I. INTRODUCTION

On May 31, 1984, Mr. Kelly (or "the Applicant") was convicted of the first degree murder of his wife, Jeanette Kelly. Mrs. Kelly fell to her death from the balcony of the Kellys' 17^th floor Toronto apartment on the afternoon of March 29, 1981. At trial, Dawn Taber testified that she was present and witnessed the Applicant drop his unconscious wife over the balcony. The Applicant testified at trial that his wife was standing on a stool fixing a rattle on the balcony when she fell, and that Ms. Taber was not at his apartment that day. The Applicant's appeal of his conviction to the Ontario Court of Appeal was dismissed on November 22, 1985. The Supreme Court of Canada denied his application for leave to appeal the conviction on February 28, 1986.

In December 1993, the Applicant applied for a review of his first degree murder conviction. The main ground advanced in support of the application was the partial recantation by Dawn Taber of her trial evidence. Also, new information was submitted from scientific experts that questioned the validity of the re-enactment evidence presented by the Crown at trial.

On November 25, 1996, then Minister of Justice, the Honourable Allan Rock, referred the Applicant's case to the Ontario Court of Appeal, pursuant to paragraph 690(c) of the Criminal Code. The following specific questions were referred to the Court of Appeal for its opinion:

1. In the circumstances of this case, would the new information from Dawn Taber be admissible on appeal to the Court of Appeal?

2. In the circumstances of this case, would the new information from the scientific experts be admissible on appeal to the Court of Appeal?

In his reasons for referral, Minister Rock stated:

If the Court of Appeal for Ontario concludes, in answer to the questions I have referred to the Court, that the new information from either Dawn Taber or the scientific experts would be admissible on appeal, I am satisfied that in those circumstances it would be an appropriate exercise of my discretion under paragraph 690(b) of the Criminal Code to refer the matter to the Court of Appeal for Ontario for hearing and determination by that Court as if it were an appeal by the Applicant. In the event the Court of Appeal for Ontario were to conclude that neither the new information from Dawn Taber nor the new information from the scientific experts would be admissible on appeal, I would consider that opinion in assessing the appropriate action to be taken in response to the application.

On May 21, 1999, the Ontario Court of Appeal responded to the Reference by advising that none of the new information presented would be admissible on appeal. In a dissenting opinion, Goudge J.A. was of the opinion that the new information from Ms. Taber should be admitted on appeal and he would have ordered a new trial. However, he agreed that the new information from scientific experts would not be admissible on appeal to the Court of Appeal.

As a result of the response from the Ontario Court of Appeal, I have undertaken a final review and analysis of the application. After careful examination, I have concluded that in all of the circumstances, any further action under section 690 or a referral to the Supreme Court of Canada is inappropriate.

I will outline the factors that have led to this conclusion. First, I will set out the nature of the remedy provided by section 690 of the Criminal Code, the role of the Minister of Justice, a brief summary of the facts, and the opinions received from the Ontario Court of Appeal in response to the questions posed by my predecessor, the Honourable Allan Rock. Secondly, I will review the Applicant's submissions raised in support of the request for further relief. Finally, I will provide the reasons why I have decided such further relief is inappropriate.

II. THE NATURE OF THE SECTION 690 REMEDY

Section 690 of the Criminal Code allows the Minister of Justice to direct a new trial or a new hearing "if after inquiry [the Minister] is satisfied that in the circumstances a new trial or hearing, as the case may be, should be directed." The Minister may also refer to the Court of Appeal any question on which the Minister desires the assistance of that Court. It is not the function of the Minister of Justice to retry the case.

In his decision concerning the application of W. Colin Thatcher issued on April 14, 1994, Minister Rock listed the guiding principles that govern the exercise of the discretionary powers set out in section 690. These principles are the following:

1. The remedy contemplated by section 690 is extraordinary. It is intended to ensure that no miscarriage of justice occurs when all conventional avenues of appeal have been exhausted.

2. The section does not exist simply to permit the Minister to substitute a ministerial opinion for a jury's verdict or a result on appeal. Merely because [the Minister] might take a different view of the same evidence that was before the court does not empower [the Minister] to grant a remedy under section 690.

3. Similarly, the procedure created by section 690 is not intended to create a fourth level of appeal. Something more will ordinarily be required than simply a repetition of the same evidence and arguments that were before the trial and the appellate courts. Applicants under section 690 who rely solely on alleged weaknesses in the evidence, or on arguments of law that were put before the court and considered, can expect to find that their applications will be refused.

4. Applications under section 690 should ordinarily be based on new matters of significance that either were not considered by the courts or that occurred or arose after the conventional avenues of appeal had been exhausted.

5. Where the Applicant is able to identify such "new matters", the Minister will assess them to determine their reliability. For example, where fresh evidence is proffered, it will be examined to see whether it is reasonably capable of belief, having regard to all of the circumstances. Such "new matters" will also be examined to determine whether they are relevant to the issues of guilt. The Minister will also have to determine the overall effect of the "new matters" when they are taken together with the evidence adduced at trial. In this regard, one of the important questions will be "is there new evidence relevant to the issue of guilt which is reasonably capable of belief and which, taken together with the evidence adduced at trial, could reasonably be expected to have affected the verdict?"

6. Finally, an Applicant under section 690, in order to succeed, need not convince the Minister of innocence nor prove conclusively that a miscarriage of justice has actually occurred. Rather, the Applicant will be expected to demonstrate, based on the analysis set forth above, that there is a basis to conclude that a miscarriage of justice likely occurred.

III. THE FACTS OF THE CASE

On the afternoon of March 29, 1981, Mrs. Kelly fell to her death from the 17^th floor balcony of the apartment she shared with the Applicant. At the 1984 trial, Dawn Taber testified that she was present in the apartment and witnessed the Applicant drop his wife from the balcony.

Briefly, Ms. Taber testified that she arrived at the Kellys' apartment on March 29, 1981, sometime after lunch. She let herself into the building through the back door with a key she had retained from when she had lived with the Kellys the previous year. She testified that the Kellys were arguing when she arrived. Mrs. Kelly told Ms. Taber that she was flying to Italy that afternoon and suggested that Ms. Taber wait for her and drive her to the airport.

Ms. Taber testified that as she waited in the den, the argument between the Kellys continued. Ms. Taber heard a scream from Mrs. Kelly, then a noise of something being struck, and then silence. Ms. Taber testified that she left the den and saw Mrs. Kelly lying on the floor in the hallway with the Applicant standing over her. Then, as Ms. Taber watched from the living room, the Applicant lifted his wife, carried her to the balcony, and dropped her over the railing. Ms. Taber walked out onto the balcony, looked down, and collapsed. She did not see a kitchen stool on the balcony.

Ms. Taber testified that the Applicant calmed her, told her that everything would be okay, and said that he loved her. He then helped her to her feet, escorted her by elevator to the 25^th floor, and put her on an express elevator that went directly to the ground floor. Before they parted, he told her that he would take care of everything and told her not to talk to anyone. She left the building through the underground garage door and returned to her boyfriend's home where she had been residing.

As well as the direct eyewitness evidence from Dawn Taber, the Crown also presented a body of circumstantial evidence against the Applicant. The Crown contended that it had proven the Applicant's guilt both on the testimony of Ms. Taber, and on the circumstantial evidence. The Crown contended that even if the jury rejected Ms. Taber's evidence, it could convict based on the circumstantial case.

The Crown alleged that the Applicant needed the insurance proceeds from his wife's death to support his extravagant lifestyle. A forensic accountant testified that during 1980 and into 1981, the Applicant was living beyond his means and was spending $3.50 for every $1.00 he earned during that period. The accountant showed that the Applicant required an infusion of capital in 1981 if he intended to maintain that lifestyle.

The Crown led evidence about the unhappy state of the Kellys' marriage. The Applicant had been having an affair with Janice Bradley at the time of his wife's death. He went on a pre-arranged trip to Hawaii with Ms. Bradley on April 6, 1981, nine days after his wife's death. The Applicant and Ms. Bradley moved to France and married in 1982.

The Crown presented evidence of the Applicant's inconsistent accounts of his wife's death and argued that his explanations of how Mrs. Kelly fell to her death were implausible. The Crown also suggested that Mrs. Kelly knew too much about her husband's illegal activities.

The Crown led evidence of experiments conducted by the police under the supervision of Eric Krueger, a mechanical engineer. The Crown submitted that those experiments revealed that, based on the description of his wife's fall that the Applicant gave to the police, he could not have reached her before she fell from the balcony. Therefore, the Applicant's description of having grabbed Mrs. Kelly while she was falling was implausible.

Ms. Taber had given several divergent pre-trial police statements. On April 4, 1981, she initiated contact with the police. The police had no prior knowledge of her involvement with the Kellys. At that time, she told the police that she had not seen the Kellys since November 1980, but that she had had an affair with the Applicant and they had discussed moving together to France and changing their identities. She informed the police that the Applicant had talked to her about increasing the life insurance policies on Mrs. Kelly. ¹

Between April 4, 1981 and February 10, 1983, the police and Ms. Taber had contact on several occasions. However, it was not until February 10, 1983 that Ms. Taber told the police that she had been in the Kellys' apartment on March 29, 1981. She was thereafter interviewed by the police on February 21 and 22, 1983, and stated that she had been in the den when the Applicant threw his wife over the balcony. Ms. Taber then travelled to Toronto and was interviewed by the police on March 1, 1983. Dr. Peter Rowsell, a psychiatrist retained by the police, was also present. In that session, she confirmed that she was at the Kellys' apartment on March 29, 1981 and admitted that she watched from the living room as the Applicant dropped his wife over the balcony. On March 3, 1983, Ms. Taber swore an affidavit to that effect before an Ontario Provincial Court judge. She maintained this version at the preliminary hearing and at trial.

At trial, Ms. Taber was thoroughly cross-examined by defence counsel on her testimony and the fact that she had given prior contradictory statements to the police. She steadfastly maintained that the version of events she was providing at trial was the truthful account of what occurred on March 29, 1981. Defence counsel argued that the Crown's case rested solely on Ms. Taber's evidence. He characterized her as "one of the most bizarre human beings that has ever testified in a Canadian courtroom", a "complete stranger to the truth", and a compulsive liar who should not be believed.

At trial, the Applicant testified that he did not kill his wife. He denied that Ms. Taber was at his apartment on March 29, 1981. He denied that he and Ms. Taber had ever had an affair. He described his activities and those of his wife on March 29, 1981. The Applicant testified that his wife was standing on a stool fixing a rattle on the balcony when she fell. He was making tea in the kitchen. He heard a noise and ran toward the balcony and saw his wife falling. He managed to get his hands around her legs, but could not save her. He ran to the kitchen, telephoned the front desk to report the accident, and took the elevator to the ground floor.

After arriving at the scene, the police entered the Kellys' apartment. A kettle was boiling in the kitchen and two teacups were on the counter. A kitchen stool was on the balcony.

The Applicant admitted that he had given different accounts of the fall to different people. However, he denied that he had money problems and testified that he had earned unreported income between 1976-1981 in the amount of $400,000.00 by surreptitiously carrying money over the Mexican border into the United States.

The Applicant was convicted of first degree murder. The Applicant's appeal to the Ontario Court of Appeal was dismissed on November 22, 1985. The Supreme Court of Canada denied his application for leave to appeal on February 28, 1986.

IV. THE SECTION 690 CRIMINAL CODE APPLICATION

As stated above, Mr. Kelly submitted his section 690 Criminal Code application in December 1993. In support of the application, two affidavits dated December 17, 1993 and March 11, 1994 and sworn by Ms. Taber were submitted.

Although Ms. Taber maintained in those affidavits that she was present at the apartment on March 29, 1981, she stated that she left the apartment while Mrs. Kelly was lying unconscious on the floor. She did not witness the Applicant actually drop his wife over the balcony as she testified at trial.

In the first affidavit, she stated that her trial testimony was the result of oppressive police practices and subornation. In her second affidavit, Ms. Taber contended that she may have been hypnotized by Dr. Peter Rowsell into believing that she had witnessed the actual murder.

Ms. Taber's recantations differed from her trial testimony only in that she no longer claimed to have seen the Applicant drop his wife over the balcony. She still maintained that she had been at the Kellys' apartment that day, leaving while Mrs. Kelly was lying unconscious on the floor. Therefore, her revised information was still in direct conflict with the Applicant's evidence that Ms. Taber was not at his apartment on March 29, 1981.

Counsel acting for the Minister during the investigation of the application made arrangements to interview Ms. Taber in May 1995. During this interview, Ms. Taber withdrew the allegation that her trial testimony was the product of police pressure or subornation. This interview was to be continued at a later date, but despite numerous attempts to re-schedule, it was never completed.

My predecessor, the Honourable Allan Rock reviewed the application and concluded that the new information provided by Ms. Taber, and the new information from scientific experts submitted by the Applicant should be referred to the Ontario Court of Appeal. In addition to the substantial new information that accompanied the questions on Reference, further information and evidence were gathered during the course of the Reference proceedings. Evidence was received from many witnesses and numerous scientific experts. Copies of Ms. Taber's files, diaries, and tape recordings she had made of various telephone conversations were also obtained and considered by the Court of Appeal.

V. THE REFERENCE PROCEEDINGS BEFORE THE ONTARIO COURT OF APPEAL

In October 1997, Ms. Taber testified before the Ontario Court of Appeal. Her cross-examination and re-examination were continued thereafter under oath, out of court.

Ms. Taber told the Court of Appeal that, after careful consideration, she now realized that she could not have been at the Kellys' apartment on March 29, 1981. The basis for this conclusion was the fact that her boyfriend had been watching his two favourite television shows, ET Weekend and Wrestling, when she asked him if she could borrow his car to go visit the Kellys. In December 1993, she went to the Harvard Law School library where she found TV guides for that time period. She realized that the shows her boyfriend had been watching were broadcast in Toronto at 12:30 p.m. and 1:00 p.m. on Saturday, March 28, 1981, not Sunday, March 29, 1981.

Ms. Taber was unsure of the exact date in December 1993 when she made this discovery. It may have been after she swore the December 17, 1993 affidavit which confirmed that she was at the apartment on March 29, 1981. However, it definitely was before she swore the second affidavit in March 1994, in which she again confirmed that she had been at the Kellys' apartment that day.

Ms. Taber further testified during the Reference that her trial testimony was based on dreams. She claimed that, after being told of the circumstances of Mrs. Kelly's fall from the balcony, she immediately started having dreams in which images appeared of the Applicant throwing his wife over the balcony. Over time, she came to believe that those images were based on a real memory. As a result, she thought that the evidence she provided at trial was what she had witnessed. This "dream" assertion conflicts starkly with the claims she originally made to the Minister of Justice in support of Mr. Kelly's application.

From July 1984 to November 1993, Ms. Taber was under the care of a psychologist, Dr. Ernest Desjardins, who provided evidence during the Reference. Ms. Taber had testified that Dr. Desjardins had told her that her memories of witnessing the murder were false and based on a dream, but Dr. Desjardins denied this assertion in his testimony.

As well, the Court of Appeal noted that Ms. Taber had revealed to several people that she had been at the Kellys' apartment on March 29, 1981 before she revealed this information to the police in 1983. One of Ms. Taber's confidants was a counsellor named Rena McAllister. Ms. McAllister confirmed in evidence taken during the Reference that sometime before May 1982, Ms. Taber had confided in her that she had witnessed a homicide and feared for her own safety.

VI. ONTARIO COURT OF APPEAL'S RESPONSE TO THE REFERENCE - MAY 21, 1999 ²

The Court of Appeal reviewed Ms. Taber's conduct during the time period after Mrs. Kelly's death and before trial. The majority concluded that her conduct confirmed that her trial testimony was a true memory. The majority found that the fact that Ms. Taber told others that she had witnessed a murder, prior to her March 1, 1983 statement to the police and Dr. Rowsell, raised serious doubts about Ms. Taber's original recantation that her trial testimony was the result of police pressure and/or hypnosis. It appeared to the Court that, in order to rationalize these prior statements made to confidants, Ms. Taber was forced to disband the notion of police pressure or hypnosis as a basis for her trial testimony. She attempted to resile this obvious contradiction by telling the Court of Appeal that her trial description was the result of having dreams immediately after hearing of the death of Mrs. Kelly. However, the Court of Appeal noted, this did not explain the vivid details recounted by Ms. Taber of events leading up to and immediately after the alleged incident on the balcony. As well, there was no clinical diagnosis that Ms. Taber suffered from any psychiatric disorder that could conceivably give rise to her assertion that her trial testimony was based on a dream.

The majority concluded that Ms. Taber's trial testimony was the most accurate and truthful account of the events surrounding the death of Mrs. Kelly. In its final analysis of Ms. Taber's new information, the majority applied the criteria concerning the admissibility of fresh evidence on appeal as set out by McIntyre J., in R. v. Palmer (1979), 50 C.C.C. (2d) 193:

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;

(2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) the evidence must be credible in the sense that it is reasonably capable of belief, and

(4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

The majority made the following significant observations concerning Ms. Taber's new information:

[149] What is more disturbing, and is revealed only by the tapes of her conversations with Mr. Ruby obtained after her initial testimony before this court in October, 1997, is that as late as September 25, 1997, Ms. Taber still did not know what she was going to say. She appeared to be in some turmoil as to how she would deal with her allegations against Dr. Rowsell and her allegations of a hypnotically induced false memory...

...

[157] There is no more reliance on police misconduct, on subornation, or on state authorized hypnosis. The applicant's case is reduced to a raw assertion of "false belief and memory" unsupported by anything other than the self-diagnosis of the recanter....

[158] There has been no fresh factual or scientific evidence put forward on this reference which would in any way support the bona fides of Ms. Taber's last alleged recantation. ...

[159]...In any event, what becomes evident from all of the evidence is that she has had a great deal of difficulty in coming to terms with what she undoubtedly saw on Sunday, March 29, 1981 - the cold-blooded murder of her friend, Jeanette Kelly, by her former lover, Patrick Kelly.

[160] Her initial fear was for herself for two reasons. First, she recognized that she had a clear exposure as an accomplice to murder. Second, she feared the applicant, a man she had seen kill. Overlaying both fears was her conscience. She had failed to warn or help her friend, Jeanette Kelly. In time she came to terms with herself to the extent that she finally and reluctantly told the police what she had witnessed. In doing so, she was careful to protect against one of her fears by obtaining a promise of immunity in return for her co-operation.

[161] ...Her initial recantation appears to have been a compromise by a woman feeling more and more isolated and left to her own devices. The changes in her initial testimony are more consistent with attempts to appease the applicant than to right a perceived wrong. It must be remembered that Ms. Taber's initial recantation was premised on police and state misconduct, not any admission of wrongdoing on her part. She must have thought that it would be sufficient to bring about a new trial. However, it did not work. She was disabused of this hope by the applicant's lawyers, who were pressing her to revisit her memory and revise it to comply with the applicant's theory of the case. Accordingly, she decided to remake her entire testimony, relying upon some fuzzy self-diagnosis of emotional instability to exculpate her from being implicated in criminal wrongdoing...

[162] The onus of establishing Ms. Taber as credible on this reference is on the applicant. However, far from attempting this, the applicant has attempted to turn the whole process on its head. Counsel for the applicant now argues that the interests of justice demand that a new jury should assess her credibility because of the fact of her recantation alone.

[163] This is a recantation by committee. The recantation that we are asked to consider is the product of tainting at an unacceptable level, tainting by the applicant and those who seek to serve his interests. The fact that it was effective to persuade Ms. Taber to recant the evidence that she gave at trial without having to concede that it was then a lie makes a mockery of the recantation process. In our opinion, having reviewed the evidence before us and given as much benefit as we can to the tortured explanations of Ms. Taber as to why she has changed her mind about what she now says she only imagined she saw on the afternoon of the brutal slaying of Mrs. Kelly, we are more than satisfied that she told the trial court the truth about what she actually saw. Any discrepancies in her testimony at trial are discrepancies of a guilt-ridden and fearful witness. But she was then telling the court what she saw, not what she imagined.

[164] While the Minister was of the opinion when he ordered this reference that "there is no evidence of improper motive for the recantation", we are satisfied on the basis of the extensive evidence developed by the Crown that Ms. Taber's motives were grossly improper. Far from making a true recantation, she still asserts that she has a memory of seeing the applicant throw his wife over the balcony. In fact, she demonstrated this remarkable feat of memory before the court when in her examination-in-chief she recalled with vivid detail the facts to which she testified at trial. She does not say her testimony was false, only that it may well have been a memory induced by horrific dreams, a memory that she has come to distrust over time because of her own research in the area of T.V. programming, not to mention the continuous influences of the applicant and those who seek to serve his interests. We think there is much to be said for the theory of the Crown that her evidence before this court cannot be considered to be a recantation at all.

In reaching its conclusion, the majority opinion of the Court of Appeal stated as follows:

[182] Applying the relevant legal principles to the evidence before us, we conclude as follows. First, assuming, without deciding, that there are special rules relating to fresh evidence that amounts to a recantation by a material witness, they have no application to the fresh evidence of Ms. Taber because her testimony before this court is not a recantation. At no point does she state that her testimony at the preliminary hearing or the trial was false and that what she is now saying is the truth. She still has a memory of being present in the Kelly condominium and witnessing the applicant drop his wife over the balcony. She can recall with great detail, as she did before us in October 1997, just what that memory was. She now says only that certain information that has come to her attention over the years has made her unsure as to whether what she said at trial and still remembers flawlessly was a true memory of what occurred or a false one. Incredibly, she still seems to believe that the applicant is guilty of the murder of his wife despite her own expressed concern as to the weight to be attached to her eyewitness account of that very act.

[183] Second, Ms. Taber's fresh evidence, in the form of her affidavits in support of the s.690 application, or as significantly modified in her testimony before this court, does not meet the third test in Palmer; it is not credible in that it is not reasonably capable of belief. Additionally, as in Palmer, we do not believe that the testimony of Ms. Taber taken before this court and believe that she told the truth at the trial. In this regard, we are not satisfied that her most recent version of events is her own. It is apparent from this record that Ms. Taber's cerebral travels to these fresh insights into her mental state was a journey that she did not make alone. She was either pressured or at the very least felt pressured to change her trial testimony. When she was prepared to do so, she was given every assistance as to how this could be done with an appearance of credibility. She permitted herself to be manipulated into what she should say.

[184] Finally, even accepting that the issue of Ms. Taber's credibility should be reassessed by a new jury who could assess her original testimony in the light of her alleged recantation, we cannot believe that the new jury could come to a different conclusion than the original jury. Accordingly, the fresh evidence fails the fourth test in Palmer in that her present evidence, when taken with the other evidence available at trial, could not be expected to have affected the result.

[185] Restating these conclusions as responses to the Minister's Reference, the answer to the question posed by the Minister in his s.690(c) query must be in the negative: Ms. Taber's evidence would not be admissible on appeal.

A dissenting opinion respecting Ms. Taber's new information was rendered by Goudge J.A., who concluded that Ms. Taber's new information should be admitted, that he would determine the case as if it was an appeal, and that he would have ordered a new trial. While the majority ultimately concluded that Ms. Taber's trial evidence represented the truthful account of the events surrounding the death of Mrs. Kelly and did not believe her fresh evidence, Goudge J.A. reached a different conclusion in his assessment of Ms. Taber's "fresh evidence":

[312] Hence, in all the circumstances I cannot find that Ms. Taber's fresh evidence is not credible and that her trial evidence must represent the truthful account of the events surrounding the murder of Jeanette Kelly. Rather, while I stop short of being able to find her fresh evidence credible, it has sufficient plausibility that its obvious significant impeachment potential must be tested against the fourth Palmer principle. The overriding consideration of s.683(1)(d) of the Criminal Code, the interests of justice, demands as much.

Goudge J.A. referred to the recent Ontario Court of Appeal decision of R. v. Babinski (1999), 135 C.C.C. (3d) 1. In Babinski, Rosenberg J.A. concluded that the Court in Palmer was sufficiently able to satisfy itself that the fresh evidence of the recanting witness was wholly unworthy of belief and that his trial evidence was true. However, Rosenberg J.A. further concluded that where a Court of Appeal, after having reviewed the record, is unable to determine whether the fresh evidence was credible or incredible, it must go on to consider the fourth Palmer requirement because the proffered evidence might still have substantial impeachment value if made available to a "reasonable trier of fact".

With respect to the new information from scientific experts, the Court of Appeal unanimously responded that it would not be admissible on appeal. Although the new information was credible, it was available at trial. In fact, the Applicant's trial counsel considered the use of expert evidence but decided otherwise. The Court of Appeal stated that the proposed fresh evidence was the sort that the Applicant's trial counsel, acting reasonably and after taking a realistic risk-benefit analysis, chose not to call at trial. The Court of Appeal concluded that it would not be in the best interests of justice to second-guess trial counsel's decision. As well, the evidence had minimal probative value. The structural weaknesses in Mr. Krueger's evidence were self-evident and revealed to the jury through cross-examination and in closing argument. The Court of Appeal concluded that the proffered fresh expert evidence, when considered with the evidence adduced at trial, could not have affected the verdict.

VII. THE APPLICANT'S REQUEST FOR RELIEF

The Applicant seeks the following relief:

1. The granting of a new trial pursuant to paragraph 690(a) of the Criminal Code; or in the alternative,

2. A recommendation to the Governor in Council that a question be referred to the Supreme Court of Canada, pursuant to section 53 of the Supreme Court Act.

The Applicant has requested that I grant a further remedy on the basis of the information that has already been thoroughly reviewed by the Ontario Court of Appeal. That request is primarily based on the dissenting opinion of Goudge J.A. and his application of the recent Ontario Court of Appeal decision in Babinski. The Applicant also refers to the recent Nova Scotia Court of Appeal decision in R. v. Hache (1999), 136 C.C.C. (3d) 285, and the recent Ontario Court of Appeal decision in R. v. McCullough (#C12092, January 11, 2000, unreported).

I have reviewed the information provided to me, including the submissions made to the Ontario Court of Appeal by the Applicant and the Attorney General of Ontario, and the Applicant's Supplementary Case on Reference. I have reviewed the majority and dissenting opinions received from the Ontario Court of Appeal in response to the questions posed by my predecessor. I have also had the opportunity to review the submissions presented by the Applicant directly in support of a further remedy, the submissions of August 6, 1999 from the Applicant's counsel, and the supplementary submissions of November 15, 1999 and January 24, 2000.

Before addressing the specific requests for relief, I want to inform the Applicant that, in formulating my conclusions, I have independently and carefully reviewed all of the facts and information gathered during the Reference, all of the Applicant's submissions, and the advice I have received from the Department of Justice. In arriving at my conclusions, I have considered the nature of the remedy provided by section 690, my role as Minister of Justice, and the guiding principles as outlined above.

1. The granting of a new trial pursuant to paragraph 690(a) of the Criminal Code

The Applicant submits that I should grant a new trial under paragraph 690(a) of the Criminal Code on the basis that I have received conflicting opinions from the Ontario Court of Appeal concerning the admissibility of the new information provided by Ms. Taber. Since the Ontario Court of Appeal was unable to agree, the Applicant submits that a jury of his peers is the appropriate arbiter to resolve the case. The Applicant asserts that Ms. Taber's new information should be reviewed and assessed by a jury in a new trial for the following reasons:

(a) The evidence of Ms. Taber, who was the only eyewitness to the offence, was significant to the conviction.

(b) The evolution of Ms. Taber's trial evidence was convoluted.

(c) No other evidence was presented at trial as to her presence in the Kellys' apartment on March 29, 1981.

(d) Her trial evidence contained significant frailties.

As previously stated, the Court of Appeal had access to a considerable amount of material and was in a position to properly assess the credibility of Ms. Taber's fresh evidence. In fact, this issue was specifically addressed in the majority opinion:

[186] We cannot leave this subject without commenting negatively on the suggestion that whatever we think of Ms. Taber's credibility, we are not in as good a position as a new jury to weigh her evidence at trial against what she now says. We have heard Ms. Taber testify in person over three days and we have had the benefit of videotapes of her continued cross-examination and re-examination taken out of court. We have been supplied with transcripts of all of this testimony as well as transcripts of her evidence prior to and during the trial. Both the applicant and the Crown prepared and submitted extensive briefs in which they commented in detail upon the evidence and the law with respect to this issue. This was supplemented by oral argument and a view of the scene of the death of Jeanette Kelly. In short, we can think of no judicial body better suited to the task of assessing the credibility of Ms. Taber's testimony. We reject the suggestion that we should simply report back to the Minister of Justice that after all this extended effort we are not in a position to determine the narrow questions that have been referred to us...

I agree with the majority of the Court of Appeal's assessment of their ability to perform the task of assessing the credibility of Ms. Taber and to respond to the questions referred by my predecessor to the Court. I am also of the opinion that the above-noted reasons relied upon by the Applicant in support of his request for a new trial do not form a basis for granting a new trial. As the majority of the Court of Appeal noted:

[45] The review of this fresh evidence must proceed on the basis that it is not the function of this court, on a review under s.690 of the Code, to rehear the earlier appeal by the applicant to this court. Whatever its frailties, the evidence of Ms. Taber was available to the jury, which was in a position to believe or disbelieve all or any part of it. The jury's analysis is unknown and unknowable. Clearly, the jury could have rejected her evidence and still convicted the applicant. As we understand our function, it is to assess the alleged recantations and determine if the recantations meet the tests of relevance, credibility and materiality such as to warrant their reception as fresh evidence: see R.v. Palmer (1979), 50 C.C.C. (2d) 193 (S.C.C.) at 205.

The Applicant also submits that in light of the new information from scientific experts he should have a new trial. This assertion is made even though the Court of Appeal unanimously ruled against its admissibility. Having received this opinion from the Court of Appeal, the Applicant now asks me to disregard it. The Applicant has not provided any new facts or arguments that would give me a basis to disagree with the Court of Appeal's opinion that this new information is inadmissible.

It must be remembered that in this section 690 application the Applicant has already been granted the measure of a ministerial referral to the Ontario Court of Appeal. In 1996, Minister Rock was of the opinion that the new information should be referred to the Court of Appeal for its consideration. The Court of Appeal assessed all of the new information gathered by the Minister as well as additional information gathered during the Reference. It is obvious that the Court of Appeal spent a great deal of time and effort reviewing the information presented. The majority of the Court of Appeal concluded that none of the information presented would be admissible on appeal.

The Applicant is now asking me to substitute a more favourable view of the same evidence that was before the Court of Appeal. In essence, the Applicant wants me to overrule the majority opinion of the Court of Appeal. In their assessment of the credibility of the fresh evidence from Ms. Taber, neither the majority nor the minority found her evidence to be credible. Indeed the majority, after an exhaustive review and analysis of that evidence, concluded that it was not credible. That assessment is, in my view, persuasive and I am not prepared to order a new trial on the basis of the minority view of the fresh evidence.

I see no need for a new trial on the basis of the new scientific information, Ms. Taber's new information, or a combination of the two. I am not prepared to grant a new trial on that information which was so comprehensively assessed by the Ontario Court of Appeal. Accordingly, this request must be dismissed.

2. A recommendation to the Governor in Council that a question be referred to the Supreme Court of Canada, pursuant to section 53 of the Supreme Court Act

In the alternative, the Applicant submits that the matter should be referred to the Supreme Court of Canada. Pursuant to section 53 of the Supreme Court Act, I may recommend to the Governor in Council that a question be referred to the Supreme Court of Canada. The Supreme Court Act speaks in terms of "important questions of law and fact concerning any matter". The Applicant submits that there are important legal issues that arise from his Reference that require such a referral.

The Applicant submits that, had this been a normal appellate proceeding following a trial with a dissenting opinion on a question of law, there would be an automatic right of appeal to the Supreme Court of Canada by virtue of section 691(1)(a) of the Criminal Code. The Applicant therefore argues that a referral is the only way he can have what he submits are the important legal issues raised in his case heard by the Supreme Court of Canada.

The Applicant submits that the first important legal issue arising out of the Reference is the Ontario Court of Appeal's divergence in interpretation of the third Palmer requirement. With the greatest of respect, it is not at all clear that the majority and the minority disagreed on the application of the Palmer requirements. Rather, the real difference appears to lie in their assessment of the fresh evidence provided by Dawn Taber.

The majority concluded that Ms. Taber's fresh evidence was totally unworthy of belief and that her trial evidence was true. Goudge J.A. was not prepared to entirely reject her fresh evidence because it might have some impeachment value capable of affecting the verdict. Goudge J.A. referred to an interpretation of the third test in Palmer as given by the Ontario Court of Appeal in Babinski. Although Goudge J.A. could not conclude that the fresh evidence from Ms. Taber was credible, he also could not say that it was incredible. He went on to weigh the impeachment value of the fresh evidence for the purpose of determining whether it could reasonably have affected the result of the proceedings.

Although the majority opinion does not specifically refer to Babinski, it is clear that the majority applied Palmer as contemplated in Babinski. The majority view was that Ms. Taber's attempts at recantation were completely incredible and that her trial evidence was most accurate and truthful. The majority's assessment did not end there. The majority then went on to consider the recantation evidence in light of the trial evidence and, applying the fourth and final test in Palmer, determined that the recantation evidence was incapable of affecting the verdict. It is clear to me that a careful assessment of the impeachment value of Ms. Taber's recantation evidence formed part of the majority's deliberations before arriving at a final conclusion regarding the admissibility of the fresh evidence.

The Applicant also submits that I should consider the unanimous Ontario Court of Appeal decision in McCullough, a case which involved the application of Babinski. McCullough dealt with the recantation of two witnesses of their trial evidence. With respect to one witness, the Court held that the proffered fresh evidence, although incapable to being confirmed as either credible or incredible, may still have substantial impeachment value if made available to the trier of fact. With respect to the other witness, the Court was of the firm view that the fresh evidence was clearly not credible and, as such, it was inadmissible. The McCullough case does not change my opinion that the majority of the Ontario Court of Appeal properly reviewed Ms. Taber's fresh evidence.

I have carefully considered all of the information available to me concerning Dawn Taber. I am of the opinion that there is no important legal issue concerning Ms. Taber's new information that requires the further review by another court.

The Applicant raises as a second important legal issue meriting the attention of the Supreme Court of Canada, the appropriateness of the first Palmer requirement in regard to scientific evidence brought forward after trial. While I agree fresh scientific evidence should be admitted if it impacts significantly on the reliability of the conviction irrespective of trial counsel's diligence, I am impressed with the Court of Appeal's unanimous opinion that, not only was trial counsel's decision not to call similar evidence tactical and reasonable, but even if this new scientific evidence was admitted and believed, it had minimal probative value. Finally, when considered with the evidence adduced at trial, the Court found that the scientific evidence could not have affected the verdict. I am of the opinion that no important legal issue arises concerning the Court of Appeal's treatment of the new scientific information and its unanimous conclusion that such new information was inadmissible.

In the 1995 Reasons for Decision in the section 690 Criminal Code application of Sidney Vincent Morrisroe, my predecessor the Honourable Allan Rock noted that a Supreme Court Reference should be made only in exceptional circumstances. It is only appropriate when there is a matter of public interest requiring the attention of the Supreme Court of Canada in order to maintain the integrity of the judicial system.

To my knowledge, only three cases of alleged wrongful conviction have been referred to the Supreme Court of Canada. In each of these cases, widespread public concern about the integrity and validity of the judicial process that led to the convictions had arisen. In the interests of justice and in order to maintain public confidence in the justice system, Ministers of Justice of the day decided that the issues raised in those cases had to be addressed by the Supreme Court of Canada. These cases were not referred to a Court of Appeal prior to their referral to the Supreme Court of Canada.

The new information that arose after the Applicant's conviction did, in my opinion, require a review by a judicial body. Minister Rock referred the case to the appropriate judicial body for review. Therefore, concerns regarding the propriety of the Applicant's conviction have been made the subject of judicial review. A further referral of the same information already reviewed by the Court of Appeal would not be the appropriate subject matter of a Reference to the Supreme Court of Canada.

VIII. CONCLUSION

I conclude that there is no basis to order that the Applicant's case be retried or referred to another judicial body for further consideration. The three-member panel of the Ontario Court of Appeal provided very detailed analysis of the new information referred to it by my predecessor. I have thoughtfully reviewed their respective opinions and the Applicant's response to those opinions.

After a careful examination of all of the submissions raised in this application, I have concluded that there is nothing further that provides a reasonable basis to conclude that a miscarriage of justice likely occurred in the Applicant's conviction. Accordingly, the application is dismissed.

A. Anne McLellan

Footnotes

(1)  The Ontario Court of Appeal observed that one life insurance policy had been taken out by the Applicant by forging Mrs. Kelly's signature to the application. (Paragraph 10). Although Mrs. Taber testified that this matter was discussed, no such policy was taken out.

(2)  Reported at 1999, 135 C.C.C. (3d) 449.