpatrick admitted to committing perjury. Fitzpatrick refused to be digitally recorded, but agreed to sign Klatt’s notes to confirm their accuracy. In terms of recent contact with the appellant prior to this date, the appellant had not contacted her since February 18, 2011.

April 14, 2011 Klatt contacted Fitzpatrick and they agreed to meet April 21.

April 21, 2011 Fitzpatrick forgot about her scheduled meeting with Klatt on April 21, 2011 (this demonstrates the importance Fitzpatrick placed on this process). It was re-scheduled for April 28, 2011.

April 28, 2011 Fitzpatrick gave a digitally recorded statement admitting that she committed perjury. With respect to contact she had had with the appellant in the week leading up to this statement, she (or her children) spoke to him twice: once on April 24 for 4 minutes and once on April 2 for 9 minutes.

July 21, 2011 Two officers attended her address. She refused to give a formal statement, but implied to them that not all of her trial testimony was true.

Sept. 27, 2011 Fitzpatrick formally recanted under oath and her recantation withstood vigorous cross-examination by both the Crown and the defence.

Sept. 29, 2011 Police searched her home. Three officers obtained a key from a third party and entered her apartment to find her asleep on the couch in her pyjamas. One officer raised his voice and called her a “liar” in a “very mean way” even though she was already visibly upset. They “tore apart” her apartment. She agreed that the experience was “traumatizing”. She informed the officers that “Micheal is not worth it” and she wanted to give another statement immediately. Police advised her to talk to a lawyer. She spoke to a lawyer and decided to wait before giving a statement.

October 12, 2011 Two officers visited her apartment to see if she was still willing to give another statement. It was not a good time for her and the police left.

October 13, 2011 Fitzpatrick contacted police and arranged to come in on October 17, 2011.

October 17, 2011 When Fitzpatrick still had not called by 9:57 a.m. on October 17, 2011, police called her and left a message. She returned the call at 12:30 and indicated she would be at the station for 1:30 p.m.. She did attend the station that afternoon and provided a statement reverting to her trial testimony.

November 23, 2011 Fitzpatrick was cross-examined under oath again by both the Crown and the defence. She maintained that the retraction of her recantation was accurate.

Court File No. C51984

COURT OF APPEAL FOR ONTARIO

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

-and-

HAILEMIKAEL KASSA

Appellant

FACTUM OF THE APPELLANT

Catriona Verner

Hicks Adams LLP

Barristers

238 King Street East

Toronto, Ontario

M5A 1K1

Tel: (416) 975-1700

Fax: (416) 925-8882

Counsel for the Appellant

Court File No. C51984

COURT OF APPEAL FOR ONTARIO

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

- and -

HAILEMIKAEL KASSA

Appellant

FACTUM OF THE APPELLANT

Catriona Verner

HICKS ADAMS LLP

Barristers & Solicitors

238 King St. East

Toronto, Ontario

M5A 1K1

Tel: (416) 975-1700

Fax: (416) 925-8882

Counsel for the Appellant

Court File No. C51984

COURT OF APPEAL FOR ONTARIO

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

- and -

HAILEMIKAEL KASSA

Appellant

FACTUM OF THE APPELLANT

INDEX

Item Page/s

Part I: Statement of the Case 1

Part II: Summary of the Facts 1

Overview of the Appeal 1

Overview of the Facts 1/2

The events in or around the deceased’s apartment on January 5, 2005 3

Fitzpatrick’s evidence regarding the events on January 5, 2005 4

Other circumstantial evidence 7

i) The Cigarette butts 7/8

ii) Consciousness of guilt evidence 9

Part III: The Issues and the Law 10

Issue 1: Should the fresh evidence be admitted? 10

i) A summary of the proposed fresh evidence 11

A. Her change in version of events between the time of trial and her latest statement 13

B. Fitzpatrick’s attitude towards these proceedings 14

C. Inconsistencies with respect to the plan to write the letter 15

D. Other inconsistencies revealing her flippant attitude towards the oath 16

ii) The law on the admissibility of recantations 18

iii) Applying the law to this case 21

1) Fitzpatrick’s recantation was not inherently unreliable 21

2) It cannot be said that she should be believed because her evidence was rich

in detail 22

3) The circumstances of the recantation were not inherently unreliable 22

4) The jury had issues relying upon Fitzpatrick’s evidence 22

5) The retraction of the recantation did not render the recantation incredible 22

1. First of all, it must be emphasized that Fitzpatrick’s trial evidence was weak 23

2. The fresh evidence revealed Fitzpatrick’s lack of respect for the oath 24

The fresh evidence revealed Fitzpatrick was conniving 24

The fresh evidence revealed motives to fabricate 25

The fresh evidence revealed an alternate explanation for much of the evidence 25

Issue 2: Was the verdict unreasonable 25

Issue 3: Did the trial judge err in relating the evidence to the issue of identity, such

that it resulted in an unfair trial 28

Issue 4: Did the trial judge err in instructing the jury that they could rely upon

“speculation” and “conjecture”? 32

Issue 5: Did the trial judge err in failing to correct misleading portions of the Crown’s

Closing address? 35

Issue 6: Did the trial judge err in instructing on post offence conduct? 41

Issue 7: Did the trial judge err in refusing to instruct on intoxication? 43

Summary of the conviction appeal 45

Sentence appeal 46

Part IV: Relief Requested 48

Schedule “A” – Authorities Cited 49

Appendix A – Summary of Fitzpatrick’s statements 51

Appendix B – Timeline for this case 65

[1] See transcript, Vol. 2, Evidence of Chamberlain, p.530, l.3-l.4

[2] See transcript, Vol. 1, p.12, l.25-l.30; p.14, l.30-p.17, l.32; p.169, l.9-l.29; p.174, l.20-l.22; p. 182, l.1-l.30

[3] See transcript, Vol. 1, p.173, l.10-l.20; p.185, l.29-p.186, l.16; Vol. 2, Evidence of Chamberlain, p. 524-p.530. Note that the deceased’s mother testified that she spoke to the deceased once that evening and it was around 11 p.m., however her evidence was generally incomprehensible. (see Vol. 1, p. 194) Moreover, the deceased told Chamberlain that the phone call she took while he was there was from her mother. Thus, the evidence would weigh in fact of a finding that Chamberlain was the last witness she spoke to that evening at 9:40.

[4] See transcript, Vol. 1, 199, l.1-p.205, l.10

[5] The fire started in a chair a couple feet from where the deceased was found. The fire Marshall recognized that a cigarette may have fallen down the side of the cushion, which, after 1 to 2 hours, would have set the chair aflame. Although, the fire Marshall could not rule out the fire had been intentionally started, he did agree that the fact there was no accelerant, nor any inflammable items set on the chair, was supportive of a finding that it was accidentally lit (see transcript, Vol. 1, Evidence of the fire Marshall, p.311, l.1-p.l.18; p.299, l.8-l.25).;

[6] See transcript, Vol. 1, Evidence of the fire Marshall, p. 314, l.5-l.15

[7] See transcript, Vol. 2, Evidence of Dr. Fernandes, the pathologist, p.505, l.30-p.506, l.32; p.514, l.22-p.515, l.11

[8] See transcript, Vol. 2, Evidence of the pathologist, p.520, l.24-l.33; p.508, l.25-p.509, l.26; p.515, l.11-p.519, l.12

[9] See transcript, Vol. 1, Evidence of Fitzpatrick, p.10, l.1 –p.13, l.28-p.79, l.29-p.80, l.3

[10] See transcript, Vol. 1, Evidence of Fitzpatrick, p.18, l.32-p.19, l.14

[11] See transcript, Vol. 1, Evidence of Fitzpatrick, p.101, l.5-l.7. Note that both before and after trial she estimated he left at 3 a.m. (see cross-examination on Sept. 27, 2011 at pp. 29, 45, 49, 51, 56 and cross-examination on Nov. 23, 2011 at p.39)

[12] See transcript, Vol. 1, Evidence of Fitzpatrick, p.22, l.1-p.23, l.15; p.13, l.7-l.28 (evidence of intoxication: p. 20, l.20-l.33; p.101, l.25-l.30

[13] Notably, although it was not before the jury, Fitzpatrick has maintained that the man in the video is NOT the appellant (see cross-examination on Sept. 27, 2011 at p.17 and cross-examination on Nov. 23, 2011 at pp. 48-9).

[14] See Exhibit 42, a surveillance videotape of 95 Hess Street South, dated January 4, 2005; transcript, Vol. 1, Evidence of Fitzpatrick, p.32, l.15-l.28; p.87, l.10-l.22; Vol. II, Closing address by Crown counsel, p.682, l.25-p.683, l.20

[15] To be specific, Fitzpatrick said he called from a blocked number and informed her that he would be home in 5 minutes. Five minutes later, he called her from the lobby.

[16] See transcript, Vol. 1, Evidence of Fitzpatrick, p.25, l.1-p.32, l.23; p.106, l.5-l.18; p.108, l.1-p.109, l.24

[17] See transcript, Vol. 2, Evidence of the pathologist, p.513, l.5-l.32; p.482, l.12-p.482, l.1; p.505, l.30-p.506, l.32; p.514, l.22-p.515, l.11; Evidence of the CFS witness, Gerald Anderson, p.568, l.15-p.574, l.16

[18] See transcript, Vol. 1, Evidence of Fitzpatrick, p.29 l.20-p.30, l.3; p.106, l.5 –p.111, l.13; Evidence of the CFS expert, p.578, l.1-l.30

[19] See transcript, Vol. 2, Evidence of the Chambelain

[20] See transcript, Vol. 1, Evidence of Officer Thorne, p.351, l.17-l.25; p.367, l.15-p.369, l.13; Vol. 2, Evidence of Officer Peters, p. 429, l.15-p.430, l.19; p.443, l.22-p.444, l.11

[21] See transcript, Evidence of Officer Peters, p. 429, l.15-p.430, l.19

[22] See Transcript, Evidence of Fitzpatrick, P. 79, l.5-l.12

[23] See Exhibit 4, Statement of the appellant dated March 23, 2005, Appeal book pp. 284-5

[24] See transcript, Vol. 1, Evidence of Fitzpatrick, p.64, l.23-p.66, l.23; p.118, l.4-p.119, l.17

[25] R. v. Arcangioli (1994), 87 C.C.C. (3d) 289 (S.C.C.)

[26] See transcript, Vol. 1, Evidence of Fitzpatrick, p.53, l.10-p.54, l.23; p.68, l.10-p.69, l.9

[27] See transcript, Vol. 1, Evidence of Fitzpatrick, p.69, l.16-p.70, l.20

[28]Consolidated fresh evidence at pp. 415, 480-483, 574-577, 810: the letter, the transcript of the statement to Klatt dated April 28, 2011, pp.30-31, 32-3; the transcript of the cross-examination dated Sept. 27, 2011 at pp. 76-9; the transcript of the cross-examination dated Nov. 23, 2011 at p. 82

[29] Consolidated fresh evidence at pp. 565: cross-examination dated September 27, 2011, p. 67

[30]Consolidated fresh evidence at pp. 565: cross-examination dated September 27, 2011, p. 67

[31]Consolidated fresh evidence at pp. 564: cross-examination dated September 27, 2011, p. 66

[32]Consolidated fresh evidence at pp. 567: cross-examination dated September 27, 2011, p. 69

[33]Consolidated fresh evidence at pp. 566, 581: cross-examination dated September 27, 2011, p. 68 and 83

[34] Consolidated fresh evidence at pp. 736, 759, 802-805: transcript of cross-examination dated Nov. 23, 2011 at pp. 8, 31, 74-7

[35] Consolidated fresh evidence at pp. 674: statement to police given on October 17, 2011 at p. 35

[36] Evidence of Fitzpatrick at trial, Vol. I, p. 30, l.29-l.31

[37] Consolidated fresh evidence at pp 749-750: transcript of cross-examination dated Nov. 23, 2011, pp. 21-2

[38] Note that defence counsel had that disclosure at the time they decided not to cross-examine her on that issue. Since she though the stabbing had not occurred on the same night as the offence, the evidence would have been simply evidence of bad character and would not have assisted explaining Fitzpatrick’s damaging evidence.

[39] Consolidated fresh evidence at pp. 771-772, 781-782, 798: cross-examination of Fitzpatrick dated November 23, 2011, pp. 43-4, 53-4, 70; Cross-examination of Fitzpatrick dated Sept. 27, 2011, pp.37-8

[40] Consolidated fresh evidence at pp 772-775, 781-782: cross-examination of Fitzpatrick dated November 23, 2011, pp. 44-7, 53-4

[41] Consolidated fresh evidence at pp. 805-806, 814, 820-822, 834, 837: transcript of cross-examination dated November 23, 2011, pp. 77-8, 86, 92-4, 106, 109

[42] Consolidated fresh evidence at pp. 674: statement to police given on October 17, 2011 at p. 35

[43] Consolidated fresh evidence at pp. 617, 807: transcript of cross-examination dated September 27, 2011, at p. 119; transcript of cross-examination dated Nov. 23, 2011 at p. 79

[44] Consolidated fresh evidence at pp. 646, 647, 665: statement to police given on October 17, 2011, at pp. 7, 8, 26; transcript of cross-examination dated Nov. 23, 2011, pp. 65, 66-7

[45] Consolidated fresh evidence at pp. 672: statement to police given on October 17, 2011, at p33. Note that she similarly stated during the cross-examination on September 27, 2011 that they “don’t talk about any legal stuff over the telephone ever”, see p.106

[46] Consolidated fresh evidence at pp. 793-794: cross-examination dated November 23, 2011, pp. 65-6

[47] Consolidated fresh evidence at pp. 817: transcript of cross-examination dated Nov. 23, 2011, p. 89 (Also note that if, in fact they could have communicated in code surely he would have let her know that he had in fact given the letter to his lawyer. Instead, she did not learn that he had given anyone the letter until March, 2011 – a year after it was sent. See cross-examination dated Sept. 27, 2011 p. 101).

[48] Consolidated fresh evidence at pp. 647: statement to police given on October 17, 2011, p. 8

[49] Consolidated fresh evidence at pp. 669: statement to police given on October 17, 2011, p. 30

[50] Consolidated fresh evidence at pp. 747-748: transcript of cross-examination dated November 23, 2011, pp. 19-20

[51] Consolidated fresh evidence at pp. 815-816, 819, 822, 823: transcript of cross-examination dated November 23, 2011, pp. 87-8, 91, 94, 95

[52] Consolidated fresh evidence at pp. 665: statement to police given on October 17, 2011, p. 26

[53] Consolidated fresh evidence at pp. 793, 794-795: transcript of cross-examination dated November 23, 2011, pp. 65, 66-7

[54] Consolidated fresh evidence at pp. 836-837: transcript of cross-examination dated November 23, 2011, pp. 108-9

[55] Consolidated fresh evidence at pp. 646, 647, 665: statement to police given on October 17, 2011, pp. 7, 8, 26

[56] Consolidated fresh evidence at pp. 793, 795, 816, 831: transcript of cross-examination dated Nov. 23, 2011 at pp. 65, 67, 88, 103

[57] Consolidated fresh evidence at pp. 674: statement dated October 17, 2011, p.35

[58] Consolidated fresh evidence at pp. 837-838: transcript of cross-examination dated November 23, 2011, pp. 109-110

[59] Consolidated fresh evidence at pp. 671: statement dated October 17, 2011, p.32

[60] Consolidated fresh evidence at pp. 20: statement dated October 26, 2005, p. 20

[61] Consolidated fresh evidence at pp. 584: transcript of cross-examination dated Sept. 27, 2011 at p. 86

[62] Consolidated fresh evidence at pp. 761-763: transcript of cross-examination dated Nov. 23, 2011 at p. 33-5

[63] Consolidated fresh evidence at pp. 779-783: transcript of cross-examination dated November 23, 2011, pp. 51, 55

[64] Consolidated fresh evidence at pp. 676: statement dated October 17, 2011, p. 37

[65] Consolidated fresh evidence at pp. 810-811: transcript of cross-examination dated November 23, 2011, pp. 82-3

[66] Consolidated fresh evidence at pp. 669, 673, 680-681: statement to police dated October 17, 2011, pp. 30, 34, 41-2

[67] R. v. Palmer (1979), 50 C.C.C. (2d) 193 (S.C.C.) at 205; R. v. Babinski (1999), 135 C.C.C. (3d) 1 (Ont.C.A.) at pp. 22-36; R. v. Truscott (2007), 225 C.C.C. (3d) 321 (Ont.C.A.) at para. 99

[68] R. v. Babinski, supra at para. 54-5

[69] R. v. Babinski, supra at para. 65

[70] R. v. M.H.C. (1991), 63 C.C.C. (3d) 385 (S.C.C.)

[71] R. v. Babinski, supra at para. 61

[72] R. v. Snyder, [2011] O.J. No. 2635 (Ont.C.A.) at para. 54

[73] R. v. Babinski, supra at para. 62;R. v. Snyder, supra at para. 61

[74] R. v. Snyder, supra at para. 44

[75] R. v. Snyder, supra at para. 54

[76] Reference re: Kelly (1999), 135 C.C.C. (3d) 449, (Ont.C.A. Goudge J.A. dissenting)

[77] R. v. Snyder, supra

[78] Reference re: Kelly, supra, R. v. Palmer, supra, R. v. McCullough (2000), 142 C.C.C. (3d) 149 (Ont. C.A.)

[79] R. v. P.P. [1992] O.J. No. 1799 (Ont.C.A.), R. v. G.A. (1998), 123 C.C.C. (3d) 350 (Ont.C.A.), R. v. Seeley, [2000] O.J. No. 4325 (Ont.C.A.), R. v. A.F., [1990] O.J. No. 1874 (Ont.C.A.), R. v. Mallory, [2007] O.J. No. 236 (Ont.C.A.), R. v. George, [2006] O.J. No. 3712 (Ont.C.A.), R. v. M.H.C., supra. The Court has also overturned convictions when the recanting witness was not the key witness: R. v. Babinski, supra, R. v. Sauve (2004), 182 C.C.C. (3d) 321 (Ont.C.A.)

[80] Fitzpatrick decided to give another statement, because “Mike isn’t worth it”. She particularly expressed concern about further contact with the police.

[81] R. v. Seeley, [2000] O.J. No. 4325

[82] See transcript, Vol. I, p. 101, l.5-l.7

[83] Furthermore, according Consolidated fresh evidence at pp. 515, 767, Fitzpatrick stated that was not him on the video (see cross-examination dated Sept. 27, 2011 at p. 17 and cross-examination dated Nov. 23, 2011 at p.39)

[84] Consolidated fresh evidence at pp. 527, 543, 547, 549, 767: transcript of cross-examination dated Sept. 27, 2011 at pp. 29, 45, 49, 51, and transcript of cross-examination dated Nov. 23, 2011 at p.39

[85] Consolidated fresh evidence at pp. 787, 788-789: transcript of cross-examination dated November 23, 2011, pp. 59, 60-1

[86] R. v. Arcuri (2001), 157 C.C.C. (3d) 21 (S.C.C.); R. v. Skogman (1984), 13 C.C.C. (3d) 161 (S.C.C.); U.S.A. v. Sheppard (1977), 30 C.C.C. (2d) 424 (S.C.C.); R. v. Charemski (1998), 15 C.R. (5^th) 1 (S.C.C.); R. v. Burke (1996), 105 C.C.C. (3d) 205 (S.C.C.) at para. 7; R. v. S. (W.) (1994) 90 C.C.C. (3d) 242 (Ont.C.A.) at 252

[87] Chamberlain testified that he left her apartment around 9:40 p.m. (see Vol. II, p. 529, l.5-l.10)

[88] The fire Marshall could only say that the fire started at least 2 hours prior to when the firemen first arrived (see Transcript Vol. I, p.314, l.5-l.15). The firemen were contacted at 7:50 a.m. (see Transcript Vol. I, p.199, l.1-l.3)

[89] The appellant submits that as presented at trial, this post offence conduct could not be evidence that he actually strangled the deceased. Moreover, in light of Fitzpatrick’s post-trial statements, this post-offence conduct can be completely explained by the fact he admitted to stabbing a male on the night of the offence. Accordingly, it has no probative value (see Arcangioli, supra).

[90] R. v. Seth (2001), 157 C.C.C. (3d) 189 (Ont.C.A.) at para 80; Also see: R. v. Yebes (1989), 36 C.C.C. (3d) 417 (S.C.C.) at para. 26

[91] R. v. Yebes , supra (S.C.C.) at p.432

[92] R. v. Starr (2000) 147 C.C.C. (3d) 449 (S.C.C.) at para. 7-8; Submissions by Crown counsel, transcript Vol. II, pp. 660-1

[93] Charge to the jury, p. 46, l.13-l.18

[94] Consolidated fresh evidence at pp. 690: statement dated Oct. 17, 2011, at p. 51

[95] R. v. Yebes, supra at para. 24

[96] In relation to whether the appellant was the assailant, the trial judge also noted that the offence had to have been committed between midnight and 5:45 a.m..

[97] R. v. Baltovich (2004), 191 C.C.C. 93d) 289 (Ont.C.A.) at para. 117-8 and R. v. Lawes (2006), 206 C.C.C. (3d) 15 (Ont.C.A.)

[98] R. v. Adduono, [1940] O.R. 184-190 (Ont.C.A.); R. v. Dunlop (1979), 47 C.C.C. (2d) 93 (S.C.C.); R. v. Kirkness (1990), 60 C.C.C. (3d) 97 (S.C.C.)

[99] R. v. Carty, [2010] O.J. No. 4302 (Ont.C.A.) at para. 37, R. v. Riezebos (1975), 26 C.C.C. (2d) 1 (Ont.C.A.); R. v. Pickton, [2009] B.C.J. No. 1251 (B.C.C.A.) at para. 211

[100] R. v. Charemski, (1998) 123 C.C.C. (3d) 225 (S.C.C.) at para. 13

[101] R. v. L.L., [2009] O.J. No. 2029 (Ont.C.A.); R. v. Jacquard (1997), 113 C.C.C. (3d) 1 (S.C.C.)

[102] R. v. Morrissey (1995), 97 C.C.C. (3d) 193 ((Ont.C.A.) at 52

[103] See Transcript of the Charge to the jury, p.52, l.20-l.25

[104] See Transcript of the Charge to the jury, p. 51, l.19-l.32

[105] See Exhibit 4, Statement of the appellant dated March 23, 2005, Appeal book pp. 284-5

[106] Evidence of Fitzpatrick, see vol. I, p. 20, p. 85-6

[107] Pre-charge submissions, transcript Vol. I, pp. 617-634

[108] See Transcript of the Charge to the jury, p. 23

[109] R. v. Mitchell (2006), 212 C.C.C. (3d) 258 at para. 18; Also see: R. v. Nugent (1995), 100 C.C.C. (3d) 89 (Ont.C.A.) at 96 and R. v. Rose (1998), 129 C.C.C. (3d) 449 (S.C.C.)

[110] R. v. Mitchell, supra at para. 19

[111] See Transcript, Closing address by the Crown, Vol. II, p.683, l.5-l.20

[112] See Transcript, Evidence of Fitspatrick, Vol. I, p. 33, l.15-l.25

[113] See Transcript, Closing address by the Crown, Vol. II, p. 682, l.24-l.31

[114] See Transcript, Evidence of Fitzpatrick, Vol. I, p. 101, l.16-l.22

[115] Closing submissions by Crown counsel, Vol II of the trial transcripts, p. 683, l.20-l.27

[116] See Transcript, Closing address by the Crown, Vol. II, p. 665, l.12-l.22

[117] See Transcript, Submissions on Sentence by Crown counsel, Vol. II p. 758, l.25-l.28

[118] See Transcript, Closing address by the Crown, Vol. II, p.677, l.2-l.9

[119] See Transcript, Closing address by the Crown, Vol. II, p.667, l.10-l.25; p.685, l.23-l.28

[120] Although the pathologist stated that it took several minutes for death to occur after force was applied, he did not say that it took several minutes of applied force to cause death. He agreed that force could be applied for as little as 15 to 20 seconds to cause a loss of consciousness and, even if the force was released soon after consciousness was lost, death could still ensue. Moreover, he admitted that he was aware of instances of strangulation where it only took a matter of seconds of applied force to cause death. (see 463, l.10-p.454, l.6; p.509, l.18-p.510, l.6)

[121] See Transcript Vol. II, Closing address by Crown counsel, p. 669, l.17-l.31

[122] R. v. Jenkins (1996), 107 C.C.C. (3d) 440 (Ont.C.A.) at para. 67

[123] R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont.C.A) at para. 38

[124] R. v. Horan (2008), 237 C.C.C. (3d) 514 (Ont.C.A.) at para. 69

[125] See Transcript, Vol. II, Submisisons by defence counsel pp.689-690

[126] R. v. Rose, supra at para. 104 and 23; also see para. 108; Also see: R. v. Ferguson (2000), 142 C.C.C. (3d) 353 (Ont.C.A.) at para. 41

[127] See Transcript, Vol. II, Submisisons by defence counsel pp.689-690

[128] R. v. White (1998), 125 C.C.C. (3d) 385 (S.C.C.) at para. 21-2

[129] R. v. Hall, [2010] O.J. No. 4603 (Ont.C.A.) at para. 131

[130] see R. v. Arcangioli, supra at 299 and R. v. White (1998), 125 C.C.C. (3d) 385 (S.C.C.) at 404

[131] See Transcript, Vol. I, Submissions by counsel, pp. 123-4,Vol. II, Submissions by counsel, pp. 639-46, 650

[132] R. v. Hall, supra

[133] See Transcript, Vol. II, Closing address by Crown counsel, pp. 667, l.25-p.669, l.7; pp. 687, l.14-p.688, l.2; The Crown emphasized the following pieces of after-the–fact conduct: 1) the appellant left the room when the murder came on the news; 2) the appellant left the apartment when the police called the next day; 3) the appellant told Fitzpatrick to remember that he loves her, if something happened to him; 4) the appellant put his clothes in a bag beside the door; and, 5) the appellant threatened to stab Fitzpatrick if she informed police what she had witnessed.

[134] See Transcript, Vol. I, Evidence of Fitzpatrick, p. 116, l.15-l.27

[135] See Transcript, Vol. I, Evidence of Fitzpatrick, p.114, l.10-l.24

[136] R. v. Marinaro (1994), 95 C.C.C. (3d) 74 (Ont.C.A.) at 81-2, 85 adopted at (1996), 105 C.C.C. (3d) 95 (S.C.C.); Also see: R. v. Diu (2000), 144 C.C.C. (3d) 481 (Ont.C.A.) at 523-4; R. v. Wiltse (1994), 19 O.R. 379 (Ont.C.A.) at 384; R. v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont.C.A.) at 238-241

[137] R. v. Cinous (2002), 162 C.C.C. (3d) 129 (S.C.C.); R. v. Osolin (1993), 86 C.C.C. (3d) 481 (S.C.C.)

[138] R. v. Lemky (1996), 105 C.C.C. (3d) 137 (S.C.C.) at para. 17; Also see: R. v. Robinson (1996), 105 C.C.C. (3d) 97 (S.C.C.)

[139] The pathologist could only say that it “usually” takes “a period of minutes” of applied force to cause the symptoms shown by the deceased, but that there were instances of strangulation where it only took a matter of seconds of applied force to cause death. In chief, he testified that where force is applied to the neck, consciousness could be lost in a matter of seconds and it “takes several minutes for death to result”. Although he stated that it took several minutes for death to occur by strangulation after force was applied, he did not say that it took several minutes of applied force to cause death (Vol. II of the transcript, pp. 463-4). In cross-examination, he agreed that force could be applied for as little as 15 to 20 seconds to cause a loss of consciousness and, even if the force was released soon after the loss of consciousness, death could still ensue (Vol. II of the transcript pp. 509-10). In re-examination, he testified that in order to produce the symptoms he noted in the deceased, it “usually takes…a period of minutes of application of that force” (Vol. II of the transcript, pp.520-1).

[140] The Crown asked the jury to find that the appellant ingested cocaine with the deceased and according to the pathologist, the level of cocaine in the deceased’s system was “significant” and, in fact, potentially lethal. Although not lethal in this case (see p. 518).

[141] See Transcript, Vol. II, Closing address by the Crown, p. 671, l.9-l.11

[142] See Transcript, Vol. II, Submissions by counsel, pp.614-635

[143] R. v. Colpitts, [1966] 1 C.C.C. 146 (S.C.C.) at 149

[144] R. v. Rezaie (1996), 112 C.C.C. (3d) 97 (Ont.C.A.) at 103; R. v. McKnight (1999) 135 C.C.C. (3d) 41 (Ont.C.A.) at 53

[145] R. v. Gardiner (1982), 68 C.C.C. (2d) 477 (S.C.C.)

[146] Reasons for sentence, transcript Vol. II, p. 799, l.10-l.15; p.800, l.1-l.7

[147] For a recent strangulation case in which a 10-year-period of parole ineligibility was imposed at the trial level see: R. v. Mathisen, [2008] O.J. No. 4382 (Ont.C.A.)

[148] Fresh evidence application, October 26, 2005 statement, pp.11-12

[149] Fresh evidence application, October 26, 2005 statement, p.21

[150] Fresh evidence application, October 26, 2005 statement, p.20

[151] Fresh evidence application, Transcript of preliminary hearing dated January 15, 2008, pp.40-43

[152] Fresh evidence application, July 5, 2006 statement, p.31-4

[153] Fresh evidence application, July 5, 2006 statement, p.33

[154] Fresh evidence application, Letter dated March, 2010

[155] Fresh evidence application, July 5, 2006 statement, p.74

[156] Fresh evidence application, preliminary hearing transcript dated January 14, 2008, p.20

[157] Fresh evidence application, statement dated November 30, 2009

[158] Evidence of Fitzpatrick, Trial transcript Vol. I, p. 22, l.25-l.32

[159] Fresh evidence application, letter postmarked March 31, 2010

[160] Fresh evidence application, notes of Officers Reid and Rodzoniak dated July 21, 2011

[161] Fresh evidence application, cross-examination dated September 27, 2011, p. 127

[162] Fresh evidence application, cross-examination dated September 27, 2011, p. 67

[163] Fresh evidence application, cross-examination dated September 27, 2011, p. 67

[164] Fresh evidence application, cross-examination dated September 27, 2011, p. 66

[165] Fresh evidence application, cross-examination dated September 27, 2011, p. 69

[166] Fresh evidence application, cross-examination dated September 27, 2011, p. 68 and 83

[167] Fresh evidence application, cross-examination dated September 27, 2011, p.76-9

[168] Fresh evidence application, transcript of cross-examination dated Nov. 23, 2011, pp. 8, 31, 74, 75-6, 77

[169] Note that she similarly stated during the cross-examination on September 27, 2011 that they “don’t talk about any legal stuff over the telephone ever”, see p.106

[170] Fresh evidence application, transcript of cross-examination dated September 27, 2011, p.101

[171] Fresh evidence application, transcript of cross-examination dated September 27, 2011, p.61

[172] Fresh evidence application, notes of Officer Reid dated July 21, 2011

[173] Fresh evidence application,

[174] Fresh evidence application, statement dated October 17, 2011, p.35

[175] Fresh evidence application, statement dated October 17, 2011, p.31

[176] Fresh evidence application, statement dated October 17, 2011, p.32

[177] Fresh evidence application, statement dated October 26, 2005, p. 20

[178] Evidence of Fitzpatrick at trial, Vol. I, p. 30, l.29-l.31

[179] Fresh evidence application, transcript of the cross-examination dated Nov. 23, 2011, pp. 21-2

[180] Fresh evidence application, transcript of cross-examination dated November 23, 2011, pp. 86, 92-4, 106, 109

[181] Fresh evidence application, statement to police given on October 17, 2011, pp. 7, 8, 26

[182] Fresh evidence application, statement to police given on October 17, 2011, p33. Note that she similarly stated during the cross-examination on September 27, 2011 that they “don’t talk about any legal stuff over the telephone ever”, see p.106

[183] Fresh evidence application, transcript of cross-examination dated September 27, 2011, p.101

[184] Fresh evidence application, statement to police given on October 17, 2011, p. 8

[185] Fresh evidence application, statement to police given on October 17, 2011, p. 30

[186] Fresh evidence application, statement to police given on October 17, 2011, p. 26

[187] Fresh evidence application, transcript of cross-examination dated Nov. 23, 2011, pp. 65, 66-7

[188] Fresh evidence application, transcript of cross-examination dated November 23, 2011, pp. 108-9

[189] Fresh evidence application, statement dated October 17, 2011, p.35

[190] Fresh evidence application, transcript of cross-examination dated November 23, 2011, pp. 109-110

[191] Fresh evidence application, transcript of cross-examination dated Nov. 23, 2011, pp. 51,55

[192] Fresh evidence application, statement dated October 17, 2011, p. 37

[193] Fresh evidence application, statement to police dated October 17, 2011, pp. 30, 34, 41-2

[194] Fresh evidence application, transcript of cross-examination dated Nov. 23, 2011, pp. 24-5

[195] Fresh evidence application, statement to police dated Oct. 17, 2011, p. 51

[196] Fresh evidence application, statement to police dated Oct. 17, 2011, p. 17

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