Her Majesty the Queen v. Chartrand
[Indexed as: R. v. Chartrand]
62 O.R. (3d) 514
 O.J. No. 4791
Docket No. C36031
Court of Appeal for Ontario,
McMurtry C.J.O., Cronk and Armstrong JJ.A.
December 13, 2002
Criminal law — Appeal — Grounds — Misapprehension of evidence — Trial judge misapprehending evidence of eyewitness and incorrectly concluding that it showed that accused had directly or indirectly attempted to influence her evidence — Considerable weight given to this inaccurately understood evidence in trial judge’s reasons for rejecting accused’s reliance on self-defence — Court cannot conclude that verdict would necessarily have been same but for cumulative effect of this and other errors — New trial ordered.
Criminal law — Credibility — Reasonable doubt — Trial judge framing issue as who he believed: Crown or defence witnesses — Trial judge rejecting accused’s evidence and finding complainant’s evidence to be more reliable — Trial judge undertaking and completing credibility analysis prior to considering doctrine of reasonable doubt — Structure of trial judge’s reasons giving rise to concern that trial judge analyzed case solely on basis of credibility contest — Accused’s appeal from conviction allowed.
Criminal law — Trial — Cross-examination — Accused charged with assault — Accused claiming that she acted in self-defence — Complainant subsequently charged with unrelated assaults on third parties — Charges pending at time of accused’s trial — Trial judge permitting defence counsel to cross-examine complainant on fact of outstanding charges but not permitting exploration of details of incidents giving rise to charges — Trial judge erring in precluding cross-examination on details of pending assault charges — Line of questioning relevant to defence of self-defence and to complainant’s credibility as defence alleging that complainant’s evidence might be influenced by desire to seek favour of Crown in relation to her outstanding charges — Accused’s appeal from conviction allowed.
The accused was convicted of assault. She contended at trial that she acted in self-defence during her altercation with the complainant. After the incident but before trial, the complainant was charged with an unrelated assault on third parties. Those charges were pending at the time of the trial. Defence counsel sought to cross-examine the complainant about those charges for the purpose of establishing that she had a disposition for violence. The trial judge permitted cross- examination only on the fact of the outstanding charges, and prohibited defence counsel from exploring in cross-examination the details of the incidents giving rise to the pending assault charges on the basis that they were irrelevant and collateral to the issues in the trial. The accused was convicted. She appealed.
Held, the appeal should be allowed.
The trial judge erred by precluding cross-examination of the complainant on the details of her pending assault charges. That line of questioning went to the heart of the accused’s claim of self-defence and her assertion that the complainant was the initial aggressor, as well as to the complainant’s credibility. The fact that the assaultive behaviour that gave rise to the outstanding charges against the [page515] complainant post- dated the alleged offences in this case did not detract from its relevance or probative value. Moreover, cross-examination of the complainant concerning the outstanding charges was permissible for the purpose of showing a possible motivation by the complainant to seek favour with the prosecution.
The trial judge misapprehended the evidence of the complainant’s daughter, who was present during the altercation. That misapprehension figured prominently in his reasoning on the culpability of the accused. The error was serious because it contributed to the conclusion that the accused had concocted her claim of self-defence and her assertion that the complainant was the instigator of the violent altercation.
The trial judge rejected the accused’s evidence and found the complainant’s evidence to be more reliable. He did not refer in his reasons to the doctrine of reasonable doubt until he had completed his assessment of the credibility of the witnesses.
He stated that, by rejecting the accused’s version of events, he also rejected her contention that what she did to the complainant was on consent or in self-defence. Thus, the trial judge’s rejection of the accused’s defence was based on his assessment of a credibility contest between the accused and the complainant. He undertook and completed his credibility analysis prior to any consideration of the doctrine of reasonable doubt, or any reference to the Crown’s burden of demonstrating the guilt of the accused beyond a reasonable doubt. The structure of the trial judge’s reasons gave rise to a real concern that the trial judge, in error, analyzed the case solely on the basis of a credibility contest and that he did not give effect to the correct burden of proof.
When the three errors committed by the trial judge were considered cumulatively, it could not be said that the result at trial would necessarily have been the same. This was not an appropriate case for the application of the proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.
Cases referred to
R. v. Gonzague (1983), 4 C.C.C. (3d) 505, 34 C.R. (3d) 169 (Ont. C.A.); R. v. M.J. (2002), 157 O.A.C. 177 (C.A.); R. v. Riley (1992), 11 O.R. (3d) 151 (C.A.) [Leave to appeal to S.C.C. refused  2 S.C.R. x]; R. v. Scopelliti (1981), 34 O.R. (2d) 524, 63 C.C.C. (2d) 481 (C.A.); R. v. Shirley (J.E.) (2002), 155 O.A.C. 210; R. v. W. (D.),  1 S.C.R. 742, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302; Titus v. R.,  1 S.C.R. 259, 144 D.L.R. (3d) 577, 46 N.R. 477, 2 C.C.C. (3d) 321, 33 C.R. (3d) 17
Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii)
APPEAL from a conviction for assault.
Grace Choi, for respondent. Michael W. Lacy, for appellant.
The judgment of the court was delivered by
 CRONK J.A.: — The appellant was convicted of two counts of assault. She received sentences of six months’ imprisonment on the first assault charge, one month’s imprisonment consecutive [page516] on the second assault charge, and one year’s probation. She was acquitted of the further charge of breaking and entering. She appeals her convictions and sentences.
 The assault charges arise from an altercation between the appellant and Sharon Deering, the former wife of the appellant’s common-law husband, Paul Deering. Following an argument between the appellant and Mrs. Deering on the telephone, the appellant drove to Mrs. Deering’s home. On her arrival, the two women became involved in a physical fight. The altercation was witnessed by Mrs. Deering’s neighbour, John Wright, who attempted unsuccessfully to intervene in the dispute, and by Mrs. Deering’s two daughters, including Tia Deering, an 11-year-old. Mrs. Deering sustained personal injuries during the confrontation. The appellant was charged with assaulting both Mrs. Deering and Mr. Wright.
 Although the appellant makes several arguments in support of her convictions appeal, in my view, it is only necessary for the disposition of these appeals to address her submissions that the trial judge erred: (i) by restricting defence counsel from cross-examining Mrs. Deering at trial concerning two outstanding charges of assault against her arising from incidents with third parties which post-dated the altercation with the appellant; (ii) by misapprehending the evidence at trial of Tia Deering; and (iii) in his approach to resolving credibility and applying the doctrine of reasonable doubt. For the reasons that follow, I am respectfully of the view that a new trial is required. Accordingly, I would allow the convictions appeal, set aside the convictions and direct a new trial. In view of that disposition, it is unnecessary to consider at length the evidence at trial, or the appellant’s sentences appeal.
(1) The Restriction on Cross-Examination
 The incident between the appellant, Mrs. Deering and Mr. Wright occurred on October 27, 1999. Several months later, Mrs. Deering was charged with two counts of assault against third parties arising from a dispute on July 26, 2000 with certain of her neighbours. Those charges were pending on the date of this trial.
 The appellant contended at trial that she acted in self- defence during the altercation with Mrs. Deering. She asserted that when she arrived at Mrs. Deering’s home, intent upon speaking with her concerning their earlier telephone argument, Mrs. Deering instigated the confrontation by attacking the appellant with a baseball bat, causing injuries to the appellant’s right arm and her nose. She claimed that she defended herself and [page517] that Mrs. Deering’s injuries occurred during the resulting melee. She also maintained that she did not intend to hit Mr. Wright and that he was accidentally struck when he attempted to separate the appellant and Mrs. Deering.
 Counsel for the appellant at trial (not counsel on this appeal) sought to cross-examine Mrs. Deering on her pending unrelated assault charges for the purpose of establishing that Mrs. Deering had a disposition for violence which was relevant to the appellant’s claim that Mrs. Deering had been the aggressor during the incident with the appellant, and to show that Mrs. Deering was capable of assaulting the appellant with a baseball bat in the manner alleged by the appellant. On this appeal, the appellant also argues that the proposed cross- examination was relevant to the credibility of Mrs. Deering generally and, further, to the issue of whether Mrs. Deering’s evidence was affected by a desire to seek favour with the Crown in connection with the pending assault charges against her.
 After hearing submissions from counsel, the trial judge ruled that he would permit cross-examination of Mrs. Deering only on the fact of the outstanding assault charges. He prohibited defence counsel from exploring in cross-examination the details of the incidents giving rise to the other pending assault charges on the basis that they were irrelevant and collateral to the issues in this trial. With respect, I am unable to agree.
 At trial, Crown counsel objected to the proposed cross- examination in reliance on R. v. Riley (1992), 11 O.R. (3d) 151 (C.A.), leave to appeal to S.C.C. refused  2 S.C.R. x. In my view, however, the facts of this case are materially different from those in Riley, and the nature and purpose of the proposed cross-examination here rested on an entirely different footing.
 In Riley, the proposed cross-examination of the complainant in a sexual assault case concerned whether the complainant had made a false complaint of sexual assault against a person other than the accused that resulted in an acquittal. This court held that the only legal basis that would justify such a cross-examination would be in order to lay the foundation for a pattern of fabrication by the complainant of earlier allegations of sexual assault against persons other than the accused before the court. In the absence of a demonstration that such allegations were false, or that the complainant had recanted those earlier allegations, the proposed cross-examination was improper as it concerned a collateral matter that was essentially an attack on the general character of the complainant.
 In this case, defence counsel sought to cross-examine Mrs. Deering on whether she had been criminally charged in relation [page518] to assaultive acts committed against other persons and concerning the details of the incidents giving rise to those charges. The proposed cross-examination was said to be relevant to the appellant’s assertions of self-defence, that Mrs. Deering had been the aggressor and that she was capable of assaulting the appellant in the manner alleged and, further, to the question of whether her evidence might have been influenced by a desire to seek favour with the Crown in relation to the pending charges against her. As indicated by Martin J.A. in R. v. Gonzague (1983), 4 C.C.C. (3d) 505, 34 C.R. (3d) 169 (Ont. C.A.) at pp. 510-11 C.C.C.:
Clearly, the fact that a person is charged with an offence cannot degrade his character or impair his credibility, but an ordinary witness, unlike an accused, may be cross-examined with respect to misconduct on unrelated matters which has not resulted in a conviction . . . Consequently, counsel was entitled to cross-examine the witness . . . on the facts underlying the 15 charges of fraud in order to impeach his credibility.
See also R. v. Scopelliti (1981), 34 O.R. (2d) 524, 63 C.C.C. (2d) 481 (C.A.) and R. v. Shirley (J.E.) (2002), 155 O.A.C. 210. In addition, as referenced by Martin J.A. in Gonzague, the Supreme Court of Canada recognized in Titus v. R.,  1 S.C.R. 259, 144 D.L.R. (3d) 577 that cross-examination of a Crown witness concerning an outstanding charge against the witness is permissible for the purpose of showing a possible motivation by the witness to seek favour with the prosecution.
 Having regard to the nature of the defence raised here, I conclude that the trial judge erred by precluding the appellant from cross-examining Mrs. Deering on the details of her pending assault charges. That line of questioning went to the heart of the appellant’s claim of self-defence and her assertion that Mrs. Deering was the initial aggressor, as well as to Mrs. Deering’s credibility. The fact that the assaultive behaviour that gave rise to the outstanding charges against Mrs. Deering post-dated the alleged offences in this case did not detract from its relevance or probative value. Moreover, as credibility was a central issue at this trial, it cannot be concluded that the restriction on the cross-examination resulted in no prejudice to the appellant.
(2) Alleged Misapprehension of the Evidence of Tia Deering
 Tia Deering was present during the altercation between her mother, Mr. Wright and the appellant. She was called at trial as a witness for the Crown. During her examination-in- chief, she testified that she had talked about the case, and about what had happened during the incident, with her father. She said that her [page519] father asked her why she would be subpoenaed to give evidence, and that “he would tell me . . . that my mom hit [the appellant] with the bat and he showed me some pictures of [the appellant’s] arm and I saw [the appellant’s] arm”. She testified that at first she believed her father when he told her that her mother had hit the appellant with a baseball bat, but thereafter, she “didn’t know”.
 During Tia Deering’s examination-in-chief, Crown counsel was granted leave to cross-examine her on a statement which she made to the police after witnessing the altercation. That statement contained information that the appellant was shouting and swearing at Mrs. Deering. During her cross-examination by defence counsel, Tia Deering said that her mother had been swearing at the appellant, but that the appellant was not swearing. She further agreed, on questioning by defence counsel, that people “sometimes . . . cover” for the people they love. Defence counsel did not cross-examine Tia Deering on whether her father had attempted to influence her testimony. On re-examination, Crown counsel questioned Tia Deering on whether the appellant had been swearing at Mrs. Deering. In that context, Crown counsel elicited evidence from Tia Deering that her mother never hit the appellant with a baseball bat, that her father had wanted Tia Deering to say that her mother had hit the appellant with a baseball bat, that it was her mother “who was doing bad things” and not the appellant, that the appellant was shouting, and that the appellant beat-up her mother and her mother “had some serious damage”.
 The trial judge referred to the evidence of Tia Deering in his reasons. He stated: “It was also apparent that Paul Deering and/or the [appellant] had talked to her previously about what she saw that night, in particular after she told her dad that she had a subpoena. He told her that, ‘My mom hit [the appellant] with the bat’.” The trial judge concluded that Tia Deering’s evidence “corroborated” her mother’s version of events and that her evidence, together with that of two other witnesses, added “significant weight” to Mrs. Deering’s version of events. He concluded, on that basis, that Mrs. Deering’s evidence was more reliable than that of the appellant, and he rejected the appellant’s evidence.
 In addition, in rejecting the appellant’s contention that she acted in self-defence, the trial judge indicated: “This was not a fight between equals, not on consent, but was an assault where, as Tia described, her mom was getting beaten up.” The trial judge then found the appellant guilty of assaulting Mrs. Deering and Mr. Wright, and acquitted the appellant on a charge of breaking and entering with the intent to commit assault. He thereafter stated: [page520]
The [appellant] was on a mission, which mission she carried out with so much anger and intensity that she said that, “she was going to kill her.” She was not going to let her up until Sharon Deering had indicated that she had had enough, or until threatened with the pepper spray. The [appellant] also directly or indirectly through Paul Deering tried to plant his seed with Tia Deering about the case of the baseball bat by the mother which was supposedly the catalyst.
The trial judge concluded his reasons by quoting at length from the re-examination of Tia Deering, as mentioned above.
 Several difficulties arise from the re-examination of Tia Deering and the trial judge’s reliance on her testimony given during her re-examination. First, the trial judge in part relied on that evidence to support his conclusion that the appellant had attempted, directly or indirectly, to influence Tia Deering’s testimony on the key issue of whether Mrs. Deering had attacked the appellant with a baseball bat. That issue was at the core of the appellant’s claim of self-defence. In fact, Tia Deering did not implicate the appellant in any effort to influence her testimony. Her evidence during her examination-in-chief and on re-examination implicated only her father in that effort. In my view, it could not reasonably be inferred on the basis only of Tia Deering’s evidence that the appellant had attempted to manipulate her testimony, or that the appellant had orchestrated efforts by her common-law husband to do so. The conclusion that she did so was a misapprehension of her evidence.
 In addition, the questions asked of Tia Deering during re-examination on the issue of her father’s attempts to influence her evidence did not arise from the cross-examination of the witness. The issue first arose during the witness’ examination-in-chief. Although the impugned questioning on re- examination occurred in the course of questioning on another contested issue, namely, on the issue of whether the appellant had been swearing at Mrs. Deering, the impugned questions were unnecessary to the exploration of the latter issue and were not grounded in the cross-examination of the witness. Moreover, the questions during re-examination concerning the attempts by Tia Deering’s father to influence her testimony were leading questions on an important issue.
 The trial judge emphasized and relied in his reasons upon Tia Deering’s evidence during re-examination. He quoted from it extensively. Indeed, when his reasons are read as a whole, it is apparent that the challenged evidence, and the trial judge’s misapprehension of it, figured prominently in his reasoning on the culpability of the appellant. This error was serious because it contributed to the conclusion that the appellant had concocted her [page521] claim of self-defence and her assertion that Mrs. Deering was the instigator of the violent altercation at issue.
(3) The Trial Judge’s Approach to Resolving Credibility and Applying the Doctrine of Reasonable Doubt
 The appellant argues that the trial judge erred in law in the manner in which he approached the tasks of resolving credibility issues and applying the doctrine of reasonable doubt. I agree.
 After briefly outlining the theory of the defence, the trial judge embarked on an assessment of the credibility of the witnesses. He commenced by indicating: “There are four issues, the first one being credibility which is the main issue — the Crown’s version versus the [appellant’s] version.” He thereafter described the issue of credibility as being “first and foremost . . . because if I prefer the [appellant’s] version of events over that of [Mrs. Deering] . . . self- defence would be a defence available to the [appellant]”. He commenced his analysis by asking “Who do I believe? [sic]” and then assessed the evidence of Mrs. Deering and the appellant. He observed that “if there was any doubt as to who provided the more credible version of events, that doubt was allayed by the evidence of the other witnesses.” The trial judge concluded his assessment of credibility by stating that the evidence of three witnesses, including that of Tia Deering, “add significant weight to [Mrs. Deering’s] version of events. Accordingly, I find that [Mrs. Deering’s] evidence is more reliable and I reject the evidence of the [appellant].”
 The trial judge did not refer in his reasons to the doctrine of reasonable doubt until he had completed his credibility assessment. After referring to the requirements set out in R. v. W. (D.),  1 S.C.R. 742, 63 C.C.C. (3d) 397, he stated concerning the appellant’s evidence: “By rejecting her version of events, I also reject her contention that what she did to the complainant was on consent or in self-defence.”
 Thus, the trial judge’s rejection of the appellant’s defence was based on his assessment of a credibility contest between the appellant and Mrs. Deering. He undertook and completed his credibility analysis prior to any consideration in his reasons of the doctrine of reasonable doubt, or any reference to the Crown’s burden of demonstrating the guilt of the appellant beyond a reasonable doubt. The structure of the trial judge’s reasons as a whole gives rise to a real concern that the trial judge, in error, analyzed the case solely on the basis of a credibility contest. That conclusion is reinforced by the fact that the trial judge’s attempt [page522] to apply the test in R. v. W. (D.) to the facts of the case occurred after he had explicitly concluded that Mrs. Deering’s evidence was more reliable than that of the appellant. I agree with the submission of the appellant’s counsel that, after the trial judge reached that conclusion, there was little, if any, hope that the appellant’s evidence could be seen as raising a reasonable doubt. In those circumstances, with respect, I am not satisfied that the trial judge gave effect to the correct burden of proof: see R. v. M.J. (2002), 157 O.A.C. 177 (C.A.).
(4) The Availability of the Proviso Under Section 686(1)(b)
(iii) of the Criminal Code
 The Crown argues, in connection with all of the appellant’s submissions concerning the convictions appeal, that the proviso contained in s. 686(1)(b)(iii) should be applied because no substantial wrong occurred. I disagree. When the three errors by the trial judge outlined above are considered cumulatively, I am unable to conclude that, if the errors had not been committed, the result at trial would necessarily have been the same. The errors in this case were not harmless or of a minor nature. In view of those errors, the appellant’s convictions cannot stand.
 As a result of my conclusion that the convictions appeal must succeed, it is unnecessary to consider the appellant’s appeal from her sentences. For the reasons set out above, I would allow the convictions appeal, set aside the convictions and the sentences imposed and direct a new trial.