WARNING
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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
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. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
Laskin, Rosenberg and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
G.M.
Appellant
Kristin Bailey, for the appellant
Holly Loubert, for the respondent
Heard: December 6, 2010
On appeal from the conviction entered by Justice Robert F. Scott of the Superior Court of Justice on October 14, 2009.
I. OVERVIEW
1On the afternoon of November 17, 2008, the complainant, then 15 years old, went to the apartment that the 37-year old appellant shared with his 17-year old girlfriend, J.P., to smoke marijuana and drink alcohol. The complainant alleges that the appellant asked to speak to her privately and, when out of sight of the others, forced himself on her and engaged in sexual intercourse against her will. The appellant testified. He denied that any sexual encounter took place between him and the complainant on the night in question. In fact, he denied ever being alone with the complainant at all.
2After a two-day, judge-alone trial, the trial judge found that he did not believe the appellant and that he was satisfied, based on the Crown’s evidence, that the appellant had sexually assaulted the complainant. He convicted the appellant of sexual assault and sentenced him to 54 months imprisonment.
3The appellant appeals his conviction, arguing that the trial judge relied on inadmissible evidence in assessing his credibility, allowed the Crown to ask impermissible questions and failed to properly apply the analysis prescribed by D.W. v. The Queen, 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
4The appellant and the Crown have each brought an application seeking leave to introduce fresh evidence.
5I would dismiss the appeal. In my view, the appellant received a fair trial. I find no fault in the trial judge’s treatment of the evidence or in his analysis leading to his conclusion that the Crown had proven, beyond a reasonable doubt, that the appellant sexually assaulted the complainant. For the reasons set out below, I would not admit the fresh evidence.
II. FACTS
6At the time of the alleged offence, the appellant shared an apartment with J.P., his friend, J.B. and the appellant’s 16-year-old son, S.M. The complainant, having recently decided to run away from home following a fight with her mother, went to the apartment with two female friends, K.C. and B.G., around 3:30 in the afternoon. Shortly after their arrival, the complainant began smoking marijuana with K.C., B.G., and J.P. The appellant, J.B. and S.M. were also at the apartment when the complainant and her two friends arrived.
7B.G. left the apartment before 5:00 p.m. as she had a curfew. The complainant, K.C., J.P., the appellant and J.B. began to drink.
8K.C. testified that at one point during the evening, she, J.P. and the complainant were together in the apartment bathroom. J.P. asked whether either of the others would “like to have a threesome with me and [the appellant]”. Both the complainant and K.C. immediately declined the invitation.
9The complainant testified that, at one point after K.C.’s departure at about 10:00 p.m., the appellant asked if he could speak with her. He led her down the hallway towards the bedroom area. The two stopped outside of S.M.’s bedroom where the appellant began touching the complainant, called her a very pretty girl and told her that she had a nice body.
10The complainant did not respond to these comments. The next thing she remembered was being in the appellant’s bedroom sitting on the edge of the bed. The appellant asked if he could kiss her. She responded, “What do I want with an older man?”
11The appellant then pushed the complainant onto her back and began to unbutton her sweater as he kneeled on the bed. The complainant clutched her sweater closed and asked the appellant to stop. He told her to “just relax”. The appellant then removed the complainant’s pants and underwear. When he inserted his fingers into her vagina, the complainant grabbed his wrist and tried to push him away. The appellant removed his hand.
12According to the complainant, the appellant then took his pants off and climbed on top of her. He penetrated her vagina with his penis and had forced sexual intercourse with her for approximately 15 minutes, during which time he continued to tell her to relax. After 15 minutes, the appellant stood up, put his pants back on, and left the room.
13The complainant then got dressed and returned to the living room where she found the appellant seated with J.P. and J.B. No one reacted to her absence.
14The complainant testified that half an hour later, the appellant and J.P. went to bed. Her evidence was that she slept on the couch in the living room, while J.B. slept on the loveseat.
15The complainant left the apartment the next afternoon. She disclosed the assault to her guidance counsellor a short time later.
III. THE TRIAL DECISION
16The trial judge, noting that the appellant flatly denied having any sexual contact with the complainant, identified the issue at trial as “either he did it or he didn’t do it”, explaining that “all other issues”, such as consent, “are not in question.”
17Considering first the defence evidence, the trial judge found that the testimony of each of the defence witnesses – the appellant and J.B. – was not credible.
18Beginning with the appellant, the trial judge noted his lengthy criminal record that, while comprised predominantly of drug offences, also included crimes of dishonesty.
19In his rejection of the appellant’s testimony, the trial judge appears to have attached particular importance to an exchange between the appellant and Crown counsel during cross-examination, an exchange that the trial judge found to have constituted an attempt by the appellant to mislead the court:
A large part of [the appellant]’s evidence was for the purpose of convincing the court that he had no interest in [the complainant] as a sexual partner. In cross-examination in response to a question of whether he found [the complainant] attractive he responded, “Are you aware that I have a 19-year old daughter?” implying that he was somewhat insulted by such a suggestion that he would be sexually attracted to a 15-year old girl, a teenager. Later, following further cross-examination, he reluctantly agreed that he was attracted to younger women. This testimony was extremely troubling to me. When put in the context of the evidence of [K.C.] about the suggestion of a ménage trois to which evidence she was not cross-examined on, the lack of interest particularly by [J.P.] later on during and following the alleged sexual assault becomes more plausible.
Under the circumstances, I did not find [the appellant] very helpful except to say his aforementioned attempt to mislead the court did not assist his position.
20J.B. gave evidence about certain peripheral matters such as where he slept that night. His evidence contradicted that of the complainant, particularly as to who slept where.
21The trial judge did not accept J.B.’s evidence, noting his extensive criminal record for acts of dishonesty and his consumption of drugs and alcohol, both on the night in question and “during the course of his adult life”. He commented on J.B.’s “propensity to disregard the rule of law” and concluded that his evidence was “less than convincing in nature.”
22Despite inconsistencies and contradictions in her testimony, the trial judge found the complainant credible on “the central issue in this trial.” The trial judge was not troubled by her behaviour following the alleged attack; describing her actions as “unusual” but “believable”. The trial judge also found that K.C.’s evidence corroborated that of the complainant, observing that there was no suggestion of collusion between the two.
23With reference to R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, and D.W. v. The Queen, the trial judge instructed himself at some length on the concept of reasonable doubt. He then indicated that he had followed the direction contained in these cases and had considered all of the evidence in the context of the evidence as a whole.
24After his summary of the evidence and assessment of credibility, the trial judge briefly concluded his analysis as follows: “Applying the third branch of D.W. v. The Queen, based on the evidence that I do accept, I am convinced beyond a reasonable doubt of the guilt of the defendant.”
IV. ISSUES
25The appellant raises the following issues on appeal:
Did the trial judge err in relying on hearsay evidence that the appellant was interested in a “threesome”?
Did the trial judge err in permitting the Crown’s cross-examination of the appellant concerning whether he found the complainant attractive?
Did the trial judge err in his application of the principles set out in D.W. v. The Queen?
26There is also the issue regarding the admissibility of the fresh evidence. I will deal with this issue first.
V. ANALYSIS
A. Fresh Evidence Application
27Section 683(1) of the Criminal Code allows an appellate court to receive evidence on appeal “where it considers it in the interests of justice”.
28The factors to be considered in exercising the discretion to receive fresh evidence have been set out in a long line of cases, most notably the often cited Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. Recently, this court, in R. v. Snyder, 2011 ONCA 4561, identified three questions as relevant in deciding whether to exercise the discretion:
- Is the evidence admissible under the operative rules of evidence?
- Is the evidence sufficiently cogent that it could reasonably be expected to have affected the verdict?
- What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence?
29The appellant’s proposed fresh evidence includes a summary of a statement that K.C. provided to the police after the trial had concluded and a summary of a statement that the complainant gave to the police in response to K.C.’s statement. Both statements focus on the complainant’s sexual interaction with S.M.
30K.C. provided her statement to the police after the trial was completed. The summary indicates that, according to K.C., the complainant told her that she had had sex with S.M. on the night of the alleged incident. The complainant, in her statement, denied K.C.’s allegation. She told the police that she had neither had sex with S.M. on the night in question, nor told K.C. that she had done so. The summary indicates that the complainant told the police that she did mention to K.C. that she slept with S.M. at a party, but that the encounter had taken place long before the night of the alleged assault.
31The Crown’s proposed fresh evidence is intended to be in response to that put forward on behalf of the appellant, if it is admitted. The Crown has tendered the affidavit of Gail Tanner, an assistant in the Belleville Crown Attorney’s Office. Ms. Tanner attests to the fact that prior to the trial, the appellant’s trial counsel was provided with disclosure of a synopsis of a police interview with S.M. in which S.M. indicates that the complainant slept in his bed on the night in question and that they had a “sexual moment.”
32S.M. did not testify at trial. J.B.’s evidence at trial was that the complainant and S.M. slept in the same bed on the night in question.
33The appellant’s argument that K.C.’s evidence should be accepted hinges on two aspects of the complainant’s trial evidence. First, she testified that she and S.M. were only casual friends. Second, in her evidence, the complainant made no mention of having had any sexual contact with S.M. on the night in question.
34In my view, what the appellant’s girlfriend told K.C. is inadmissible; it is hearsay that does not fall within any exception and could not meet the conditions for admissibility under the principled approach. This court’s power to admit fresh evidence does not permit it to dispense with the hearsay rule: R. v. O’Brien, 1977 CanLII 168 (SCC), [1978] 1 S.C.R. 591, at p. 602.
35As to K.C.’s other evidence, it cannot meet the test for fresh evidence.
36I will start with the third criterion set out in Snyder, commonly thought of as the due diligence obligation. While this criterion will not be strictly applied in criminal cases, (Palmer v. The Queen, at pp. 775-776) it is a factor to be considered and, in this case, is an important factor. As a result of the disclosure, the appellant was in possession of evidence suggesting that the complainant had slept in S.M.’s bed on the night of the alleged sexual assault and that they had had some type of sexual contact. There is nothing in the material to explain why the evidence was not called or to rebut the inference that this was a tactical decision.
37I now turn to the second criterion – cogency. In my view, the evidence does not bear on a potentially decisive issue in the trial. The evidence supports the conclusion that the complainant and S.M. had had a relationship of some sort at some time. They may have slept together. However, this fact is not relevant to the resolution of the issue of whether the appellant sexually assaulted the complainant. Moreover, K.C. does not actually say that the complainant admitted to her that she slept with S.M. the night of the assault. That link comes only from the hearsay statement from J.P. and the statement from S.M., which was already in the appellant’s hands at the time of trial.
38The proposed evidence, while vague and somewhat confusing is credible, in the sense that it is likely that K.C. is telling the truth about what she was told by the complainant and by J.P. However, the evidence could not reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. K.C.’s proposed evidence does not undermine the complainant’s credibility. K.C. does not say that the complainant told her she did sleep with S.M. the night of the incident; only that she did so at some earlier time, a matter not denied by the complainant.
39There is one further problem with the evidence; it is questionable whether cross-examination of the complainant about her relationship with S.M. could have been permitted at trial in view of s. 276 of the Criminal Code. However, I need not resolve that issue, since the evidence otherwise fails to meet the Palmer test for admission of fresh evidence.
40As I have said, I would not admit the proposed fresh evidence.
B. Main Grounds of Appeal
1. The Hearsay Evidence
41The appellant challenges the trial judge’s use of the following evidence given by K.C. during her examination-in-chief about the appellant’s girlfriend J.P.’s having proposed a threesome with the appellant on the night in question:
Well girls naturally, when we’re together, we’ll go to the bathroom together. All three of us went into the bathroom, and [J.P.] said, “Would either of you like to have a threesome with me and [the appellant]?” Right away I said no. Right away.
42The appellant argues that the trial judge improperly relied on J.P.’s threesome suggestion in order to draw an inference about the appellant’s state of mind – that the appellant was attracted to or had a sexual interest in the complainant or at least in younger women in general.
43In support of his argument, the appellant points to where this passage appears in the reasons. It immediately follows a discussion about evidence of the appellant’s attraction to young girls and precedes the trial judge’s conclusion that the appellant is not credible. However, this placement, without more, is not a sufficient reason to conclude that the trial judge used the evidence as proof of the appellant’s attraction to the complainant.
44I agree with the appellant that it would have been improper for the trial judge to use the evidence about the proposed threesome to draw any conclusion about the appellant’s state of mind. The evidence is to the effect that J.P. suggested a threesome. Her proposal indicated nothing about the appellant’s state of mind. It did not even give rise to a permissible inference that the appellant knew about the proposal, let alone supported it.
45However, I see nothing in the reasons that indicates that the trial judge used it for this improper purpose. In his reasons, the only reference the trial judge makes to this evidence is the following portion of the quotation set out in para. 21 above, repeated here for ease of reference:
When put in the context of the evidence of [K.C.] about the suggestion of a ménage trois to which evidence she was not cross-examined on, the lack of interest particularly by [J.P.] later on during and following the alleged sexual assault becomes more plausible.
46As a secondary argument, the appellant suggests that the trial judge improperly used this evidence to find that J.P. was not opposed to a sexual encounter between the appellant and the complainant and that this lack of concern bolstered the credibility of the complainant’s evidence that when she returned to the living room after the appellant had had sex with her, J.P. did not react.
47In my view that is precisely how the trial judge used the evidence. He used it to provide context to J.P.s conduct, conduct that may be considered consistent with her disinterest in a sexual encounter involving the appellant and the complainant.
48In my view, there is nothing objectionable about this use of the evidence. The evidence was available to the trial judge to support an inference as to J.P.’s state of mind; a use specifically endorsed by this court in R. v. Candir (2009), 2009 ONCA 915, 257 O.A.C. 119 (C.A.), at para. 56, where Watt J.A. explains as follows:
The prosecutor may tender explicit statements of the declarant’s state of mind or statements that give rise to an inference about the declarant’s state of mind. The former are hearsay and require an exception to establish their admissibility. The latter are not hearsay and are admitted as circumstantial evidence from which the declarant’s state of mind may be inferred: P.(R.) at 341. Whether admitted by exception or as beyond the exclusionary reach of the hearsay rule, the statements should be contemporaneous with the state of mind of which they are evidence. [Emphasis added.]
49Similarly, at para. 16 of R. v. P.(R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.J.), on which Watt J.A. relied, Doherty J. explained that:
Assuming relevance, evidence of utterances made by a deceased (although the rule is not limited to deceased persons) which evidence her state of mind are admissible. If the statements are explicit statements of a state of mind, they are admitted as exceptions to the hearsay rule. If those statements permit an inference as to the speaker’s state of mind, they are regarded as original testimonial evidence and admitted as circumstantial evidence from which a state of mind can be inferred. The result is the same whichever route is taken, although circumstantial evidence of a state of mind poses added problems arising out of the inference drawing process.
50Based on the reasoning in these two cases, K.C.’s evidence was admissible for the purpose for which it was used by the trial judge – to support an inference concerning J.P.’s state of mind. In other words, it was evidence relevant to the trial judge’s assessment of the complainant’s description of what transpired, or more accurately, what did not transpire, when she returned to the living room having been in the bedroom area, with the appellant, for a period of time. Because the statement was not an explicit statement of J.P.’s state of mind, but rather merely supported an inference as to her state of mind, it does not violate the hearsay rule.
2. The Appellant’s Out-of-Court Statement
51The appellant submits that the trial judge erred in admitting, and then relying on, evidence that was elicited in response to Crown counsel’s cross-examination of him concerning whether he found the complainant attractive. The appellant argues that this line of questioning was not probative of any material issue; therefore questions relating to it were improper and evidence elicited in response to the questioning should not have been available to the trial judge.
52The appellant contends that the trial judge’s error in this regard is particularly serious in the light of his heavy reliance on the appellant’s evidence in this area in concluding that the appellant’s denial of a sexual encounter with the complainant was not credible. As previously indicated, the trial judge’s reasons indicate that he found this aspect of the appellant’s testimony “extremely troubling” and concluded that it amounted to an attempt to mislead the court.
53In R. v. M.F. (2009), 2009 ONCA 617, 253 O.A.C. 12, at paras. 19-25, Simmons J.A. considered whether a trial judge had erred in finding an accused not credible in part because of his difficulty in answering questions about whether he found his nieces, whom he was accused of sexually assaulting, attractive:
There are at least two problems with the line of questions relating to whether the appellant found his nieces to be attractive. Because of these problems, the questions were unfair to the appellant and the trial judge should not have relied upon the appellant’s difficulty in answering these questions in assessing his credibility.
First, the questions are ambiguous. It is unclear from the questions whether the Crown was using the term “attractive” to mean ‘pretty’ or ‘sexually attractive’. In the context of a trial involving allegations of sexual misconduct, such ambiguity is extremely unfair to an accused person.
Second, whatever their meaning, the questions are essentially irrelevant. On one reading of the line of questions, they were directed at determining whether the appellant considered his nieces to be pretty. Such a line of questioning would appear to be premised on a stereotypical assumption that only pretty females are sexually assaulted. There is no empirical support for such an assumption and questions about whether the appellant considered his nieces pretty were therefore wholly irrelevant to the issues at the trial.
On another reading of this line of questions, they were directed at determining if the appellant found his nieces sexually attractive. Except perhaps in circumstances where a particular crime involves sexually deviant behavior, e.g. paedophilia, the fact that one person finds another sexually attractive, does not make it more likely that the first person sexually assaulted the second person. Even if such questions might be viewed as being marginally relevant, the risk of attributing undue weight to a positive answer should, in most circumstances, mandate their exclusion.
54I agree that whether the appellant found the complainant attractive is not relevant to the issues before the trial judge. However, as will be seen from the analysis that follows, even though at first blush it may appear that based on the reasoning in M.F., the Crown was permitted to embark upon a prohibited line of questioning, on closer examination this case is distinguishable from M.F. in that here there was a legitimate basis for the impugned questioning.
55The distinction has to do with evidence in this case that forms a foundation for the Crown’s cross-examination about whether the appellant found the complainant attractive, evidence that was not part of the record in M.F.
56The evidence I refer to is that of the complainant who, as previously mentioned, testified that once in the hall, the appellant started to touch her, called her a very pretty girl and told her that she had a very nice body. The next thing she remembered was being in the appellant’s bedroom sitting on the edge of the bed as the assault began to escalate.
57The appellant’s statement that he found the complainant a very pretty girl and that she had a very nice body, was admissible. The statement was part of the narrative; it was the beginning of the unfolding of the events that led directly to the sexual assault. The admissibility of the statement does not attract a hearsay problem; as an admission by the appellant, it was admissible for its truth as an exception to the hearsay rule.
58In M.F. there was no statement by the accused, in the course of the sexual assaults, indicating that he found the victims attractive. The problem there was with the cross-examination. The accused was asked to respond to an ambiguous question and the questioning was aimed at eliciting answers that could be relevant only if “the stereotypical assumption” that only pretty females are sexually assaulted is also accepted. This problem does not arise in this case.
59This brings me to the key issue – whether in cross-examination in this case, the Crown was entitled to ask the appellant the following questions:
Q. I suggest to you that you were feeling the effects of those substances, uh, in quite a strong way that night, before you went to bed, and certainly by 11 p.m. that night. You’re shaking your head.
A. Yeah, I .. – if you’re getting to the point where I was drunk and had to go to bed, you’re wrong.
Q. No, I’m suggesting that you were, uh .. – your judgment was significantly impaired?
A. My judgment for what?
Q. Well...
A. My ability to drive might be impaired.
Q. ...for one thing I’m going to suggest, uh, in a short while that you took a shining to [the complainant] and found her attractive that night, right?
A. Are you aware that I have a 19-year old daughter? Four daughters?
Q. I am, given your evidence, but I’m also aware that you have a 17-year old girlfriend.
A. That’s correct.
Q. Right. And I’m suggesting to you that you found [the complainant] attractive that night.
A. A 37-year old man, I find a 15-year old girl attractive?
Q. That’s what I’m suggesting to you.
A. Well I suggest you’re wrong.
60Crown counsel used the appellant’s answer to engage in a protracted examination of the appellant’s relationship with his 17-year-old girlfriend ending with this question and answer:
Q. So you’re not here to suggest to the court that … that because you’re … because someone is 19, that’s too young for you to be attracted to, are you?
A. No.
61The questions and answers to which the appellant objects, must be put in context. As the trial progressed, Crown counsel developed the theory that because the appellant was impaired by drugs and alcohol he started to find the complainant attractive and he knew that because everyone else in the apartment was intoxicated he could “make a physical move, a sexual move on [the complainant]”. In the course of developing this theory, he directly put to the appellant what he had said to the complainant:
Q. I suggest that you made it known to [the complainant] that you thought she was attractive by telling her that she’s got a nice body and that she’s a pretty girl.
A. That’s not true either. I never had no conversation with [the complainant].
62In my view, the cross-examination was not improper. I have already explained why the initial evidence from the complainant was admissible. For similar reasons, the cross-examination does not run afoul of the holding in M.F. In the context of this case, the question was not ambiguous; the question was directed at whether the appellant considered the complainant sexually attractive. The question was rooted in the chain of events testified to by the complainant. Similarly, in the unusual circumstances of this case, it does not run afoul of the problem identified in M.F.; the impermissible resort to stereotypical reasoning described by Simmons J.A. in the passage set out above.
63Crown counsel’s question was not premised on a stereotypical assumption; but rather was anchored in the complainant’s description of the narrative giving rise to the sexual assault. Crown counsel could have begun his cross-examination of the appellant by first asking him whether he told the complainant that she was pretty. But if he denied it, which he was bound to do, since he claimed that he was never alone with the complainant, Crown counsel would have been entitled to test the assertion. The fact that Crown counsel did not ask the questions in any particular order did not make the question improper.
64Thereafter, however, the appellant, instead of answering the question, put his character in issue. He clearly asserted by reference to the age of one of his daughters, that he was not the type of person who would have sexual relations with a young girl. Crown counsel was also entitled to test the truth of this assertion. The cross-examination falls within this court’s holding in R. v. McNamara (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193, at pp. 348-50:
Mr. Robinette also argued that character means general reputation and that the accused can only put his character in issue by adducing evidence of general reputation. With respect, we do not agree. The common law rule was that evidence of good character could only be given by evidence of reputation, and could only be rebutted by evidence of reputation and not by specific acts of bad conduct: R. v. Rowton (1865), Le & Ca. 520, 169 E.R. 1497. That rule was, however, established at a time when the accused could not himself give evidence. A long series of cases in England (two of which were cited with approval in Morris v. The Queen, supra) have held that an accused may put his character in issue by testifying as to his good character. The word “character” in the Criminal Evidence Act, 1898 has uniformly been held to mean not only reputation, but actual moral disposition: Cross on Evidence, 4th ed. (1974), p. 426; Phipson on Evidence, 12th ed. (1976), p. 218. It is true that when the accused wishes to adduce extrinsic evidence of good character by calling witnesses, such evidence is confined to evidence of general reputation, but that has no application where the accused himself gives the evidence.
It was also contended on behalf of the appellant that where evidence of good character, in whatever form, is introduced by the prisoner (whether it be extrinsic evidence or by his own testimony) it cannot be rebutted by evidence of specific acts of bad conduct: rather, the Crown is confined to rebutting the evidence of good character by evidence of general reputation or by proof of a previous conviction pursuant to s. 593 of the Criminal Code. Counsel for the appellant argued that the provisions in s. 593 constitute the only exception to the common law rule that evidence of good character can only be rebutted by evidence of bad reputation. There is at least one additional exception, namely, the Crown may adduce similar fact evidence in rebuttal of evidence of good character. In Guay v. The Queen (1978), 1978 CanLII 148 (SCC), 42 C.C.C. (2d) 536, 89 D.L.R. (3d) 532, [1979] 1 S.C.R. 18, Pigeon J., delivering the judgment of the Supreme Court of Canada, said at p. 547:
On the admissibility of similar fact evidence, I think it should be said that it is essentially in the discretion of the trial Judge. In exercising this discretion, he must have regard to the general principles established by the cases. There is no closed list of the sort of cases where such evidence is admissible. It is, however, well established that it may be admitted to rebut a defence of legitimate association for honest purposes, as well as to rebut evidence of good character. Where the evidence is admissible on the first mentioned basis, it may be admitted as part of the case for the prosecution.
Whatever the limitations may be on the use of extrinsic evidence (i.e., evidence of other witnesses) to rebut evidence of good character, we are satisfied that those limitations did not preclude the cross-examination of the appellant with respect to the Marine Building transaction. It is not necessary to decide the difficult question whether an accused who testifies to his good character (moral disposition) for honesty, thereby lays himself open to be cross-examined on every phase of his character, such as, for example, his sexual morality, nor to consider the extent of the Judge's discretion where the alleged bad conduct has not resulted in a conviction. Here the appellant had asserted a good disposition in relation to honesty and integrity. The cross-examination on the Marine Building transaction related to that particular moral disposition and was highly relevant to rebut the appellant's assertion of good character.
The learned trial Judge also permitted the cross-examination of the appellant with respect to the Marine Building transaction because it was directly relevant to show that the appellant had lied in examination-in-chief. Mr. Robinette forcefully argued that the cross-examination could not be justified on the ground that it directly proved that the appellant had lied in his examination-in-chief, since the appellant had not testified about the Marine Building transaction in chief and hence the cross-examination could not prove that anything the appellant said in his examination-in-chief was false. We are disposed to think that, but for the fact that the accused had put his character in issue by testifying that he conducted his business affairs in an ethical manner, the cross-examination would not have been admissible on the ground that it showed directly that the appellant had lied. Where, however, an accused puts his character in issue, thereby opening the door to cross-examination on his past conduct, the proof of the previous bad conduct may have a double effect: it not only rebuts his claim to a good character, but it directly proves that he lied in the witness-box if he has impliedly asserted that he is a law-abiding citizen. For example, if an accused puts his character in issue by saying: “I have been honestly employed all my life”, and the prosecution proves that he has knowingly been engaged in unlawful activities, the prosecution has not only rebutted his evidence of good character, but at the same time has proved that he lied. [Emphasis added.]
65In this case, by his answer to Crown counsel’s question, the appellant put his sexual morality in issue. He asserted that he was not the type of person who would have sexual relations with teenage girls. It was open to Crown counsel to cross-examine the appellant on this assertion of good character generally and to prove the particular assertion about attraction to young girls was untrue. Crown counsel did so by the simple device of showing that the appellant had apparently become sexually attracted to a 17-year-old who, within 10 days, was living with him as his girlfriend and continued to live with him at the time he allegedly sexually assaulted the 15-year-old complainant. The cross-examination had the double effect referred to in McNamara. It rebutted his assertion of good character and showed that the appellant had lied about his lack of sexual attraction to teenage girls.
66For these reasons, I am of the view that the evidence of what the appellant told the complainant was properly admitted as part of the events leading up to the sexual assault. I am also satisfied that Crown counsel’s cross-examination of the appellant on that evidence was proper. Since the evidence was properly admitted, it was open to the trial judge to use evidence of the appellant’s character, which he gratuitously put in issue, as he did.
67I would therefore reject this ground of appeal.
3. W.D. Principles
68The trial judge, in some detail, instructed himself on the burden and standard of proof applicable in criminal cases. He explained:
I specifically instructed myself of the burden upon the Crown to prove the existence beyond a reasonable doubt of all the essential elements of the offence…. It was either he did it or he didn’t do it and that was the issue that remains before the court. All other issues are not in question.
69The trial judge then discussed at some length the principles arising from R. v. Lifchus, R. v. Starr, and, significantly, D.W. v. The Queen, all of which elaborate upon the concept of reasonable doubt and address the manner in which it should be explained to juries. He specifically quoted the following passage at pp. 757-758 of D.W.:
A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused obviously you must acquit. Second, if you do not believe the testimony of the accused, but you are left in a reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
70The appellant submits that while the trial judge correctly set out the principles in respect to D.W., he failed to apply them. The appellant argues that it is not clear from his reasons that the trial judge, upon concluding that he did not believe the evidence of the appellant, considered whether this evidence nevertheless raised a reasonable doubt as to his guilt.
71I agree with the Crown that the reasons do not support the conclusion that the trial judge erred in his application of the D.W. principles. As indicated, it is clear that the trial judge was aware of and understood the requirements associated with his approach to the evidence in a case that was essentially a “he said, she said”.
72Having indicated that he had considered the appellant’s evidence in the context of the evidence as a whole, and having explained that he was convinced beyond a reasonable doubt of the guilt of the accused, there was no need for the trial judge to go on to explain that the evidence that he did not believe also did not raise a reasonable doubt. According to R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, the D.W. test should not be treated as a “magic incantation”. A decision should not be interfered with on this basis where, as here, the reasons contain the core of the instruction and indicate that the correct burden and standard of proof were applied.
73I would therefore not interfere with the trial judge’s decision based on his treatment of the D.W. analysis.
DISPOSITION
74For these reasons, I would dismiss the appeal.
RELEASED:
“JUL 12 2011” “Gloria Epstein J.A.”
“JL” “I agree John Laskin J.A.”
“I agree M. Rosenberg J.A.”