W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
COURT OF APPEAL FOR ONTARIO
FELDMAN, GILLESE and ARMSTRONG JJ.A
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
And
TOMMIE HOOHING and NEDLEY LEE BUCKLE
Appellants
P. Andras Schreck for the appellant Tommie Hoohing
Nicholas A. Xynnis for the appellant Nedley Lee Buckle
Jamie Klukach and Robin Flumerfelt for the respondent
Heard: February 15, 2007
On appeal from the conviction by Justice Robert N. Weekes of the Superior Court of Justice dated March 4, 2004.
FELDMAN J.A.:
1The appellants along with another man, Thomas Garcia, were tried together by a judge and jury and convicted of the sexual assault of E.F, the complainant. Garcia was also convicted of forcible confinement while the appellant Tommie Hoohing was acquitted of that charge. Both appellants appeal their convictions.
2Together they raise two issues:
(1) whether the trial judge misstated the first prong of the instruction in R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.); and
(2) whether the trial judge erred by wrongly relying on the case of R. v. Riley (1992), 1992 7448 (ON CA), 11 O.R. (3d) 151 (C.A.) and refusing to allow defence counsel to cross-examine the complainant on an incorrect identification she made in court of a fourth assailant, Lawrence.
The appellant Nedley Lee Buckle raises two further issues:
(3) whether the trial judge erred by acting on his own motion revoking the appellant’s bail during the trial, without giving counsel the opportunity to make submissions; and
(4) whether the trial judge erred in his charge to the jury by failing to leave with them the potential to infer that because, according to Buckle, the complainant engaged in consensual sex with him before and particularly after the alleged sexual assault, that makes it unlikely that the appellant sexually assaulted her in the time period in between.
3For the reasons that follow, I would not give effect to any of these grounds of appeal and would dismiss the appeals.
FACTS
4On a Friday evening in late November, 2000, around 11:30 p.m. the complainant took a cab to a bar she frequently went to with friends. She only had $20 for the cab and drinks but expected her boyfriend would arrive following his night shift to drive her home. When he did not arrive, she was offered a ride with an acquaintance but declined because she did not feel she knew him well enough. Instead, she went with Garcia, a longstanding friend of her boyfriend. He had arranged for the appellant Hoohing to drive her home. However, rather than take her home, he brought her to Garcia’s apartment. The complainant protested when the appellant turned onto Garcia’s street. He did so anyway, telling her they were just stopping briefly to have a beer.
5When they arrived, Garcia, the appellant Buckle, another man whom the complainant knew as “Lawrence”, and a woman friend of Garcia were also present. The woman absented herself to the bedroom and the men put on a pornographic movie and began drinking beer. The complainant went to use the washroom. While she was in there, the appellant Buckle entered and raped her both vaginally and anally, though she yelled for him to stop. After Buckle left, Garcia entered. The complainant asked him why he had not come in and stopped Buckle when he heard her yelling. Garcia took out his penis and asked her to “suck him off”. She refused and left the bathroom.
6The complainant tried to use the phone but Garcia prevented her from doing so. Lawrence came behind her and when he rubbed his penis against her, she scratched it. He called her a “bitch” and struck her on the head. The appellant Hoohing then intervened, told the others to leave her alone, and told her he would give her a ride home. She left the apartment and got into the back of a van with the appellant Hoohing and Lawrence in the front. Instead of driving her home, Hoohing told Lawrence to drive down a side street. He then got into the back of the van and raped the complainant while Lawrence restrained her. When she vomited, Hoohing called her a “bitch” and removed her from the vehicle, leaving her to walk home alone.
7While the complainant told other people what had happened, she only went to the police in March, 2001. She said that she wanted to forget about it but was unable to. She also did not want to tell her boyfriend, fearing he might feel uncomfortable with her.
8At trial, the appellant Buckle denied having intercourse with the complainant that night. He explained the presence of his semen on her skirt by saying that he and the complainant had consensual intercourse seven or eight times prior to that evening and twice afterward. The complainant denied any sexual involvement with the appellant. She said she did not know him before that night except to say hello in the bar.
9The appellant Hoohing admitted having intercourse with the complainant in the backseat of the van that night but claimed it was consensual and was instigated by the complainant. During cross-examination by the Crown, he said that he had had intercourse with her previously in similar circumstances, that is, in the back seat of the van with Lawrence driving. The complainant denied knowing Hoohing other than having seen him in the bar and knowing he played soccer with her boyfriend.
ISSUES
10Both of the appellants say the trial judge made the following two errors:
(1) His instruction to the jury on W.(D.) was incorrect by asking the jury to assess the appellant’s evidence in the context of the other evidence. They say this instruction had the effect of suggesting to the jury that they choose between the evidence of the appellants and that of the complainant.
(2) He erred by ruling that the appellants could not cross-examine the complainant on her incorrect in–court identification of Hoohing’s brother as “Lawrence”.
The appellant Buckle also raises two further alleged errors:
(3) The trial judge erred when, following the appellant’s testimony, he revoked the appellant’s bail of his own motion and without giving counsel an opportunity to make submissions, causing the appellant prejudice and the appearance of unfairness.
(4) The trial judge erred by not leaving with the jury the possibility that they could infer that it was unlikely that the appellant raped the complainant when, according to him, they had consensual intercourse after the alleged sexual assault.
ANALYSIS
Issue 1: The W.(D.) Instruction
11At the conclusion of the substantive portion of the jury instruction, the trial judge gave the following instruction on the approach to arriving at their verdicts:
In arriving at your verdicts you should take the following approach. Consider each accused person in turn. In the case of count one that means you must consider all three accused men in turn. In the case of count two, you will have to consider Mr. Garcia and Mr. Hoohing. In respect of the count that you are then considering, if you accept the evidence favouring the particular accused, whom you are then considering, on these matters and find it to be factually true when weighed against the contradictory evidence you must acquit that accused on such count. Second, even if you do not find as a fact that the evidence favouring the accused, whom you are then considering on these matters is true, but have a reasonable doubt as a result of it you must also acquit that accused on that count. Third, even if you do not have a reasonable doubt on these matters as a result of the evidence favouring the particular accused, whom you are then considering, because you reject that evidence as untrue you must still determine whether the Crown has convinced you of the guilt of that accused beyond a reasonable doubt on the basis of the evidence which you accept and find to be factually true.
Keep in mind that you are not compelled to choose between the evidence favouring the Crown and the evidence favouring the accused on the essential matters, particularly if each version appears to be credible in the sense that you are unable, after reasonable and thorough deliberation, to determine where the truth lies. Rather, the Crown bears the burden of proving the guilt of each accused beyond a reasonable doubt and if it does not do so in respect of any one or more of the accused you must acquit.
12Both at trial and on appeal, defence counsel objected to the way the trial judge described the first prong of the W.(D.) approach, where he said “…if you accept the evidence favouring the particular accused … and find it to be factually true when weighed against the contradictory evidence you must acquit that accused on that count.” [Emphasis added.] The appellants submit that the trial judge added the words “when weighed against the contradictory evidence” to the formulation first set out by Cory J. in W.(D.) and to the formulation in the standard charge forms prepared by Watt J. They say this had the effect of asking the jury to choose between the version of the accused and that of the complainant. The appellant Buckle also submits that it was an error for the trial judge to refer to the evidence “favouring” the accused rather than just to the evidence of the accused, as the jury need only accept the evidence of the accused to acquit even if they do not accept other evidence that favours or supports that accused.
13Although it would have been preferable for the trial judge to have followed the formulation of Cory J. in W.(D.), I do not agree that he erred on either account. Prior to dealing with the jury’s approach and the W.(D.) instruction, the trial judge gave the jury a detailed review of the evidence wherein he delineated all of the evidence favourable to each accused as well as the evidence relied on by the Crown. He also pointed out inconsistencies in the evidence of the witnesses. In that context, much of what he outlined was evidence favourable to one or more of the three accused and could properly be taken into account by the jury when considering the first prong of W.(D.).
14The trial judge properly told the jury that they are not compelled to choose between the evidence favouring the Crown and the evidence favouring the accused on essential matters because the burden is on the Crown to prove guilt beyond a reasonable doubt.
15He also properly told the jury that they were to weigh the evidence cumulatively and not in isolation. A jury does not consider an accused’s version of events in isolation as if the Crown had led no evidence. When the jury is applying the first two prongs of the three-pronged test in W.(D.), they are deciding whether they accept the accused’s version of events or whether it leaves them with a reasonable doubt. Clearly they can only do that by assessing the accused’s evidence and the other evidence that favours the accused in the context of all the evidence. See R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 at para. 5 (C.A.). The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of an accused, may no longer raise a reasonable doubt.
16This court recently considered the same impugned wording in the case of R. v. Campbell, 2003 48403 (ON CA), [2003] O.J. No. 1352. Relying on its earlier 1996 decision in R. v. D.L.M., [1996] O.J. No. 3596, the court held that the wording in question did not constitute an error. In Campbell, the court acknowledged that “it would have been preferable to describe this step in terms of considering the accused’s evidence in the context of the entirety of the evidence, since this steers more clearly away from the risk of simply choosing between the accused’s evidence and the complainant’s evidence.” However, the court did not consider the language fatal because it does not invite the jury to choose between the two versions but recognizes that the jury can only consider the accused’s evidence in the context of the other evidence. See also R. v. Requina, [1994] O.J. No. 1133 (C.A.) at paras. 5-6.
Issue 2: Limitation of Cross-Examination of the Complainant –Application of Riley
17The man “Lawrence” was never identified until the appellant Hoohing said his name during his testimony. Before that, during her examination-in-chief, the complainant saw a man in the courtroom whom she believed could be Lawrence. She told the Crown and Victims’ Services about the man saying she thought it was Lawrence except that he did not have a big wart on his nose and Lawrence did. The man was the appellant’s brother, Wayne Hoohing. He was questioned and released.
18Counsel for the appellant Hoohing sought to cross-examine the complainant on her identification in order to attack her credibility by suggesting that she was cavalier about making suggestions about people. The trial judge refused to allow defence counsel to pursue the line of cross-examination, ruling that the probative value of the evidence was significantly outweighed by its prejudicial effect. He agreed with Crown counsel that the situation was similar to the decision of this court in Riley insofar as the inquiry into the circumstances of the identification, how much Wayne Hoohing looked like Lawrence and why the police did not charge him, were not relevant to the guilt or innocence of the accused. In both cases, an extensive inquiry into these subjects would have had a prejudicial effect on the trial.
19The appellant submits that the trial judge erred in this ruling. In his submission, the “false” allegation by the complainant was not a collateral matter but related directly to the sexual assault she was alleging occurred. He submitted further that it could be used to show animus by the complainant against the appellant Hoohing because she falsely identified his brother. In making this latter suggestion, appeal counsel acknowledged that trial counsel did not make this submission to the trial judge, but says that it would nevertheless have been open to the jury to draw this inference.
20Riley was also a case where the accused was charged with sexual assault. Defence counsel wished to cross-examine the complainant about another allegation she had made of sexual assault against another man, then to call that man to say the allegation was false. The trial judge ruled that the proposed line of questioning was irrelevant. This court affirmed the decision of the trial judge. The court stated that the only relevancy would be to establish a pattern of false allegations by the complainant. However, to do that, the defence would have to be able to prove that the other allegation was false. In that case, the other man had been charged and acquitted, but that acquittal did not prove that the complainant’s testimony had been fabricated. The court concluded that the proposed cross-examination was on a collateral matter and was essentially an attack on the general character of the complainant and that the trial judge properly exercised his discretion to exclude it.
21The same issue was faced by this court in the case of R. v. A.R.B. (1998), 1998 14603 (ON CA), 41 O.R. (3d) 361. In that case, the appellant was convicted of sexually assaulting his fourteen year old adopted daughter. The complainant had alleged that her foster brothers had also sexually assaulted her. Counsel for the appellant wanted to cross-examine the complainant on her allegations about her brothers, then call the brothers to deny the allegations. The trial judge refused, applying Riley. Finlayson J.A. for the majority of this court upheld the decision of the trial judge. Moldaver J. A. dissented on the basis that the proposed evidence in that case was not collateral because it was capable of resolving an essential issue in the case which was the appellant’s opportunity to commit the offences in the conditions that prevailed in that household. Moldaver J.A. referred to the decision of the Supreme Court of Canada in R. v. B.A.W., 1992 24 (SCC), [1992] 3 S.C.R. 811 where McLachlin J. distinguished between evidence that is collateral because it goes only to general credibility as opposed to evidence that goes to a live issue in the case. Moldaver J.A. observed that, unlike in the case before him, the evidence in B.A.W. and in Riley was “designed to portray the complainant as the type of person who should not be believed because she had a propensity to make up false accusations” (A.R.B., supra at 374).
22In my view, the analysis from both opinions in A.R.B. is instructive for application in this case. First, Moldaver J.A. was only prepared to allow the line of questioning if it addressed a live issue in the case other than the complainant’s alleged propensity to make up false allegations. However, it was that latter inference that defence counsel in this case wished the jury to draw from the proposed questioning about the incorrect identification of Lawrence. Second, as this was not an identification case, there was no relevance to the questioning to show inability to accurately identify someone. Third, the suggestion of animus against Hoohing was not made by trial counsel, nor does it bear any scrutiny. It would be based on the premise that the complainant made a knowingly false allegation that she knew would be proved false, in an effort to help her case and to hurt Hoohing. However, by making a deliberately false statement that would be shown to be false, the complainant would only hurt her own case, which would help Hoohing. Finally, the way the complainant made the identification when she thought she recognized “Lawrence” in the courtroom, by saying that he looked like him except he was missing the large wart on his nose, suggested that she was making a mistake, not telling a lie.
23After considering the Riley case, the trial judge applied the correct test in exercising his discretion by weighing the probative value against the prejudicial effect of the proposed line of inquiry. Furthermore, I agree with his conclusion and would not give effect to this ground of appeal.
Issue 3: The revocation of Buckle’s Bail
24Immediately following Buckle’s testimony which was close to the end of the trial, the trial judge announced that he was revoking his bail. He said:
Having listened to Mr. Buckle’s evidence today I have absolutely no confidence in him and his ability to comply or his willingness to comply with his terms of release between now and the conclusion of the trial, and in particular I’m particularly concerned that he might not come to court. He’s, in my view, a complete stranger to the truth and so I propose to put Mr. Buckle in custody unless I am told that this cannot be kept from the jury.
25Arrangements were then made to ensure that the jury would not see that the appellant Buckle was now in custody. Because he was not under any restraint while in the courtroom, the trial judge posted two officers at the back of the courtroom and had the deputy tell the jury that this was normal procedure at the end of a trial.
26Trial counsel asked the judge if he wished to hear from her on the issue, and he said he did not. The next morning, trial counsel objected to the order revoking the appellant’s bail and to the procedure adopted by the trial judge as a denial of natural justice. She outlined several concerns about differences that the jury might now observe in the courtroom now that the appellant was in custody and also pointed out that the appellant had been on bail without incident for over three years. She asked the trial judge to declare a mistrial and to recuse himself from the appellant’s proceedings. The trial judge refused both requests and restated the precautions being taken to ensure that the jurors would not know of the change of circumstances affecting Buckle.
27On this appeal, counsel submits that the trial judge’s conduct was high-handed and violated the appellant’s right to a fair trial.
28Section 523(2) of the Criminal Code allows a trial judge at any time “on cause being shown” to revoke a previous bail order and make any other detention or release order as the judge “considers to be warranted.”
29The trial judge gave reasons why he believed that cause had been shown and that the appellant’s detention had become warranted. I understand that his concern was that the appellant might now not show up for the conclusion of the trial because he knew that the evidence he gave was false and unbelievable. Although the trial judge should have asked for submissions from defence counsel before he made his decision, he corrected his error the next morning, allowing her to make submissions on whether the order was appropriate and could be implemented without alerting the jury. He made it clear in his response that he had taken numerous procedural precautions and was satisfied that they were effective. There is no suggestion that there was in fact any prejudice to the fair trial of the appellant.
30I conclude that the trial judge was entitled to revoke the appellant’s bail in accordance with s. 523(2) of the Code. Although rarely used mid-trial, and even more rarely on a judge’s own motion, this power is an important aspect of the ability of a trial judge to control the trial process—in this case to ensure that the accused will appear to the conclusion of the trial. The trial judge corrected his initial failure to hear submissions from defence counsel and ensured that there would be no prejudice to the fair trial rights of the appellant. I am satisfied that there was no unfairness or appearance of unfairness.
Issue 4: The relevance of the appellant Buckle’s evidence that he had previous and subsequent sexual contact with the complainant
31The appellant Buckle submits that the trial judge erred by not explaining to the jury that they could infer that it was unlikely that he would have raped the complainant given his claim that she had had consensual intercourse with him several times before and twice after the alleged sexual assault.
32I see no merit in this submission. It was not requested by defence counsel at trial either in pre-charge discussions or in post-charge objections. The evidence was not admitted for the purpose suggested, nor could it have been. The trial judge allowed the evidence of other sexual conduct into evidence as the appellant’s explanation for why his semen was found on the complainant’s skirt and he explained that to the jury in his charge. He also related it to the defence theory that the complainant falsely accused the appellant in retaliation for his refusal to have a relationship with her.
RESULT
33In the result, I would dismiss the appeals of both appellants against conviction. The appellant Buckle abandoned his sentence appeal in writing prior to the hearing of the appeal. The appellant Hoohing did not pursue the sentence appeal at the hearing.
RELEASED: August 27, 2007 “KNF”
“K. Feldman J.A.”
“I agree E.E. Gillese J.A.”
34I have read my colleague’s reasons and I am in agreement with her that the appeals of both appellants should be dismissed. However, I disagree in respect of one issue – the revocation of Buckle’s bail. I do not agree that the trial judge was entitled to revoke Buckle’s bail on his own initiative simply because he found him to be “a complete stranger to the truth”.
35It is of fundamental importance that before taking the rare step of revoking the bail of an accused at trial that the full panoply of procedural safeguards be granted to the accused. This is particularly so when the trial judge initiated the revocation. There was a complete failure to accord procedural fairness to the appellant in this case, although I agree with my colleague, that this appears to have been corrected when the appellant’s counsel moved for a mistrial on the following day. That said, this was an accused person who had been on bail for three years and I can see no reasonable basis for the judge’s concern that Buckle should, at this stage, have his bail revoked because he found him to be an untruthful witness. There is nothing in the trial judge’s reasons which connect his finding of untruthfulness to the likelihood that he would not continue to attend trial.
36While I take a different view than my colleague of the judge’s revocation of the bail, I am not persuaded that it had any effect on the verdict of the jury and therefore I would not interfere in the result.
“Robert P. Armstrong J.A.”
