R v Moise (KK), 2016 MBCA 61

Citation: R v Moise (KK), 2016 MBCA 61 Date: 20160603 Docket: AR15-30-08367 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN: HER MAJESTY THE QUEEN ) M. A. Zurbuchen ) for the Appellant Respondent ) ) R. N. Malaviya- and - ) for the Respondent ) KELLY KRISTOPHER MOISE ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) June 3, 2016 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that coulddisclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code). MAINELLA JA (for the Court): [1] The accused was convicted of several domestic violence and sexual offences involving his ex-girlfriend. He moves toadmit fresh evidence on his conviction appeal in the form of a printout of a social media message allegedly made by the complainant tohim. He first learned about the message on the same day, but after, he was sentenced.

A copy of it was immediately emailed to hiscounsel (not the same counsel as on appeal). [2] In the message, the accused says that the complainant admits to fabricating her evidence at the trial, which wasbelieved by the trial judge and was central to her verdict. The parties agree that our decision on the fresh evidence motion isdeterminative of the conviction appeal. [3] Neither the message, nor its existence, was disclosed to the Crown for ten months in favour of investigation of thepossible recantation by a private investigator.

Once aware, the Crown was diligent but the delay prevented any verification of themessage, or its source, from Facebook (which apparently destroys all data after three months), forensic analysis of the computer onwhich the message was first observed or from the complainant who did not wish to relive the trauma of her prior relationship. [4] Counsel for the accused conceded that the record on the fresh evidence motion is “inconclusive” one way or the otheras to the authenticity of the message.

Nor do we think that the content of the message is unique enough to give it a circumstantialguarantee of trustworthiness. [5] In these circumstances, we are not satisfied that the proposed fresh evidence is sufficiently credible to meet one of therequired thresholds from Palmer for admissibility: that it is reasonably capable of belief.

Nor have we otherwise been persuaded that itis in the interests of justice to admit the evidence (see Palmer et al v The Queen, (SCC), [1980] 1 SCR 759 at 775; and Rv Henderson (WE), 2012 MBCA 93 at para 45, 284 ManR (2d) 164). [6] Accordingly, the motion for fresh evidence is denied and the appeal is dismissed. JA JA

JA