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Appellate courts need guidance on post-trial recantations

In the next three months, Toronto criminal lawyer Catriona Verner hopes to learn whether the Supreme Court of Canada finds merit in a homicide case she says changed the law on the admissibility of post-trial recantations.

Verner, of Hicks Adams LLP, tells she filed an application for leave to appeal to the Supreme Court earlier this summer.

Her client, Michael Kassa, was convicted in 2009 of second-degree murder. R. v. Kassa was heard at the Ontario Court of Appeal last year, after Kassa’s ex-girlfriend recanted a critical part of her trial testimony after he was convicted. He sought a new trial, submitting that fresh evidence concerning the recantation should be admitted. The appeal was dismissed.

“The next step in the application process is to receive confirmation that everything was properly served and filed, with the names of the three Supreme Court justices that will review the case and decide whether to grant leave,” says Verner, who has won four of the last five homicide cases she’s argued.

Legal Aid Ontario refused to fund the Kassa application, and while Verner says she will continue to work on the case regardless of payment, she’s asked the Supreme Court to fund the work.

In a Hamilton Spectator report, Verner says Kassa’s appeal changed the law on the admissibility of post-trial recantations. Before this case, she says in the article, admissibility depended simply on whether the recantation impacted the verdict, whereas here, the recantation was deemed inadmissible - despite its impact on the verdict - because it was influenced by Kassa.

“The main argument is that generally, appellate courts have had difficulty assessing when they should consider post-trial recantations,” Verner tells “I’m trying to get to the Supreme Court of Canada saying appellate courts need guidance on this issue.”

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