Henderson, R. v. (1999), 44 O.R. (3d) 646 (C.A.)

  • Document:
  • Date: 2018

Regina v. Henderson*

[Indexed as: R. v. Henderson]

44 O.R. (3d) 628

[1999] O.J. No. 1216

Docket No. C22502

Court of Appeal for Ontario

McMurtry C.J.O., Finlayson, Osborne, Labrosse and Charron JJ.

April 13, 1999

 

*Vous trouverez traduction franaise de la dcision ci-dessus 44 O.R. (3d) 646.

 

Criminal law — Trial — Conduct of Crown — Crown counsel conducting unfair and prejudicial cross-examination of accused — Accused improperly cross-examined about whether complainant’s actions consistent with having been assaulted and about impact of allegations on accused’s reputation — Crown counsel asking accused why complainant not cross-examined about some areas in her evidence — Trial judge not intervening when asked by defence counsel to do so and not saying anything in his charge to jury to erase prejudicial effect of Crown counsel’s improper questions and remarks — Miscarriage of justice resulted — Appeal from conviction allowed.

Criminal law — Trial — Jury — After deliberating for nine hours jury asking trial judge if it could rehear complainant’s evidence — Trial judge discouraging them from doing so by telling them they would have to be sequestered overnight and that process would be time-consuming and inconvenient — Jury not rehearing evidence — Case turning on credibility of complainant and accused — Trial judge’s failure to assist jury constituting fatal error — Appeal from conviction allowed. Criminal law — Evidence — Prior consistent statements — Accused charged with sexual assault — Evidence admitted at trial that complainant and friend spray-painted words “You Rapest” [sic] on accused’s trailer — Words constituting prior consistent statement but admitted as part of narrative — Trial judge erring in not warning jury that narrative evidence could not be used as confirmation of truth of complainant’s allegation — Trial judge erring in inviting jury to find that words could be used to support complainant’s version of events — Errors highly prejudicial to accused — Appeal from conviction allowed.

The accused was charged with sexual assault. Several months after the alleged incident, but before the alleged incident was reported to the police, the complainant and a friend decided to spray-paint the words “You Rapest” [sic] on the side of the accused’s trailer. The accused called the police. The complainant denied any involvement in the mischief and alleged that she had been sexually assaulted by the accused, who was then charged. The accused was convicted. He appealed, raising the following issues: the improper and unfair cross-examination of the accused by Crown counsel; the use that could be made of the spray-painted words on the accused’s trailer; and the trial judge’s answer to the jury’s request to rehear the complainant’s testimony.

Held, the appeal should be allowed.

Certain questions asked by Crown counsel effectively forced the accused to comment on the complainant’s credibility. The questioning required the accused to provide an alternative explanation for the complainant’s behaviour that was not premised on his guilt. Such an explanation would have required the accused to either comment upon the complainant’s credibility or to give an opinion that he was clearly not qualified to give, explaining why her conduct was inconsistent with someone who had been sexually assaulted. Questions of this nature are improper and unfair.

Crown counsel also asked the accused questions about his reputation in the community and the “public opinion campaign” which had been waged against him. These references were all unfair and prejudicial. The accused had not put his character in issue and Crown counsel’s insinuations that his reputation in the community had been adversely affected were irrelevant and clearly improper.

In cross-examining the accused, Crown counsel sought an explanation from the accused for defence counsel’s alleged violation of the rule in Browne v. Dunn (which stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness box). Defence counsel did not in fact violate the rule in Browne v. Dunn. It was clear from defence counsel’s extensive cross-examination of the complainant that the accused was alleging an account of events which contradicted the complainant’s. The defence was not required to put the Crown on notice of every detail that the defence did not accept. Crown counsel’s questions implying that the accused had somehow acted improperly in his defence were unfair. Furthermore, Crown counsel’s suggestions that the accused was responsible for the tactical decisions of his trial counsel     to not cross-examine the Crown witnesses were unfair and prejudicial.

When the accused was asked to enter his plea, he pleaded “innocent”. His counsel immediately corrected this to “not guilty”. During cross-examination, after the accused conceded that he had entered pleas in court on previous occasions, Crown counsel questioned him about his reasons for pleading “innocent” and accused him of “showmanship”. It was more

likely that the irregular plea was the result of an honest mistake. In any event, this portion of Crown counsel’s cross- examination served no relevant purpose but to embarrass the accused in front of the jury. As such, the questions were unfair and improper.

Crown counsel’s conduct during cross-examination, viewed in its totality and with regard to the obligation on Crown counsel to act in a scrupulously fair manner, was improper and unfair. The cumulative effect of the improprieties in the cross- examination of the accused resulted in serious prejudice.

It is a rare case where the prejudice that could otherwise flow from an improper cross-examination cannot be effectively checked by the trial judge. However, in this case the trial judge never intervened, even when requested to do so by defence counsel. Nor did he say anything in his charge to erase the prejudicial effect of Crown counsel’s improper questions and remarks. This failure of the trial judge to comment would have given the jury the misleading impression that the cross- examination was fair and proper. The improper cross- examination compounded by the failure of the trial judge to intervene clearly prejudiced the accused in his defence and resulted in a miscarriage of justice.

The spray-painted words “You Rapest” [sic] were prima facie inadmissible as evidence of a prior consistent statement. Prior consistent statements may be admitted as part of the narrative, as the words were apparently admitted at trial as part of the narrative necessary to explain the circumstances in which the police were contacted and the charges laid. The trial judge erred in failing to give a limiting instruction that the narrative evidence could not be used as confirmation of the truth of the complainant’s allegation. He further erred in inviting the jury to find that the spray-painted words could be used to support the complainant’s version of events. In a case where credibility was of paramount importance, the absence of a limiting instruction together with the instruction inviting the jury to find that the spray-painted words supported the complainant’s story were highly prejudicial to the accused. The two errors combined amounted to a reversible error.

After it had been deliberating for nine hours, the jury asked to rehear the complainant’s evidence. The trial judge pointed out that the transcript was very lengthy and told the jury that, “You’d be sequestered overnight and have to stay here hearing all of those tapes and then go back to your deciding”. He stated that it was a very time-consuming and inconvenient proposition. He asked the jury to retire and consider what he had said. An hour and a half later, without rehearing any of the complainant’s evidence, they returned with a verdict of “guilty”. The trial judge’s words may have led the jurors to believe that they would have to remain in the court house overnight to hear the tapes. His words may have discouraged the jury from rehearing and resolving whatever aspect of the complainant’s evidence it found troubling. The trial judge should have ensured that the jury’s concerns were met and that it received the assistance it required. In a case which turned on the respective credibility of the complainan t and the accused, the trial judge’s error was fatal and the conviction could not stand.

The conviction was the result of a second trial, the first trial having resulted in a mistrial. The accused had already served two and a half years of his sentence before being released on bail pending appeal. A third trial was now necessitated in part due to Crown counsel’s conduct. It would offend the standard of decency to require the accused to proceed with a third trial. A stay of proceedings was the appropriate disposition.

Cases referred to

Brouillard v. R., [1985] 1 S.C.R. 39, 16 D.L.R. (3d) 447, 57 N.R. 168, 17 C.C.C. (3d) 193, 44 C.R. (3d) 124; Browne v. Dunn (1893), 6 R. 67 (H.L.); Jones v. National Coal Board, [1957] 2 All E.R. 155, [1957] 2 Q.B. 55, [1957] 2 W.L.R. 760, 101 Sol. Jo. 319 (C.A.); R. v. Bain, [1992] 1 S.C.R. 91, 87 D.L.R. (4th) 449, 133 N.R. 1, 7 C.R.R. (2d) 193, 69 C.C.C. (3d) 481, 10 C.R. (4th) 257; R. v. Boucher, [1955] S.C.R. 16, 110 C.C.C. 263, 20 C.R. 1; R. v. Burlingham, [1995] 2 S.C.R. 206, 124 D.L.R. (4th) 7, 181 N.R. 1, 28 C.R.R. (2d) 244, 97 C.C.C. (3d) 385, 38 C.R. (4th) 265; R. v. Codina (1995), 95 C.C.C. (3d) 311 (Ont. C.A.) [leave to appeal refused (1995), 196 N.R. 76n (S.C.C.)]; R. v. Daly (1992), 57 O.A.C. 70; R. v. F. (J.E.) (1993), 16 O.R. (3d) 1, 85 C.C.C. (3d) 457, 26 C.R. (4th) 220 (C.A.) (sub nom. R. v. Fair); R. v. Garofoli, [1990] 2 S.C.R. 1421, 43 O.A.C. 1, 116 N.R. 241, 50 C.R.R.    206, 60 C.C.C. (3d) 161, 80 C.R. (3d) 317, revg (1988), 27 O.A.C. 1, 43 C.R.R. 252, 41 C.C.C. (3d) 97, 64 C.R. (3d) 193 (C.A.); R. v. Hill (1986), 17 O.A.C. 309, 32 C.C.C. (3d) 314; R. v. Jones (1988), 29 O.A.C. 219, 44 C.C.C. (3d) 248, 66 C.R. (3d) 54; R. v. Kulak (1979), 46 C.C.C. (2d) 30, 7 C.R. (3d) 304 (Ont. C.A.); R. v. Logiacco (1984), 2 O.A.C. 177, 11 C.C.C. (3d) 374 (C.A.); R. v. Munroe, [1995] 4 S.C.R. 53, 189 N.R. 87, 102 C.C.C. (3d) 383, 43 C.R. (4th) 366, affg (1995), 96 C.C.C. (3d) 431, 38 C.R. (4th) 68 (Ont. C.A.); R. v. Nugent (1995), 24 O.R. (3d) 295, 100 C.C.C. (3d) 89 (C.A.); R. v. Pan (1999), 44 O.R. (3d) 415 (C.A.); R. v. Peavoy (1997), 34 O.R. (3d) 620, 117 C.C.C. (3d) 226, 9 C.R. (5th) 83 (C.A.); R. v. R. (A.J.) (1994), 20 O.R. (3d) 405, 94 C.C.C. (3d) 168 (C.A.); R. v. Romeo, [1991] 1 S.C.R. 86, 110 N.B.R. (2d) 57, 119 N.R. 309, 276 A.P.R. 57, 62 C.C.C. (3d) 1, 2 C.R. (4th) 307; R. v. S. (W.D.), [1994] 3 S.C.R. 521, 119 D.L.R. (4th) 464, 171 N.R. 360, 93 C.C.C. (3d) 1, 34 C.R. (4th) 1; R. v. Stinchcombe, [1991] 3 S.C.R. 326, 83 Alta. L.R. (2d) 193, 130 N.R. 277, [1992] 1 W.W.R. 97, 18 C.R.R. (2d) 210, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277; R. v. Swietlinski, [1994] 3 S.C.R. 481, 119 D.L.R. (4th) 309, 172 N.R. 321, 24 C.R.R. (2d) 71, 92 C.C.C. (3d) 449, 33 C.R. (4th) 295 (sub nom. Swietlinski v. Ontario (Attorney General)); R. v. Vandenberghe (1995), 96 C.C.C. (3d) 371 (Ont. C.A.); R. v. Verney (1993), 87 C.C.C. (3d) 363 (Ont. C.A.); R. v. Yakeleya (1985), 9 O.A.C. 284, 14 C.R.R. 381, 20 C.C.C. (3d) 193, 46 C.R. (3d) 282; R. v. Young (1984), 46 O.R. (2d) 520, 3 O.A.C. 254, 10 C.R.R. 307, 13 C.C.C. (3d) 1, 40 C.R. (3d) 289 (C.A.)

APPEAL from a conviction for sexual assault.

 

Melvyn Green and P. Andras Schreck, for appellant.

David P. Finley, Renee M. Pomerance and Catherine A. Cooper, for the Crown, respondent.

 

The judgment of the court was delivered by

 

LABROSSE J.A.: — The appellant was convicted of sexual assault by a court composed of Flinn J. and a jury. He was sentenced to three years’ imprisonment. He appeals both his conviction and his sentence.

The appellant raises four substantive issues with respect to this appeal:

1.  the improper and unfair cross-examination of the appellant;

2.  the use that could be made of the spray-painted words on the appellant’s trailer;

3.  the failure of the trial judge to put the defence position to the jury; and

4.  the trial judge’s answer to the jury’s request to rehear the complainant’s testimony.

 

The appellant also seeks to tender fresh evidence of matters relating to the jury’s deliberations. It is common ground between the parties that, according to the existing common law and statutory principles respecting the secrecy of jury deliberations (“the jury secrecy rules”), this evidence cannot be admitted. The appellant attacks the constitutionality of these principles.

I see no merit in issue number 3. This was not a complicated case and there can be no doubt that the jury would have understood the position of the defence. The trial judge reviewed the positions of the Crown and the defence with respect to the specific issues and reviewed the evidence in support of these positions. None of the alleged inadequacies complained of by the appellant would have affected the verdict. However, issues 1, 2 and 4 all have merit and each ground on its own would result in a new trial. As the conviction must be set aside, the constitutionality of the jury secrecy rules, which was argued together with the appeal in R. v. Pan (released with this judgment [reported 44 O.R. (3d) 415 ante]), need not be addressed for reasons which will be stated in the disposition of this appeal.

 

THE FACTS

 

The appellant and the complainant met for the first time at a party on the evening of May 7, 1993. They socialized with each other and other persons present at the party. In the early hours of May 8, the complainant drove the appellant to his residence in a trailer park.

(i)  The Complainant’s Evidence

According to the complainant, the appellant asked her to drive him home because he was too intoxicated to drive his car. She agreed. Once they arrived at his trailer, the appellant invited the complainant inside for a drink. When she declined, he took her car keys out of the ignition of her car and went into the trailer. She entered the trailer to retrieve her keys. He tried to hug her and kiss her and she resisted him. Eventually, he forced himself upon her and sexually assaulted her, including sexual intercourse. During the assault, he was angry and was yelling and swearing at her.

As the complainant left the trailer, the appellant asked her for a ride back to the party so that he could retrieve his car. She agreed to drive him because she did not want him to get angry and yell at her again. When they arrived at the party, she went inside to see her best friend N.L. The complainant was crying and shaking and walked directly into a bedroom because she did not want the others to see her. She was sore from the struggle with the appellant and her inner thighs were bruised.

The complainant did not seek medical attention and did not report the incident to the police.

(ii)  The Appellant’s Evidence

According to the appellant, he and the complainant agreed to leave the party together. They arranged that he would tell the others that he was too drunk to drive and she would give him a ride to his trailer. When they arrived at his trailer, they listened to music, had a drink and talked. Eventually, they had consensual sexual intercourse.

When the complainant left, the appellant asked her for a ride back to the party in order to retrieve his car and she agreed. After they arrived, the complainant went inside to see N.L. He waited for the complainant to come back out because he wanted to get her phone number. He then decided to go inside and N.L. said to him, “you know what you did” and tried to hit him with a beer bottle. He did not know why Ms. L. had been hostile towards him.

It was the appellant’s position that the complainant had fabricated the sexual assault complaint so that her boyfriend would not discover that she had been unfaithful.

(iii)  Other Evidence

There was evidence from persons present at the party with respect to comments allegedly made by the appellant, which was capable of supporting the complainant’s version of events.

(iv)  The Mischief

Approximately three months after the incident, the complainant and N.L. decided to spray-paint the appellant’s trailer. The words “You Rapest” [sic] were spray-painted on the side of the trailer. Upon discovering the mischief, the appellant contacted the police and their investigation led them to the complainant and Ms. L. At that time, the complainant denied any involvement in the mischief and alleged that she had been sexually assaulted by the appellant. Ms. L., who had done the actual spray-painting, eventually pleaded guilty to a charge of mischief. The complainant was not charged as a result of this incident.

Issue 1: The Improper and Unfair Cross-Examination of the Appellant

Counsel for the appellant alleges that Crown counsel’s cross- examination of the appellant was improper and unfair. He points to four incidents in support of this submission. I have reviewed the record of the cross-examination and I am satisfied that the Crown’s conduct seriously prejudiced the appellant in his defence. Moreover, the trial judge did nothing at any time to alleviate the potential prejudice resulting from the cross- examination.

(i)Questions Regarding the Complainant’s Credibility

The first incident involved questions by Crown counsel that effectively forced the appellant to comment on the complainant’s credibility. At pp. 524-25 of the transcript the following exchange took place between the Crown counsel, defence counsel and the appellant:

Q. Sir, will you agree with me that if what [the complainant] told us about what happened at the time in the trailer is true, all the things that you have had to suffer since the phone calls and the spray painting and the graffiti in the bar, even if they’re not right, they are understandable if what [the complainant] says is true?

A. I don’t understand your question.

. . . . .

Q. If what [the complainant] described in her evidence before this jury under cross-examination is true, then all these subsequent events that have been following you; the phone calls, the spray painting and the graffiti, are at least understandable, are they not?

A. I still don’t understand your question.

Q. They’re consistent with someone’s actions who have been raped?

[Defence counsel]: That’s not . . .

Q. You’ll agree with me, will you not . . .

[Defence counsel]: That’s not a matter that anyone could answer, Your Honour.

A. [the appellant]: I don’t think I’m in that position to say. If she felt she’d been raped, why didn’t she come forward that night?

Q. Well . . .

[Defence counsel]: I say these are all improper questions.

A. [the appellant]: I don’t — I don’t understand. [Crown counsel]: There’s nothing improper, sir. [Defence counsel]: Oh, if . . .

[Crown counsel]: If you’re having some difficulty saying to this court that if a girl was raped, it would be understandable that she might be angry and her friends might be angry and you might have some — the rapist, alleged, might have some actions taken against him! Are you having some difficulty saying that?

A. No, I’m just not following where — what your question is.

Crown counsel’s questioning required the appellant to provide an alternate explanation for the complainant’s behaviour that was not premised on his guilt. Such an explanation would have required the appellant to either comment upon the complainant’s credibility or to give an opinion that he was clearly not qualified to give, explaining why her conduct was inconsistent with someone who had been sexually assaulted. Clearly questions of this nature are improper and unfair. This court has on numerous occasions disapproved of such questions: see, for instance, R. v. Vandenberghe (1995), 96 C.C.C. (3d) 371 at pp. 372-73 (Ont. C.A.).

(ii)  Questions Regarding the Appellant’s Reputation

The second incident involved questions regarding the appellant’s reputation in the community. At pp. 521-22 of the transcript this exchange occurred:

Q. Now I take it particularly from the last few questions my friend has asked you, but there has been quite a public opinion campaign waged against you between May and August 22nd, is that correct? There’d been graffiti on trailer; in fact, you said two times when you spoke to the police?

A. That’s right.

. . . . .

Q. And I take it, certainly from your attitude today, that you were probably upset and to a certain extent, rightfully so, that this public opinion war was going, is that correct?

A. I was annoyed.

Q. And there was a fair bit of talk. It was a small community and there was a fair bit of talk, wasn’t there?

A. In certain circles.

. . . . .

Q. Well, I’m going to suggest to you that after this — after the graffiti in the washroom and the spray painting of your trailer and the rumours that were going around, it must have come as something of a relief to you when you were put in the position of having to call the police, didn’t you. This would finally get cleared up.

Crown counsel’s reference to the “public opinion campaign” against the appellant, her suggestion that there had been a “fair bit of talk” about him, and her remarks about “the rumours that were going around” were all unfair and prejudicial. The appellant had not put his character in issue and as such, Crown counsel’s insinuations that the appellant’s reputation in the community had been adversely affected were irrelevant and clearly improper: see R. v. Hill (1986), 32 C.C.C. (3d) 314 at p. 321, 17 O.A.C. 309.

(iii)  Questions Regarding the Alleged Violation of the Rule in Browne v. Dunn

The third allegation of improper and unfair questioning by Crown counsel involved the rule set out in Browne v. Dunn (1893), 6 R. 67 (H.L.) at pp. 70-71. This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box. In her cross-examination of the appellant at pp. 529-30, Crown counsel sought an explanation from the appellant for defence counsel’s alleged violation of the rule in Browne v. Dunn:

Q. Now, you’ll agree with me, sir, that all through the Crown’s case, all the evidence was that [the complainant] was crying on the drive back to your car on May 8th, that she was crying when she ran into [G.C.’s], that she was shaking, her face was puffy, and you’ll agree with me, sir, that that was never challenged in cross-examination at all. None of those witnesses were challenged on that cross-examination, were they?

A. Well, what you said first there that she was crying in the car.

Q. That was her evidence. It was not challenged on cross- examination.

A. She didn’t cry in the car.

Q. Well, sir, I’m asking you to answer my question. I’m asking you, was she challenged on that in cross-examination.

A. You’re asking me about a specific point of law and . . .

Q. No, sir, I’m asking you about the evidence.

A. Um hmm.

Q. Was she ever, in cross-examination challenged on whether or not she was crying as she was driving back to your car? I submit to you that she wasn’t, was she?

A. I don’t believe so.

Q. [Defence counsel] never suggested to her that she hadn’t been crying, did he? [Defence counsel] never suggested to any of the other witnesses who saw her running in, that she wasn’t crying and upset, did he?

A. I don’t recall, no.

Q. And you’re saying now — and none of this has ever been put to any of the Crown witnesses — you’re giving a totally different version, sir. Can you tell me when it is that you arrived at this version?

The failure of defence counsel to cross-examine the complainant or the Crown witnesses on these issues did not constitute a breach of the rule in Browne v. Dunn. It was clear from defence counsel’s extensive cross-examination of the complainant that the appellant was alleging an account of events which contradicted the complainant’s. The defence was not required to put the Crown on notice of every detail that the defence did not accept: see R. v. Verney (1993), 87 C.C.C. (3d) 363 at pp. 375-76 (Ont. C.A.). As such, Crown counsel’s questions implying that the appellant had somehow acted improperly in his defence were unfair. Furthermore, Crown counsel’s suggestions that the appellant was responsible for the tactical decisions of his trial counsel to not cross- examine the Crown witnesses were unfair and prejudicial.

(iv)  Questions Regarding the Appellant’s Plea

The fourth incident deals with the cross-examination of the appellant on his plea to the charge. When the appellant was asked to enter his plea, he pleaded “innocent”. This plea was immediately corrected by his counsel to “not guilty”. During cross-examination, after the appellant conceded to Crown counsel that he had entered pleas in court on previous occasions, the following exchange occurred:

Q. And you knew perfectly well, only because of that, sir, that the pleas in this court are either guilty or not guilty, correct? Correct? You had done it twice before. Isn’t that so? You know that the proper pleas are guilty or not guilty?

A. I haven’t been in court that often, but I’m not sure what you’re getting at.

Q. Well, you just have to answer . . . [Defence counsel]: I don’t even know myself. [Crown counsel]: Now, please, Counsel, you just have to answer the question. You know the proper pleas are guilty or not guilty, isn’t that so?

A. No I don’t.

Q. You entered those pleas on the two prior occasions relating to this very matter, correct?

A. I think I was told by my lawyer at any given time what I was to say.

Q. Well, sir, you were aware, I put it to you, that it was a little bit of showmanship when you stood up on Wednesday and instead of entering one of the pleas that you are to enter, when you were asked, you said “Innocent”. It was a bit of showmanship, wasn’t it?

A. I don’t think so.

On my reading of the transcript, it seems more likely that the irregular plea was the result of an honest mistake. In any event, this portion of Crown counsel’s cross-examination served no relevant purpose but to embarrass the appellant in front of the jury. As such, these questions were also unfair and improper.

Role of Crown counsel

The effect of Crown counsel’s conduct must be assessed in light of the fundamental role of Crown counsel during a criminal trial. Crown counsel’s role within the criminal justice system is unique. In addition to responsibilities as a public advocate, Crown counsel also serves in a quasi-judicial capacity. In R. v. Stinchcombe, [1991] 3 S.C.R. 326 at p. 341, 68 C.C.C. (3d) 1 at p. 12, Sopinka J. highlighted this aspect of the Crown’s role: “The tradition of Crown counsel in this country in carrying out their role as ‘ministers of justice’ and not as adversaries has generally been very high.”

The classic articulation of Crown counsel’s role was set out in R. v. Boucher, [1955] S.C.R. 16 at pp. 23-24, 110 C.C.C. 263 at p. 270, where Rand J. stated:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

In Boucher, Taschereau J. added the following comments which were cited with approval by Lamer C.J.C. in R. v. Swietlinski, [1994] 3 S.C.R. 481 at pp. 494-95, 92 C.C.C. (3d) 449:

[TRANSLATION] The position held by counsel for the Crown is not that of a lawyer in civil litigation. His functions are quasi-judicial. His duty is not so much to obtain a conviction as to assist the judge and jury in ensuring that the fullest possible justice is done. His conduct before the Court must always be characterized by moderation and impartiality. He will have properly performed his duty and will be beyond all reproach if, eschewing any appeal to passion, and employing a dignified manner suited to his function, he presents the evidence to the jury without going beyond what it discloses.

In this case, the performance of defence counsel (not counsel on appeal) was not a model of advocacy. On the contrary, he was at times provoking, defiant and argumentative and his questioning of witnesses was difficult to follow and unnecessarily lengthy. Such conduct on the part of defence counsel should not be condoned and should be addressed by the trial judge. However, even when, as in this case, the trial judge fails to intervene, improper conduct by defence counsel does not justify improper conduct by Crown counsel. In all circumstances, regardless of defence counsel’s behaviour, Crown counsel should remain scrupulously fair.

Generally, Crown counsel perform all aspects of their functions honourably and fairly, and in most cases the respectable conduct of Crown counsel undoubtedly enhances public confidence in the criminal justice system. To this extent, I note the comments made by Cory J. in R. v. Bain, [1992] 1 S.C.R. 91, 69 C.C.C. (3d) 481, where he states [at pp. 101-02]: “As a rule the conduct and competence of Crown Attorneys is exemplary. They are models for the Bar and the community.” The efforts of Crown counsel are particularly admirable given their significant case loads and considerable resource restrictions.

Notwithstanding the overall commendable conduct of Crown counsel, in recent years, there appear to have been a number of appeals based upon improper Crown counsel conduct during cross- examinations and jury addresses: see, for example, R. v. Peavoy (1997), 34 O.R. (3d) 620, 117 C.C.C. (3d) 226 (C.A.); R. v. Munroe (1995), 96 C.C.C. (3d) 431, 38 C.R. (4th) 68 (Ont. C.A.); R. v. Nugent (1995), 24 O.R. (3d) 295, 100 C.C.C. (3d) 89 (C.A.); and R. v. R. (A.J.) (1994), 20 O.R. (3d) 405, 94 C.C.C. (3d) 168 (C.A.). Unfortunately, this court’s message that improper conduct by Crown counsel will not be tolerated has not always been heeded.

The line between Crown counsel conduct that is merely inappropriate and conduct that is so prejudicial that it deprives the accused of a fair trial is not easily drawn: see R. v. Daly (1992), 57 O.A.C. 70 and R. v. Yakeleya (1985), 20 C.C.C. (3d) 193, 14 C.R.R. 381 (Ont. C.A.). This line is particularly difficult to draw in cases that essentially turn on the credibility of Crown and defence witnesses. In such cases, there often appears to be a temptation to cross the line in an effort to attack the credibility of a witness. The prejudice that results is not easily measured. Respect for the administration of justice is not enhanced where the courts appear to condone improper conduct. In my opinion, the preservation of the criminal justice system requires that appellate courts focus on the classic role of Crown counsel when reviewing allegedly improper Crown counsel conduct.

I recognize that in the midst of a cross-examination of the accused, the dual roles of Crown counsel as both an advocate and a minister of justice may not appear easily reconciled. However, it is appropriate to keep in mind the comments of Cory J.A. in R. v. Logiacco (1984), 11 C.C.C. (3d) 374 at pp. 383-84 (Ont. C.A.), where he said: “There is no reason why a cross- examination cannot be conducted by a Crown prosecutor with some measure of respect for a witness which would not be inconsistent with a skilful, probing and devastating cross- examination.”

The impact of Crown counsel’s improper conduct in this case must also be assessed in light of this court’s decision in R. v. R. (A.J.), supra, where Doherty J.A., while acknowledging that Crown counsel is entitled to vigorously cross-examine the accused, adds the following qualifications:

There are, however, well-established limits on cross- examination. Some apply to all witnesses, others only to the accused. Isolated transgressions of those limits may be of little consequence on appeal. Repeated improprieties during the cross-examination of an accused are, however, a very different matter. As the improprieties mount, the cross- examination may cross over the line from the aggressive to the abusive. When that line is crossed, the danger of a miscarriage of justice is very real. If improper cross- examination of an accused prejudices that accused in his defence or is so improper as to bring the administration of justice into disrepute, an appellate court must intervene.

Counsel for the Crown on appeal characterized the cross- examination of the appellant as “imperfect”. In my view this characterization does not go far enough. Crown counsel’s conduct during cross-examination, viewed in its totality and with regard to the obligation on Crown counsel to act in a scrupulously fair manner, crossed over the line and must be characterized as improper and unfair. While an isolated improper incident may not be sufficient to impugn the verdict, in the present case, the cumulative effect of the improprieties in the cross-examination of the appellant resulted in serious prejudice. In total, the cross-examination of the appellant was only 23 pages. The cross-examination did not assist the jury to understand the real issues in the case and was not a proper test of the reliability or credibility of the appellant’s defence. The four incidents that have been reviewed covered a substantial portion of the total cross-examination. Furthermore, the prejudicial effect of Crown counsel’s cross- examination was in no way diffused by the trial judge.

Failure of the trial judge to comment upon remarks made by Crown counsel

The duty upon the trial judge to ensure an accused receives a fair trial is undisputed. In Brouillard v. R., [1985] 1 S.C.R. 39 at p. 44, 17 C.C.C. (3d) 193 at p. 196, Lamer J. makes the following comments regarding the role of the trial judge:

. . . judges are no longer required to be as passive as they once were; to be what I call sphinx judges. We now not only accept that a judge may intervene in the adversarial debate, but also believe that it is sometimes essential for him to do so for justice in fact to be done.

In support of this contention, Lamer J. cites Lord Denning’s statement in Jones v. National Coal Board, [1957] 2 All E.R. 155 at pp. 158-59, [1957] 2 Q.B. 55: “. . . a judge is not a mere umpire . . . . His object above all is to find out the truth, and to do justice according to law.” It is a rare case where the prejudice that could otherwise flow from an improper cross-examination cannot be effectively checked by the trial judge. At the first sign by either counsel of questions which may lead to an improper cross-examination of a witness, a well-placed comment by the trial judge or a more explicit reminder in the absence of the jury of the proper role of counsel has, in my experience, invariably nipped any problem in the bud. If not, other means are available to the trial judge to assure the proper conduct of counsel.

Crown counsel’s conduct during the cross-examination of the appellant was sufficiently prejudicial to impose a legal duty on the trial judge to intervene: see R. v. Romeo, [1991] 1 S.C.R. 86, 62 C.C.C. (3d) 1. The trial judge never intervened, even when requested to do so by defence counsel. Nor did he say anything in his charge to erase the prejudicial effect of Crown counsel’s improper questions and remarks. This failure of the trial judge to comment would have given the jury the misleading impression that the cross-examination was fair and proper. The improper cross-examination compounded by the failure of the trial judge to intervene clearly prejudiced the appellant in his defence and resulted in a miscarriage of justice.

ISSUE 2: THE USE THAT COULD BE MADE OF THE SPRAY-PAINTED WORDS ON THE APPELLANT’S TRAILER

There is no dispute that the spray-painted words “You Rapest” [sic] were prima facie inadmissible as evidence of a prior consistent statement. It is also not in dispute that if the statement was admissible under an exception to the rule governing the admission of prior consistent statements, it could not be used to prove the truth of its contents.

The rationale for the rule prohibiting the introduction of prior consistent statements was articulated by this court in R. v. Jones (1988), 44 C.C.C. (3d) 248, 29 O.A.C. 219. Goodman J.A., speaking for the court, stated at p. 255:

It is a general rule at common law that a witness may not be called to prove that another witness has previously made a statement asserting certain facts in order to prove the truth of those assertions. That would offend the rule against hearsay. Nor can a witness be called to prove that another witness has made a prior statement consistent with the evidence which such other witness gives at trial. Such a prior statement falls within the category of self-serving evidence, which is easily fabricated and generally speaking is excluded on this basis or on the basis of the rule against self-corroboration. Evidence of a prior consistent statement made by a witness is generally speaking not admissible as evidence of the consistency of such a witness.

As a prior consistent statement, the spray-painted words were inadmissible subject to two exceptions: for purposes of rebutting recent fabrication and as part of the narrative.

Dealing with the first exception, in R. v. Garofoli (1988), 41 C.C.C. (3d) 97, 43 C.R.R. 252 (Ont. C.A.), reversed on other grounds [1990] 2 S.C.R. 1421, 60 C.C.C. (3d) 161, Martin J.A., speaking for this court, stated at p. 145:

Where it is suggested that a witness has fabricated his testimony because of some motive or influence, evidence that the witness made a similar statement before the alleged motive existed is admissible: see R. v. Campbell (1977), 38 C.C.C. (2d) 6 at p. 20 ([Ont.] C.A.) [other citations omitted].

Although it is not always entirely clear from the lengthy cross-examinations and the closing address of defence counsel, I am satisfied that it was not the position of the defence that the complainant fabricated the sexual assault in response to the mischief investigation which occurred three months after the incident. Rather, the defence contended that the mischief investigation merely prompted the complainant to report a sexual assault which she had previously fabricated in order to prevent her boyfriend from discovering she had been unfaithful.

It was undisputed that the complainant had alleged a sexual assault had occurred when she spoke to Ms. L. in the early morning of May 8, 1993. As the defence contended, the fabrication was made, not recently, but a few hours after the incident at the appellant’s trailer and it cannot be maintained that the admission of the spray-painted words “You Rapest” [sic] was needed to rebut an allegation of recent fabrication.

The only basis on which the spray-painted words were admissible was as part of the narrative necessary to explain the circumstances in which the police were contacted and the charges were laid. It would appear that the evidence was introduced as such at trial and no objection was made to its admissibility. As succinctly stated by Finlayson J.A. in R. v. F. (J.E.) (1993), 16 O.R. (3d) 1 at p. 18, 85 C.C.C. (3d) 457 at p. 474:

However, narrative is justified as providing background to the story — to provide chronological cohesion and eliminate gaps which would divert the mind of the listener from the central issue. It may be supportive of the central allegation in the sense of creating a logical framework for its presentation — but it cannot be used, and the jury must be warned of this, as confirmation of the sworn allegation.

(Emphasis added)

As pointed out by Finlayson J.A., the jury must be warned that the narrative evidence cannot be used as confirmation of the truth of the complainant’s allegation. I agree: see also R. v. Codina (1995), 95 C.C.C. (3d) 311 (Ont. C.A.) at p. 330. Not only did the trial judge err in failing to give a limiting instruction, he further erred in inviting the jury to find that the spray-painted words could be used to support the complainant’s version of events. The fact that Ms. L., with the concurrence of the complainant, had painted the accusation on the trailer in no way made it more likely that the allegation of a sexual assault was true.

The Crown properly conceded that a limiting instruction should have been given, and in my view, a limiting instruction was essential. In a case where credibility was of paramount importance, the absence of a limiting instruction together with the instruction inviting the jury to find that the spray- painted words supported the complainant’s story were highly prejudicial to the appellant. The two errors combined — the invitation to make improper use of the statement and the failure to give a limiting instruction — amount to a reversible error and the failure of defence counsel to object to this part of the charge does not rectify these errors.

ISSUE 4: THE TRIAL JUDGE’S ANSWER TO THE JURY’S REQUEST TO REHEAR THE COMPLAINANT’S EVIDENCE

Approximately three hours after commencing its deliberation, the jury returned with a question which was correctly answered by the trial judge and which is not in issue on appeal. One hour and 15 minutes later (the jury had been deliberating for four hours and 15 minutes), the jury returned to report that it was at an impasse. The trial judge gave the jury a fair exhortation and the jury retired to continue its deliberation. At approximately 8:15 p.m. (the jury had been deliberating for approximately nine hours), they returned again and made the following request:

Is it possible for the jury to hear the testimony and cross- examination of [the complainant]?

The trial judge answered the question as follows:

Members of the jury, you have asked another question of the court. The question is:

“Is it possible for the jury to hear the testimony and cross-examination of [the complainant]?”

The simple answer is, yes it is. The difficult side of the answer is as follows: Her examination started on Thursday at about noon and continued through until Friday at 12:30 which means that the transcript, if you wanted to hear that, would take the better part of a day.

To have you hear the transcript, I am told by the court reporter that it doesn’t function well in this room. We have to set up the machinery in the small courtroom down the hall, which would take 15 to 20 minutes and you could then gather in that and hear the tapes.

If that was your choice, we would decide right now then, that you couldn’t go home. You’d be sequestered overnight and have to stay here hearing all of those tapes and then go back to your deciding. Now, I thought with that information you should reconsider your question. If there’s some particular part of the testimony that perhaps counsel and I can recite to you from a combination of our notes, we’d be pleased to do that, but otherwise, you can appreciate it’s a very time- consuming proposition and certainly not one convenient to you, but you’re the boss.

If you would retire and consider what I’ve said, please.

The jury retired again and returned an hour and a half later with a verdict of “guilty”.

The jury asked to rehear all the evidence of the complainant. It was obviously concerned about the complainant’s evidence which was essentially the whole Crown’s case. The trial judge told the jury it was possible but that it would take a long time to rehear her evidence. Having already heard the complainant’s evidence once, the jury no doubt knew how long it would take to hear it again before making the request. The trial judge also told the jurors that they would not be able to go home: “You’d be sequestered over night and you’d have to stay here hearing all those tapes and then go back to your deciding” (emphasis added). The jurors may have been led to believe they would have to remain in the court house overnight to hear the tapes and then continue deliberating. This court has disapproved of juries being made to deliberate through the night: see R. v. Kulak (1979), 46 C.C.C. (2d) 30, 7 C.R. (3d) 304 (Ont. C.A.). The trial judge gave the jury the alternative of having some     particular part of the testimony reviewed from his notes and counsel’s notes, which the jury did not accept. Finally, he told the jury that their request was time-consuming and not convenient. The importance of answering a question from the jury cannot be overstated. In R. v. S. (W.D.), [1994] 3 S.C.R. 521, 93 C.C.C. (3d) 1, Cory J., speaking for the majority, dealt with the significance and importance of questions from the jury. At p. 528 S.C.R., p. 6 C.C.C., he said:

It is true that directions to a jury must always be read as a whole; however, it cannot ever be forgotten that questions from the jury require careful consideration and must be clearly, correctly and comprehensively answered. This is true for any number of reasons which have been expressed by this Court on other occasions. A question presented by a jury gives the clearest possible indication of the particular problem that the jury is confronting and upon which it seeks further instructions. Even if the question relates to a matter that has been carefully reviewed in the main charge, it still must be answered in a complete and careful manner.     It may be that after a period of deliberation, the original instructions, no matter how exemplary they were, have been forgotten or some confusion has arisen in the minds of the jurors. The jury must be given a full and proper response to their question.  The jury is entitled to no less. It is the obligation of the trial judge assisted by counsel to make certain that the question is fully and properly answered.

In this case, the jury never got to rehear the complainant’s evidence: neither the whole of her evidence nor particular parts of it. The words of the trial judge may well have discouraged the jury from rehearing and resolving whatever aspect of the complainant’s evidence it found troubling. In my view, the trial judge should have ensured that the jury’s concerns were met and that it received the assistance it required. In effect, the jury received no assistance from the trial judge with respect to its request.

In a case which turned on the respective credibility of the complainant and the accused, the trial judge’s error was fatal and the conviction cannot stand.

 

DISPOSITION

Ordinarily, the proper disposition of this appeal would be to order a new trial. However, this is not an ordinary situation.

Before this court, the appellant has appealed both his conviction and his sentence of three years’ imprisonment. His conviction was the result of a second trial, a first having resulted in a mistrial. The appellant has already served two and one-half years of the sentence imposed before he was released on bail pending appeal. With respect to the sentence appeal, the Crown acknowledges that it would be appropriate to reduce the sentence to time served.

It has been stated in numerous cases that a stay of proceedings should be ordered only in the “clearest of cases”: see R. v. Young (1984), 46 O.R. (2d) 520, 13 C.C.C. (3d) 1 (C.A.) and R. v. Burlingham, [1995] 2 S.C.R. 206 at p. 231, 97 C.C.C. (3d) 385 at p. 400. This is one of those cases. The appellant has served two and one-half years of his sentence and Crown counsel concedes that the appellant should not be reincarcerated. The appellant has had two trials and a third trial is necessitated in part due to Crown counsel’s conduct. In my view, it would offend the standard of decency to require the appellant to proceed with a third trial and a stay of proceedings is the appropriate disposition.

With respect to the issue of the constitutionality of the jury secrecy rules, the most favourable result which the appellant could expect if he were successful on that ground would be a stay of proceedings of the charges against him. As this result has been achieved, nothing more could be gained by the appellant and it is therefore not necessary to address this issue. As such, I would dismiss the motion to tender fresh evidence.

 

Accordingly, I would allow the appeal, set aside the conviction and enter a stay of proceedings.

 

Appeal allowed.