COURT OF APPEAL FOR ONTARIO
Weiler, Watt and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Seebastian Hariraj and Jonathan Guarino
Appellants
Carolyne Kerr, for the appellant, Seebastian Hariraj
Ilan J. Neuman, for the appellant, Jonathan Guarino
Jennifer Woollcombe, for the respondent
Heard: May 2, 2012
On appeal from the conviction entered on December 16, 2009 by Justice Margaret P. Eberhard of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
1The appellants were tried together. They were convicted of one count of unlawful confinement, using an imitation firearm in the commission of an offence and assault using an imitation firearm. In relation to their convictions, the appellants raised one common ground of appeal in which they alleged the Crown made improper comments to the jury during her closing address and the trial judge refused to declare a mistrial and did not give a limiting instruction. The Crown’s impugned submissions effectively invited the jury to make erroneous use of certain evidence. Accordingly, we agreed with defence counsel that the trial judge erred by not correcting the error in her charge. We therefore advised counsel that the appeal was allowed, the convictions set aside, and a new trial ordered with reasons to follow. These are those reasons.
BACKGROUND
2The main witness for the Crown at trial, was Dawn Lake. Lake’s evidence may be summarized as follows: She was at home with her husband, Malabre and her adult daughter on the evening of January 14, 2009. At around 10:00 p.m., the two appellants and a third individual came to the home and argued with Malabre. She believed the argument was about money her husband was said to have owed them. Guarino went through the house looking for money. Finding none, the three men left and said they would be back. Lake was not part of this discussion. She came downstairs when she heard arguing. Police were not called in relation to this incident.
3The next evening around 8:00 p.m., Lake was home alone. She answered a knock at the door to find Guarino and the third man. They asked for her husband. She told them he was not home but they walked past her and entered the residence. Shortly after closing the door there was another knock. Lake opened it to find Hariraj whom she told to come in. Hariraj entered and pushed her against a wall, he pointed a gun (that he claimed was real) at her chest and face, threatened her, and ordered her upstairs. Hariraj and Guarino demanded their money and threatened Lake and her family. They forced her to call her husband but told her not to tell him they were there. Malabre was waiting for a ride back to Barrie. At this point, Lake felt that she could not leave the room or the house because of the positioning of the three men. Hariraj became frustrated and told her they would be coming back every day. All three subsequently left. Lake did not report the incident to police, though she did tell her daughter and husband about it.
4The next day, Lake received a call at work from police asking her to come home. Based on what she had told her husband, he had gone and reported a robbery to police. She arrived home and proceeded to the police station to provide a statement.
5Neither Malabre or Lake’s daughter testified at trial.
6Guarino did not testify. Hariraj testified in his own defence. His version of events was that he accompanied Guarino to Lake’s home on January 14, 2009. The purpose of the trip was so Guarino could speak to Malabre about some money he “had borrowed from him”. Malabre opened the door and invited the two men inside. He wanted his money back. Guarino told him he couldn’t pay and an argument ensued. At one point Malabre walked toward Guarino with his hands out and Guarino pushed him away. The appellants were at the home for about 15 minutes and left without resolving the issue of the loan. Hariraj said that he did not return to the house the next night. He denied ever owning, holding or seeing a gun and denied threatening Lake.
7Though Lake was cross-examined by counsel for both appellants, neither lawyer cross-examined her on the contents of her statement to police or her evidence at the preliminary hearing.
THE CROWN’S ADDRESS TO THE JURY
8During the course of her address to the jury, the Crown stated:
Now, I anticipate that Her Honour will instruct you on how to assess a witness’ credibility. She may explain to you that one way to assess a witness’ credibility is to see if there are any inconsistencies between what a witness said at trial and what a witness said on an earlier occasion, or even any inconsistency within their statement or within their trial testimony.
In this case, you hear Mrs. Lake testify at trial. The Crown submits that her testimony before you, which covered two nights, a number of different people, different places in the house, that her testimony was very detailed. And, in fact, just a summary, the overview that I read to you was fairly lengthy and detailed. She provided those detailed descriptions of where people were, what they said, what they did, what they said next, what they did next, covering those two evenings. You also heard that Mrs. Lake provided a sworn statement to the police. And you heard that she was subpoenaed to the preliminary inqujiry in this matter.
Now, I don’t recall any evidence that Mrs. Lake made any mistakes within her statement to the police. That was never pointed out to her or she was never cross-examined on that by the defence lawyers. I don’t recall either defence lawyer suggesting to Mrs. Lake that she said something different in her statement than she did at trial. Consider that. She provided detailed testimony at trial covering the events of two separate dates and she’s cross-examined by two defence lawyers and they can’t point to any mistakes, anything that she might have said differently on an earlier occasion, any inconsistencies. Can you imagine trying to make up a story like hers and provide a sworn statement to the police and testify in such detail and not get tripped up by not one buy two defence lawyers? And she was thoroughly cross-examined. What I’m getting at is inconsistencies. No evidence that she said something different on an earlier occasion. Certainly, we’ve had lots of cross-examination and lots of suggestions about what she might be lying – sorry – suggestion that she might be lying or why she might be lying, and I will come to that soon, but no inconsistencies.
And the Crown suggests to you that the only way that she’s able to testify in such detail without any inconsistencies is because she’s telling the truth. She’s telling you what she actually remembers from those two nights. And because she’s telling you what she actually remembers, she’s able to get those details right. This is very important for you to consider in your review of her testimony. [Emphasis added.]
9Following the Crown’s address, defence counsel moved for a mistrial. They argued that the Crown suggested to the jury that Lake’s two prior statements, which were not in evidence, were consistent statements and that the effect of the Crown’s comments was oath helping.
10Without hearing from the Crown, the trial judge ruled as follows:
I thought it was interesting because you never never hear it because there are never situations where the principal Crown witness is not examined on prior inconsistent statements. So I listened with some interest for any inaccuracy in what the Crown was putting before the jury. There was no inaccuracy in asserting that she made a statement to police because there was lots of evidence that she went down to the police, and that was mentioned several times, and that she gave her statement and was out and gone.
Then it was mentioned in evidence that there was a preliminary hearing. And then all she said is no inconsistencies were drawn out. She did not say there were no inconsistencies. She said that you did not draw any inconsistencies out of it.
ANALYSIS
Did the trial judge err in failing to declare a mistrial or provide a correcting instruction with respect to the Crown’s comments about Lake’s consistency?
11On appeal, the respondent submits that the impugned passage in the Crown’s summation was in response to the defence submission that, having gone to the police, Lake had no choice but to keep on repeating her story. The Crown was simply responding and expressing the opinion that Lake’s evidence given at the preliminary inquiry and in her statement to the police were not inconsistent with her evidence at trial. The trial judge’s ruling was correct.
12We disagree with this submission. The trial judge failed to recognize that the Crown went beyond telling the jury that Lake’s previous statements, which were not in evidence, were not inconsistent with her evidence at trial. The conclusion urged by the Crown, that Ms. Lake was telling the truth because no inconsistencies were drawn out of her prior statements, is the exact conclusion against which the rule precluding the use of prior consistent statements seeks to protect. The jurisprudence has consistently recognized that there is no probative value (with certain exceptions that are not at play here), in the existence of prior consistent statements.
13The respondent submits some significance should be attached to the fact that, after the request for a mistrial was refused, defence counsel did not request a limiting instruction. In our opinion, the trial judge’s ruling made such a request pointless. In any event, the failure to object is not fatal to raising the ground on appeal.
14The respondent’s main submission is that there was no need to tell the jury anything about Lake’s statements as there was no risk they would use them to bolster her credibility. In support of the submission the Crown relies on the inclusion in the charge of the instruction respecting Hariraj’s statement to the police as follows:
Statements of an accused person may be received into evidence for your consideration. You are aware from the evidence that Mr. Hariraj made a statement to police denying his involvement in any event on Thursday night. And this is consistent with his testimony at trial. Prior consistent statements are not normally admitted into evidence. That goes for all witnesses because consistent statements are redundant unless there is a question of recent concoction which the Crown is not suggesting in this case…
15The Crown also relied on the following directions given to the jury:
To consider all the evidence in reaching a verdict. Evidence includes what each witness said in answering questions
Some things are not evidence including what counsel said when they spoke and any comments of counsel that amounted to expressions of their own conclusions about credibility or reliability of witnesses
In determining credibility and reliability, they could consider whether a witness’s testimony seemed reasonable and consistent as he or she gave it, whether it is similar or different to what other witnesses said about the same events and whether the witnesses said or did something different on an earlier occasion
16In our opinion, these instructions were not sufficient to alert the jury to the danger of misusing Lake’s prior statements to bolster her credibility at trial. The case for the Crown was not an overwhelming one. It depended substantially on the jury’s acceptance of the evidence of Lake. We cannot say that the verdict of the jury would necessarily have been the same in the absence of a correcting instruction. It was incumbent on the trial judge to specifically tell the jury that they could not use the omission of defence counsel to cross-examine Lake on her evidence given at the preliminary inquiry and in her statement to the police in the manner suggested by the Crown, namely, as proof that she was telling the truth.
CONCLUSION
17Accordingly, the appeal is allowed, the convictions are set aside and a new trial is ordered.
“K.M. Weiler J.A.”
“David Watt J.A.”
“G.J. Epstein J.A.”