COURT OF APPEAL FOR ONTARIO

DATE: 20050531

DOCKET: C40546

CRONK, ARMSTRONG AND BLAIR JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Leslie Paine, for the respondent

Respondent

• and -

F.D.J.F.

Joseph DiLuca, for the appellant

Appellant

Heard: December 3, 2004

On appeal from convictions on 12 counts before Justice B. Glass of the Superior Court of Justice, sitting with a jury, on October 31, 2002, and from the parole ineligibility aspect of the sentence imposed on December 16, 2002.

R.A. BLAIR J.A.:

Overview

[1] Mr. F.D.J.F. appeals from his convictions on a twelve-count indictment for sexual assault with a weapon (x2), assault with a weapon (x2), obstructing justice, uttering threats (x3), assault causing bodily harm, unlawful confinement, aggravated assault, and disobeying a lawful order. He was sentenced to fourteen years and two months imprisonment (in addition to the equivalent of twenty-two months of pre-trial custody). In addition, the trial judge ordered that he serve one-half of his sentence before being eligible for parole. Mr. F.D.J.F. also appeals this parole ineligibility disposition.

[2] The facts, as set out below, are particularly egregious.

[3] On behalf of the appellant, Mr. DiLuca skilfully addressed two grounds of appeal with respect to the convictions, namely:

a) that the trial judge erred in permitting the Crown to re-litigate the facts of a prior acquittal in support of its case against the appellant on the charge of obstructing justice; and,

b) that the presence of extra security personnel in the courtroom during the testimony of the complainant, who was in the Witness Protection Program, resulted in irreparable harm to the appearance of fairness, warranting a mistrial.[^1]

[4] With respect to sentence, Mr. DiLuca submitted that (a) the trial judge’s reasons respecting increased parole ineligibility were inadequate, (b) the circumstances of the case did not warrant an order under s. 743.6 of the Criminal Code[^2] and, (c) in the alternative, the trial judge exceeded his jurisdiction in increasing the appellant’s parole ineligibility to one-half of the global sentence he imposed on all convictions because certain of the convictions imposed do not attract the power conferred under s. 743.6 for increasing the period of parole ineligibility.

[5] For the reasons that follow, I would dismiss the conviction appeal, grant leave to appeal sentence, and vary the period of parole ineligibility as set out in paragraphs 45 and 46 of these reasons.

Facts

[6] The complainant is the appellant’s common law spouse of fifteen years. The events that underlie the twelve charges, as set out in the Crown’s case, involve acts perpetrated against the complainant and the couple’s three-year old son that are shocking and offensive in the extreme. They are accurately characterized by Ms. Paine in her factum as constituting “nothing less than a reign of terror” lasting for a period of nine months, from April 2001 to January 2002.[^3]

[7] The appellant was always domineering in the relationship. For instance, he had made the victim support the family as a prostitute and exotic dancer. After the complainant disclosed an extra-marital affair to him in April 2001, however, his pattern of threats and physical abuse escalated virtually to the level of sexual and physical torture. The following summary of the factual basis for the charges is taken from paragraph 2 of the respondent’s factum.[^4] The appellant’s conduct included:

• beating the complainant about the head and body on numerous occasions, including with objects such as a plunger, often leaving her with black eyes and bruising;

• writing words such as “pig”, “slut”, “liar” and “dirt bag” on her naked skin with an indelible marker, and refusing to permit her to remove them;

• threading a needle through her labia majora and threatening to “sew her up”;

• tying the complainant up in the garage, pouring gasoline over her, and threatening to kill her by lighting her on fire;

• handcuffing her to the banister so that she could not escape while he slept;

• attacking her with a kitchen knife (on two occasions);

• threatening to burn her eyes out with a soldering gun and causing burns to her arm, shoulder and temple;

• pouring lighter fluid across her breasts, threatening to light her on fire, and then kicking her with his construction boots;

• repeatedly punching her in the vagina;

• holding their son to the burning fireplace and threatening to throw him in and kill him (on two occasions);

• waving an axe at her head;

• threatening to burn her with a blow torch; and

• cutting her vagina with scissors.

[8] During this period, the complainant went to the hospital twice for treatment for her injuries. On each occasion, she fabricated stories to explain what had happened, as she was instructed by the appellant to do.

[9] The complainant testified that on January 8, 2002, the appellant told her to see if the babysitter could watch their son that day because they were going to take the child to the babysitter’s home and “[t]hen, I’m going to take you home and I’m going to kill you. Today is definitely the day you’re going to die. Today is the day I’m going to get rid of all the problems in my life.” The complainant and the appellant did drop their son off at the babysitter’s home, at which time the complainant told the babysitter that the appellant had threatened to kill her and asked her to call the police. The complainant then got back into the car with the appellant. The babysitter contacted the police, and the appellant was arrested later that same day.

[10] The Crown called medical evidence that supported the complainant’s evidence as to the injuries she had received. The doctor who administered the Sexual Assault Kit to her on January 8, 2002, and the registered nurse who treated her at that time, both confirmed finding a v-shaped cut to the complainant’s labia majora. The nurse reported finding the following: fresh injuries to the complainant’s eyes, head, neck and body; older scars on her hands and arms; discolouration and disrupted texture to the skin under her breasts; fresh punctures on her legs and buttocks; and swelling of the vaginal area. Medical reports verifying the complainant’s visits to the hospital emergency facilities on April 21 and July 7, 2001, were admitted.

[11] The Crown also called a series of witnesses – two neighbours and four police officers – who testified about events that occurred on July 9 and 10, 2001. These events formed the factual basis for the charges on which the appellant had previously been acquitted in November 2001. Defence counsel objected to this evidence, arguing that it was irrelevant to the obstruction of justice charge and that it was tantamount to re-litigating the issues that had already been determined adversely to the Crown. The trial judge allowed the evidence to be admitted, however, on the grounds that (a) it provided the background for the obstruction of justice charge and was part of the total narrative of events surrounding all of the charges, (b) it was relevant to the central issue of the credibility and veracity of the complainant’s testimony, and (c) it was relevant to the issue of whether the complainant provided false evidence at the November 2001 trial.

[12] At trial in the present case, defence counsel did not object to the complainant testifying about the events of July 9 and 10 – conceding this evidence was necessary to provide the factual background for the obstruction of justice charge – or to the testimony of the police officers. Amongst other things, the police evidence established that upon his arrest on July 10, the appellant was observed embracing the complainant and whispering something to her, and that the police had discovered a machete and a pair of handcuffs in the house when they did a search.

[13] The contested evidence was as follows. The complainant’s neighbour, from across the street, testified that on July 9 he had heard swearing and arguing coming from the appellant’s driveway and that he heard the appellant threatening to beat the complainant with a baseball bat and saying, “I will kill you”. A second neighbour, who lived next door, testified that during the morning of July 10, 2001, she heard yelling and saw the appellant chasing the complainant around their backyard with a machete and then dragging her back into the home. She called the police, who came and arrested the appellant.

[14] At the November 2001 trial, the complainant denied that the appellant had threatened her, and maintained that there had been no machete, but that they had been playing with a toy water gun. After the appellant’s arrest in January 2002, however, she revealed – and testified in the present case – that during the embrace on July 10, the appellant had threatened her and told her to lie at his trial. She also revealed that he had used the handcuffs to handcuff her to the banister so she could not escape, as outlined above.

[15] The Crown led other evidence that confirmed the complainant’s overall testimony as well. For instance, the babysitter and a local convenience store operator each gave evidence of observing facial injuries and bruises on the complainant at different times during 2001. The babysitter also testified that the child was afraid of the wood stove in her house, thus lending some credence to the complainant’s evidence that the appellant had threatened to throw the boy into the fire. An acquaintance of the appellant told the jury that the appellant had told him – in the context of a discussion about the wife of the acquaintance leaving him – that, “If my bitch was goin’ to leave me, I’d fuckin’ kill her.”

[16] During a search of the appellant’s home, the police found a pair of scissors with the complainant’s blood on them, an axe, a blow torch, a soldering gun, lighter fluid, rope, padlocks, and a baseball bat that had been studded to make it more dangerous.

[17] The appellant testified at trial. He denied all allegations.

ANALYSIS

(1) Did the Trial Judge Err in Permitting the Crown to Adduce Evidence Respecting the Events of July 9 and 10, 2001?

[18] The appellant submits that the Crown ought not to have been permitted to introduce evidence relating to the facts underlying his earlier acquittal because it allowed the Crown to re-litigate that prior acquittal under the guise of supporting the current charge against him of obstructing justice. Mr. DiLuca makes two points in this regard.

[19] First, he contends that the impugned testimony was barred as a matter of public policy, which favours the finality of an acquittal (subject to appeal) and thereby estopps the Crown from seeking to re-litigate issues previously decided against it on the same evidence: see Grdic v. The Queen (1985), 1985 34 (SCC), 19 C.C.C. (3d) 289 (S.C.C.), rev’g (1982), 1982 363 (BC CA), 3 C.C.C. (3d) 379 at 293-296. Secondly, he argues that the evidence was prejudicial because it (a) improperly bolstered the complainant’s testimony, (b) was evidence of bad character of the appellant and invited the jury to rectify a wrongful acquittal, and (c) distracted the jury from its true task. I do not accept these submissions.

[20] The principle favouring finality of acquittals (autrefois acquit) does not assist the appellant in the circumstances of this case. Grdic itself clarifies that the protection is not available where the acquittal has been obtained by fraud and the evidence of that fraud was not available to the Crown at the time of the first trial through the exercise of reasonable diligence (at 294-296). See also R. v. Smith (1997), 1997 3473 (ON CA), 119 C.C.C. (3d) 547 (Ont. C.A.). While Grdic and Smith are perjury cases, I see no reason why the same principles should not apply where the court is misled as a result of false testimony gained through acts of threat and intimidation. The impact of the fraud is the same: the administration of justice and the integrity of the court’s process are undermined by conduct that is tantamount to deceit.

[21] In Grdic Lamer J., writing for the majority, stated (at 294-295):

Issue estoppel cannot inure to a defendant if it be proven that the issue was determined in his favour as a result of fraud, subject to two limitations, one related to the principle of res judicata, the other the result of a policy consideration related to fairness to the accused and to the judicial process. De Grey C.J., speaking for the court, in Duchess of Kingston’s Case (1776), 2 Smith’s L.C. (13^th ed.) 644, stated clearly the rule as it had already developed at the time, at p. 651:

… if it was a direct and decisive sentence upon the point, and, as it stands, to be admitted as conclusive evidence upon the Court, and not to be impeached from within; yet, like all other acts of the highest judicial authority, it is impeachable from without: although it is not permitted to show that the Court was mistaken, it may be shown that they were misled. [emphasis added]

Fraud is an extrinsic, collateral act; which vitiates the most solemn proceedings of Courts of Justice. Lord Coke says, it avoids all judicial acts, ecclesiastical or temporal.

Fraud may be set up against an accused so as to deny him the benefit of issue estoppel.

[22] In Smith, Carthy J.A. concluded that the notions of issue estoppel and res judicata should be applied differently and more narrowly in the criminal context than in a civil context. He would extend “the narrowest protection to the accused, sufficient only to effectively protect against being tried a second time for the same offence” (at para. 14).

[23] Here, the appellant’s acquittals on the two assault charges in November 2001 were the result of the fraud perpetrated on the court through the accused’s threats and intimidation of the complainant that influenced her misleading testimony at that trial. The Crown did not become aware of the evidence that the appellant had threatened the complainant on numerous occasions between July 10 and November 1 – particularly on July 10 – in order to cause her to testify falsely at his November 1 trial, until after the appellant’s arrest on the present charges. Moreover, as the Crown points out, “[t]he evidence was not available to the Crown precisely because the appellant had been successful in his efforts to obstruct justice”[^5].

[24] Although the Crown called the same witnesses at the present trial to testify as to the same facts they had related in the previous trial, the Crown also had the new additional evidence regarding the threats between July 10 and November 1. Thus, it was not a question of the Crown simply attempting to re-litigate the same issue that had been litigated previously and inviting the jury to reconsider the same evidence and come to a different conclusion than the previous trier of fact. Grdic and Smith confirm that the Crown is entitled to tender this evidence, together with the evidence led at the first trial, at the subsequent trial (See Grdic at 295).

[25] Accordingly, I would not give effect to this ground of appeal.

[26] Nor do I accept the argument that the evidence of the events of July 9 and 10 (except for the complainant’s version) was inadmissible on prejudice grounds. The evidence was clearly relevant (a) to the obstruction of justice charge and to an explanation of the complainant’s conduct, in particular, and (b) to the broader and pivotal issue of the complainant’s credibility, in general. The mere fact that the testimony of the two neighbours and of the police officers tended to confirm some aspects of the complainant’s testimony does not mean that it “improperly bolstered” that testimony. The relevance of the evidence related to the truth of the complainant’s testimony, not to the truthfulness of the complainant as a witness: see R. v. Samuel 2005 15700 (ON CA), [2005] O.J. No. 1873, at para. 73.

[27] While the evidence of the July 9 and 10 events may well have been viewed as evidence of discreditable conduct on the part of the appellant, the prejudicial effect of such evidence was effectively offset by its probative value and by the trial judge’s instruction on how to deal with it, as well as by the fact that, overall, the evidence was no more or no less “discreditable” than the other relevant acts of misconduct alleged against the appellant. For similar reasons, the jury was unlikely to have been distracted from its true task by the reception of this evidence; nor, in my opinion, was it likely to convict the appellant on the obstruction of justice or other charges because the jurors felt he had been “wrongfully acquitted” in November 2001.

(2) Did the Trial Judge Err in Failing to Direct a Mistrial because of the Presence of Witness Protection Personnel in the Courtroom during the Testimony of the Complainant?

[28] The appellant also argues that the presence of extra security personnel in the courtroom during the testimony of the complainant – who is in the Witness Protection Program – resulted in irreparable harm to the appearance of fairness and, therefore, warranted the direction of a mistrial. I do not agree.

[29] There is little authority on the issue of courtroom security as it relates to protection provided for complainants (or other witnesses) who are in the Witness Protection Program. Some assistance may be gleaned from cases dealing with courtroom security in other contexts, however – notably, those involving the shackling and handcuffing of accused persons.

[30] In R. v. McNeill (1996), 1996 812 (ON CA), 108 C.C.C. (3d) 364 (Ont. C.A.) at 367, this court accepted the following statement by Then J. in R. v. Jones and Francis (1996), 1996 8006 (ON SC), 107 C.C.C. (3d) 517 (Ont. Ct. Gen. Div.) at 531, as an accurate summary of the law in relation to the shackling of in-custody accused:

The authorities cited by the Crown persuade me that the preliminary inquiry judge erred in not holding a hearing once the issue of shackling of the applicants in the courtroom was raised. Thereupon he ought to have exercised his discretion on the basis of the evidence adduced and submissions of counsel.

The manner in which the discretion is to be exercised is for the judge to determine in the particular circumstance of each case in which the issue of shackling of a prisoner in the courtroom is raised. The authorities which have been cited to me suggest that a balance should be struck between the duty of the judge to ensure the safety in [of] all participants to the proceeding and to prevent escape on the one hand, and the need to maintain the dignity of the prisoner in the context of the presumption of innocence on the other. In effecting this balance the views and expertise of the security personnel will no doubt be given considerable weight. The ultimate determination, however, must be made by the presiding judge and not by security staff.

[31] These principles are equally applicable in the context of courtroom security surrounding witnesses in the Witness Protection Program, in my view. See also R. v. Brown, [1998] O.J. No. 4682 (Ont. Ct. Gen. Div.); R. v. Faulds (1996), 1996 2579 (ON CA), 31 O.R. (3d) 111 (C.A.); R. v. Laland (1999), 1999 2388 (ON CA), 138 C.C.C. (3d) 441 (Ont. C.A.).

[32] Although the police are responsible under the Police Services Act[^6], for ensuring the security of judges and of persons taking part in or attending proceedings, it is for the trial judge, and not the Crown or the security personnel, to decide the nature and extent of the security to be put in place in the courtroom (See R. v. Jones and Francis). The trial judge should be informed of the pending situation before the protected complainant or witness is called to testify, and a hearing held during which the trial judge is fully apprised of the circumstances, the reasons for the proposed presence of security personnel during testimony, and the form it is proposed the security presence will take. The trial judge will then be in a position to make a ruling that appropriately balances the factors mandated by the authorities, namely, the need to ensure the safety of all participants in the courtroom – including the complainant or witness – while at the same time preserving the appearance of fairness towards the accused having regard, in particular, to the need to safeguard the presumption of innocence.

[33] Here, there was a hearing of sorts before the complainant was called to testify. The record shows that the trial Crown, defence counsel and the trial judge had discussed the issue at the outset of trial and had agreed that the complainant would be accompanied by a security detail when she gave her evidence. This was considered to be “standard procedure”. However, it appears that neither the Crown nor defence counsel, nor the judge, was fully apprised of what this meant or of the extent of the security presence that would be put in place when the complainant entered the courtroom and during her testimony. It would have been preferable, and considerable difficulty would have been avoided, if they had been so advised.

[34] The complainant was the Crown’s primary witness. When she first entered the courtroom at 4:20 P.M. on the opening day of trial, she was escorted by four plainclothes security personnel – two in front of her and two behind her – described by defence counsel as “muscular men in plainclothes with audio pieces visible in their ears”. Although the security personnel were armed, their weapons were not visible. The officers accompanying the complainant walked with her as she entered the courtroom and approached the witness box, and two of the four security personnel stood behind her while she testified that day. They did not make any other gestures or motions of protection and nobody approached or stood near the accused.

[35] The complainant’s testimony lasted ten to fifteen minutes that afternoon. During that testimony, the Crown elicited from the complainant the fact that she was in the Witness Protection Program.

[36] Before the commencement of testimony the following morning, defence counsel raised his concerns about the presence of the security personnel, arguing that it would prejudice the accused in the eyes of the jury, and requesting a mistrial. The trial judge declined to grant the mistrial. He advised counsel that he intended to instruct the jury that the complainant was in the Witness Protection Program and that they should not speculate as to why that was so. He observed that “as the case develops [and] if more evidence surfaces with respect to the matter” a further instruction might be required. There was no objection to this approach. It was agreed that one plainclothes officer would accompany the complainant, and stand behind her while she testified, thereafter.

[37] Before the complainant returned to the witness stand, the trial judge instructed the jury as follows:

Good morning, members of the jury. Before our witness returns, I wish to just direct your attention to a brief instruction.

As you would have noticed yesterday when [the complainant] attended court, police officers attended with her and she indicated to me that she is in the Witness Protection Programme.

The officers who attended with her, are part of the police service that assists individuals in that Programme and their responsibility is to be with the person when attending, for example, a function such as this court trial. An officer will be at the front of the courtroom in the area where that witness is and that is simply part of the regular procedure that is followed by a police service division that is part of the Witness Protection Programme.

You should not speculate as to why the person is in the Witness Protection Programme. She has simply advised you that she is. So, that is a non-issue at this point. [emphasis added]

[38] In my view, this instruction was sufficient to deal with whatever impressions the jury may have developed from the events surrounding the complainant’s brief appearance and testimony the previous afternoon. Thereafter, the level of security provided – a single plainclothes officer standing behind the complainant during her testimony – was in accordance with the agreement worked out between the Crown and the defence, with the approval of the trial judge. While the trial judge did not return to the subject as the case developed, or during his jury charge, there were no further objections by defence counsel and the judge was entitled, in his discretion, to leave the instructions as they were – particularly since revisiting them would only have highlighted the very situation the defence was seeking to avoid.

[39] I would not give effect to this ground of appeal.

(3) Did the Trial Judge Err in Increasing the Appellant’s Parole Ineligibility to One-Half of the Global Sentence?

[40] The appellant submits that the parole ineligibility order should be quashed because (a) the trial judge did not provide adequate reasons for his decision in that regard, and (b) there was insufficient basis to justify an order for increased parole ineligibility under s. 743.6 of the Criminal Code. Alternatively, he argues that the order should be varied to take into account only those offences set out in Schedule 1 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. I agree that the order should be varied, but I would otherwise dismiss the sentence appeal.

[41] Section 743.6 gives the court power to delay parole. Subsection 1 provides that, upon a conviction for an offence set out in Schedule I or II of the Corrections and Conditional Release Act,

[T]he court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.

[42] While that part of the trial judge’s reasons dealing directly with the parole ineligibility question is brief, it must be read as a part of, and a continuum of, his overall reasons on sentencing. He dealt with the circumstances of the commission of the offence and the circumstances of the offender throughout those reasons, as well as with the principles of denunciation and deterrence. When it came to the Crown’s submission that the appellant should be required to serve one half of the sentence before being eligible for parole, the trial judge said:

I accept that submission because the nature of the offences is very violent. The period of time for these offences was over three-quarters of a year. This was not a one-time event in which a person simply lost his self-control, this was a constant terrorizing of the victims in a cruel and unusual manner. It calls for more extreme denunciation of the offences, as well as for more significant specific deterrence.

[43] Thus, the trial judge applied his mind to the relevant criteria under s. 743.6 and his reasons, when read as a whole, sufficiently explain why he came to the conclusion he did. There was ample support on the record for an order for increased parole ineligibility in the circumstances of this case. As this court noted, in R. v. Cheddesingh (2002), 2002 49362 (ON CA), 168 C.C.C. (3d) 310 (Ont. C.A.), aff’d (2004), 2004 SCC 16, 182 C.C.C. (3d) 37 (S.C.C.) at para. 20:

If the offence is one of unusual violence, brutality or degradation, then the need to strongly express society’s denunciation of the offence may make a s. 741.2 order appropriate.

[44] The lengthy reign of terror of violence, brutality and degradation inflicted by the appellant on his victims fully justifies the trial judge’s decision to impose the maximum period of parole ineligibility. See also R. v. Zinck (2003), 2003 SCC 6, 171 C.C.C. (3d) 1 (S.C.C.) at paras. 30-31.

[45] Such an order can only be made in respect of an offence set out in the Schedules to the Corrections and Conditional Release Act, however. Some of the offences for which the appellant was convicted do not fall under the Schedules.[^7] The total of three years consecutive time represented by the sentences for those offences must, therefore, be subtracted from the global sentence of sixteen years that the trial judge imposed, for purposes of calculating parole ineligibility. That reduces the period of parole ineligibility to six and one-half years.

[46] I do not accept the appellant’s submission that the total sentence for which the parole ineligibility period may apply should be reduced by a proportional amount of the two-for-one time credited for pre-trial custody. The trial judge reduced the global sentence of sixteen years imposed by twenty-two months to give effect to the eleven months of pre-trial custody served by the appellant. Any further reduction would credit the appellant twice for pre-trial custody. The trial judge clearly intended that the appellant serve one-half of the net global sentence of fourteen years and two months. I see no reason to interfere with that determination in the circumstances, and I would accordingly reduce that amount only to the extent necessary to account for the offences that cannot properly be included in the calculation.

Disposition

[47] For the foregoing reasons, then, I would dismiss the appeal as to the convictions. With respect to the sentence appeal, I would grant leave to appeal the parole ineligibility portion of the sentence imposed and vary the period of parole ineligibility to six and one-half years, but would otherwise dismiss the sentence appeal.

“R.A. Blair J.A.”

“I agree E.A. Cronk J.A.”

“I agree R.P. Armstrong J.A.”

RELEASED: May 31, 2005

[^1]: Appellant’s factum, para. 3.

[^2]: R.S.C. 1985, c. C-46.

[^3]: Respondent’s factum, para. 2.

[^4]: A more graphic and descriptive outline of the same facts is set out at pp. 3-5 of the appellant’s factum.

[^5]: Respondent’s factum, para. 10.

[^6]: R.S.O. 1990, c. P. 15, s. 137.

[^7]: The offences not listed in the Schedules are: Count #3 (obstruction of justice – 1 year consecutive); Counts #4, 5, and 10 (threatening death – 1 year consecutive, 1 year concurrent, and 1 year concurrent); and Count #12 (disobeying a court order – 1 year consecutive).