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(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486(1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.
(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.
(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and
(b) justice system participants who are involved in the proceedings are protected.
(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).
COURT OF APPEAL FOR ONTARIO
MacPherson, LaForme and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
D. B. (aka D. W. P. M.)
Appellant
Clayton C. Ruby and Nader R. Hasan, for the appellant
Shawn Porter, for the respondent
Heard: February 26, 2013
On appeal from the conviction entered on October 19, 2007 and from the sentence imposed on November 20, 2009 by Justice George T. Valin of the Superior Court of Justice.
A. OVERVIEW
1The appellant was convicted of sexual assault after having been found guilty of touching the complainant on her thigh (over her clothes) and chest (under her clothes). As a result of that conviction and prior convictions in 1999, he was designated a long-term offender and is now subject to a long-term supervision order of eight years. He appeals his conviction for sexual assault and his designation as a long-term offender. He does not appeal his sentence of 30 months, having already completed that sentence.
2The appellant advances two grounds of appeal against conviction. Firstly, he argues that the trial judge erred by basing the verdict on hearsay evidence. Secondly, he submits that the verdict was unreasonable because the trial judge convicted him on the basis of the complainant’s evidence standing alone even though he had concluded that it would be dangerous to do so. On appeal, he abandoned his argument that the trial judge erred by failing to consider the defence’s submission that the complainant’s testimony was fabricated.
3The appellant advances two grounds of appeal against his long-term offender designation. Firstly, he argues that the trial judge erred in ordering that the appellant be assessed pursuant to s. 752.1 of the Criminal Code, R.S.C. 1985, c. C-46, for the purposes of a long-term or dangerous offender designation. Secondly, he submits that the long-term offender designation was unreasonable because two years was an inappropriate sentence for the predicate offence.
4For the reasons that follow, I would allow the appeal against conviction, set aside the verdict of guilty and order a new trial. As a result, there is no need to address the sentence appeal.
B. EVIDENCE RELATING TO THE CONVICTION
5The Crown’s evidence consisted primarily of the testimony of the complainant and her mother. The defence did not call any evidence.
6As found by the trial judge, the complainant was a 20-year-old drug addict with a young son. She had been addicted to drugs for about three years. She sometimes lived with her parents and sometimes lived on the streets.
7The complainant’s mother testified that on the afternoon of February 21, 2007, the appellant arrived at her house along with her daughter. He had driven her there. The complainant’s mother testified that she talked with the appellant while her daughter packed some of her clothes and some baby toys. She acknowledged that her daughter was under the influence of drugs at the time. She testified in chief that her daughter “was just in another world” and that it was like she “didn’t even notice me”. The complainant left in a vehicle driven by the appellant.
8The mother testified that at around 5:30 a.m. the next morning, she received a phone call from her daughter. The call was made on the appellant’s cell phone. Crown counsel elicited for narrative purposes what the complainant said to her during the call. The trial judge recounted the gist of the complainant’s conversation as follows:
She told her mother she was with the accused, that she did not know where she was, and that she wanted to come home. She sounded frightened. Her mother could hear her speaking with the accused, whose voice she recognized from having met him a few hours earlier. When the victim asked the accused where they were, the response her mother heard was evasive. The accused said he was taking her to see the stars. When the victim asked the accused to drive her home, her mother heard him say, “I am too busy right now.”
9The mother testified that during the conversation, her daughter said “he’s touching me and I’m scared”.
10The complainant’s mother estimated the call lasted at least 15 minutes. After the call ended, the complainant’s mother phoned 911.
11The complainant also testified. The trial had to be adjourned a day to permit her to do so because the Crown was concerned that she was under the influence of drugs.
12The trial judge summarized the complainant’s testimony as follows:
The victim testified that, after her funds ran out on February 21st, the accused had purchased drugs and alcohol for her.
Eventually, he drove her to a secluded place in the city. She was very high. She did not know where she was. It was dark. The accused would not tell her where she was. She was frightened. She called her mother on the accused’s cell phone and spoke to her for about 20 minutes.
During that time the accused touched her on her upper legs over top of her clothes and touched her breast underneath her clothes. She did not invite the accused to do that. She did not consent to him doing it. She was frightened by it and felt violated.
13The complainant testified in-chief that the appellant operated an unofficial taxi service. Late in the afternoon of February 21, 2007, a friend of hers arranged for the appellant to pick her up at a party. She was intoxicated and high on drugs. The appellant drove her to her parents’ home. She was planning to move out and so she packed some belongings for herself and her son.
14The complainant’s evidence was that she spent the evening of February 21 and the early morning of February 22 with the appellant, who drove her to various destinations to buy crack and cocaine for her. He also picked up whiskey from his mother’s house.
15The complainant went on to testify that the appellant drove her to an area where there were no roads. It was dark. She had the appellant’s cell phone and was talking to her mother. The appellant touched her on her upper leg, on top of her clothing, and on her chest, under her clothing. She told him to stop. She then got out of the vehicle and dropped the phone and told him she was walking. The appellant said he would drive her as it was too far to walk. She did not remember driving back into town. The appellant dropped her off at the home of her son’s uncle. When the complainant was asked in-chief how she was feeling towards the appellant, she responded: “violated”.
16In cross-examination, the complainant acknowledged that the drugs she was dependant on affected her memory. She further acknowledged that she did not have a clear recollection of the discussion on the cell phone with her mother. She indicated that she was on drugs and intoxicated, and was in and out of consciousness.
17The police arrived at the complainant’s uncle’s house early in the morning and arrested the complainant on a charge of breach of recognizance. At the time of the offence, the complainant had been released on a recognizance of bail that required her to live at her parents’ residence. She was taken to the police station.
18The complainant testified that, while at the station, the investigating police officer told her about how dangerous the appellant is and that he had almost killed another girl. She testified that the officer told her that she would not have to go to jail for the breach, that the appellant was dangerous, and that he could hurt some other little kids, and she was given “guilt trips all over”.
19In cross-examination, defence counsel elicited certain details from the complainant about her videotaped statement to the police. The Crown did not seek to enter the statement at the trial. The complainant acknowledged that during the police interview, she was emotional, crying, yelling and swearing. She explained she was coming down off drugs and “coming down from (unintelligible) doing something I didn’t want done.” She told the officer that she was on a combination of cocaine and morphine, which she had injected.
20The complainant acknowledged having told the officer that she did not want to talk about the events of the night. She agreed she tried to negotiate assurances from the officer that her mother was coming, that she would be released from custody, and that the police would assist her in finding a place to live in exchange for providing information to the officer.
21The complainant understood from the police officer that either the charge against her for breach of recognizance would not proceed, would be withdrawn, or she would be found not guilty. This did not materialize, however, as the complainant was required to remain in custody and was later found guilty on a charge of breach of recognizance.
C. TRIAL JUDGE’S REASONS FOR CONVICTION
22The trial judge noted that defence counsel had conceded that the conduct of the appellant, if proven beyond a reasonable doubt, constituted sexual assault. Defence counsel argued there was insufficient credible and reliable evidence to establish guilt beyond a reasonable doubt. Defence counsel further argued that the complainant’s evidence was neither credible nor reliable. In addition, the evidence of the complainant’s mother was unreliable because she did not see what was going on in the vehicle while she was speaking on the phone to her daughter.
23The trial judge noted that the complainant’s evidence of where, when, and how the appellant “touched her private areas inappropriately without her consent” was uncontradicted and was not successfully challenged on cross-examination. However, he concluded that it would be dangerous and unsafe to find the appellant guilty based on the complainant’s evidence standing alone, given her condition of intoxication, her generally poor memory of other events that occurred before and after the alleged assault, and her demeanour while being interviewed by the police.
24The trial judge went on to enumerate “other independent evidence that is capable of confirming the victim’s complaint regarding the sexual assault”:
The appellant’s cell phone records confirmed that a call was placed to the residence of the complainant’s parents at 6:10 a.m. on February 22, lasting over 20 minutes.
The police seized a purse and clothing belonging to the complainant from the appellant’s vehicle when he was arrested on February 23.
The complainant’s mother recognized the appellant’s voice during the telephone call.
In response to the question inquiring as to their location, the complainant’s mother heard the appellant say that he had taken the complainant out to see the stars. This was suspicious given it was 6:10 a.m. and considering that he had told her he was too busy to drive her home.
The complainant told her mother that the appellant was touching her and that she was scared.
25With respect to this last piece of evidence, the trial judge went on to state:
I find that the mother’s evidence is capable of confirming the victim’s allegations that the accused sexually assaulted her. No matter how one views her conduct at the police station while she was being interviewed by the police, it cannot be said that the victim fabricated her allegations about what the accused had done to her in his vehicle earlier that day.
26The trial judge concluded that the Crown had proven the appellant’s guilt beyond a reasonable doubt and found him guilty of sexual assault.
D. CONVICTION APPEAL
27There are two issues to consider on the conviction appeal. I will address each in turn.
(1) Did the trial judge err by basing the verdict on hearsay evidence?
(a) Positions of the Parties
28The appellant submits that the trial judge based the conviction on the inadmissible hearsay testimony of the complainant’s mother. The latter testified that her daughter had told her over the phone that the appellant had touched her. No argument was made about the admissibility of this statement at trial because the Crown sought to introduce the statement only for narrative purposes and did not seek to rely on it for the truth of its contents. Nonetheless, the trial judge improperly considered the statement for the truth of its contents and as corroborative of the complainant’s testimony, as reflected by his following statement:
Finally, the victim told her mother that the accused was touching her and that she was scared. I find that the mother’s evidence is capable of confirming the victim’s allegations that the accused sexually assaulted her.
29The respondent submits that the complainant’s prior statement to her mother was properly admitted and considered by the trial judge as part of the narrative and in rebuttal to an allegation by defence counsel of recent fabrication. The defence position at trial was that the complainant had made a false claim of sexual assault to obtain favourable treatment from the police. Evidence in support of this position was elicited in the cross-examination of the complainant. Defence counsel, in response to a question from the trial judge, agreed that the trial judge could consider the complainant’s previous statement in considering the defence submission that she had fabricated her allegation. When admitted to rebut an allegation of recent fabrication, a prior consistent statement has a positive effect on the assessment of a witness’s overall credibility. As such, the trial judge did not use the prior statement for an improper purpose.
(b) Analysis
30Prior consistent statements are declarations made by witnesses before they take the stand that are consistent with the testimony they give while on the stand: David M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (2013) 17 Can. Crim. L.R. 181, at p. 181.
31Prior consistent statements are generally inadmissible. Traditionally, they have been treated as inadmissible because they are out-of-court statements made in the absence of trial safeguards such as cross-examination and the taking of an oath or affirmation to tell the truth. The hearsay rule precludes the admission of prior consistent statements for the truth of their contents. Additionally, prior consistent statements lack probative value: see R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 10, at para. 5; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36. Put differently, repetition of a statement by the same person does not render it more likely to be true or corroborative. The repetition is self-serving and the source lacks independence. Lastly, given that the evidence will have already been adduced at trial through oral testimony, exclusion of prior consistent statements serves the desirable objective of trial efficiency.
32There are some exceptions to the rule that prior consistent statements are inadmissible. The exceptions exist because the purpose behind exclusion is not served. The two exceptions raised on this appeal are narrative and recent fabrication.
33Before the trial judge, defence counsel (who is not counsel on appeal) properly conceded that the complainant’s statement to her mother was admissible for narrative purposes, but contended that the statement could not be relied on for the truth of its contents. In closing submissions at trial, defence counsel accepted that although hearsay, the trial judge was entitled to consider the complainant’s prior statement to her mother, but argued that the trial judge could not use “the initial utterance on the telephone to bolster what is otherwise unreliable” because “the source is the same”.
34The statement was admissible both as narrative and to rebut the allegation of recent fabrication. As narrative, the statement is admitted as evidence of the fact that something was said or heard, but not tendered for the truth of what was said or heard: Dinardo, at para. 37, R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 99; R. v. Magloir, 2003 NSCA 74, 178 C.C.C. (3d) 310, at para. 23.
35In R. v. O’Connor (1995), 1995 CanLII 255 (ON CA), 25 O.R. (3d) 19 (C.A.), leave to appeal to S.C.C. refused, [1995] S.C.C.A. No. 460, Finlayson J.A. described the nature of an allegation of recent fabrication, at pp. 28-29:
[A]n allegation of recent fabrication is no more than an allegation that the complainant has made up a false story to meet the exigencies of the case. The word “recent” means that the complainant’s evidence has been invented or fabricated after the events in question and thus is a “recent” invention or fabrication. [Citation omitted.]
36Where there is an allegation of recent fabrication in connection with a witness, a prior consistent statement is admissible to demonstrate that the witness’s story was the same prior to the alleged fabrication. An allegation of recent fabrication may be either express or implied to permit the admission of the prior consistent statement. The prior consistent statement has probative value because it illustrates that the witness’s story was the same even before a motive to fabricate arose: see Stirling, at para. 5; R. v. J.A.T., at para. 98.
37A prior consistent statement that is admissible to rebut an allegation of recent fabrication is not admitted to prove the truth of its contents. Rather, it neutralizes the challenge or allegation of recent fabrication. The evidence of the prior consistent statement is used to establish that the challenge is in error, not to show that the statement is true or that the witness is likely telling the truth because they said the same thing before. In this sense, the admission of the prior consistent statement may impact positively on the witness’s credibility insofar as admission of the statement removes a motive of fabrication. As Bastarache J. stated on behalf of the Supreme Court of Canada in Stirling, at para. 7:
However, a prior consistent statement that is admitted to rebut the suggestion of recent fabrication continues to lack any probative value beyond showing that the witness’s story did not change as a result of a new motive to fabricate. Importantly, it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and any admitted prior consistent statements should not be assessed for the truth of their contents.
38The Hon. Justice David Paciocco describes the operation of the recent fabrication exception in his aforementioned article as follows, at p. 191:
“Recent fabrication” is a rebuttal rule. If at the end of the case the decision-maker believes the prior consistent statement to have been made, it will neutralize the challenge to the litigant’s case without in any way adding corroboration, confirmation, or affirmative weight to the credibility or reliability of the witness who was challenged. Their evidence remains in the state it was before the failed “recent fabrication” challenge.
Judges must therefore be cautious to avoid language which suggests they are treating the prior consistent statement as adding to the credibility of the witness. Where judges do use terms such as “supports” or “bolsters” or “strengthens”, so long as it is clear from their decision as a whole that they are simply suggesting that the evidence of the witness is “supported” or “bolstered” or “strengthened” in the limited sense that the prior consistent statement shows their evidence to be more believable than if the “recent fabrication” challenge went unanswered, there will be no error. If the comments go farther and imply that the prior consistent statement adds affirmatively to the credibility of the witness, the judge will fall into error.
39For the reasons that follow, I conclude that the trial judge did fall into such error and improperly based his verdict on the hearsay evidence elicited from the complainant’s mother.
40The complainant’s telephone conversation with her mother was admissible both as narrative and to rebut the allegation of recent fabrication. That said, the sole use to which the trial judge could put the prior consistent statement was to support the complainant’s credibility to the extent of rebutting the allegation of recent fabrication; it could not be admitted or used as evidence of the truth of its contents.
41As mentioned, the trial judge stated that given the complainant’s condition of intoxication, her generally poor memory of other events that occurred before and after the alleged assault, and her demeanor while being interviewed by the police, “it would be dangerous and unsafe to find the accused guilty of the offence charged based on her evidence standing alone.” He then went on to find that the mother’s evidence concerning what her daughter said to her confirmed the complainant’s allegation that the appellant had sexually assaulted her. Again to repeat, the trial judge stated:
Finally, the victim told her mother that the accused was touching her and that she was scared. I find that the mother’s evidence is capable of confirming the victim’s allegations that the accused sexually assaulted her. No matter how one views her conduct at the police station while she was being interviewed by the police, it cannot be said that the victim fabricated her allegations about what the accused had done to her in his vehicle earlier that day.
42The trial judge’s comments go beyond merely finding that the prior consistent statement shows the complainant’s evidence to be more believable because it was not a “recent fabrication”. He expressly treated the mother’s evidence of what her daughter had told her as an independent piece of evidence capable of confirming the complainant’s allegation of sexual assault. This was an impermissible use of the prior consistent statement. Having concluded that it would be dangerous and unsafe to convict based on the evidence of the complainant alone, he then proceeded to use the hearsay evidence as confirmatory. In my view, this was an error. As stated in Stirling, at paras. 11 and 12:
This Court has found that [prior consistent] statements can be admitted “in support of” the witness’s credibility (Evans, at p. 643 [R. v. Evans, 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629]). What is clear from all of these sources is that credibility is necessarily impacted - in a positive way - where admission of prior consistent statements removes a motive for fabrication. Although it would clearly be flawed reasoning to conclude that removal of this motive leads to a conclusion that the witness is telling the truth, it is permissible for this factor to be taken into account as part of the larger assessment of credibility.
43I would therefore give effect to this ground of appeal.
(2) Was the Verdict Unreasonable?
(a) Positions of the Parties
44The appellant submits that while the trial judge concluded that it would be dangerous to find the appellant guilty based on the evidence of the complainant standing alone, he did just that because none of the other factors he enumerated corroborated her allegation that he sexually assaulted her. As noted above, the trial judge pointed to the following items of “independent evidence”:
The appellant’s cell phone records confirmed that a call was placed to the residence of the complainant’s parents at 6:10 a.m. on February 22, lasting for over 20 minutes.
The police seized a purse and clothing belonging to the complainant from the appellant’s vehicle when he was arrested on February 23.
The complainant’s mother recognized the appellant’s voice during the telephone call.
In response to the question inquiring as to their location, the complainant’s mother heard the appellant say that he had taken the complainant out to see the stars. This was suspicious given it was 6:10 a.m. and considering he had told her he was too busy to drive her home.
The complainant told her mother that the appellant was touching her and that she was scared. The trial judge found that the mother’s evidence was capable of confirming the complainant’s allegation that the appellant sexually assaulted her.
45According to the appellant, none of these factors corroborate the complainant’s testimony. He argues that for evidence to be corroborative, it must be independent from the impugned witness and it must be material, citing R. v. B.(G.), 1990 CanLII 115 (SCC), [1990] 2 S.C.R. 57, at p. 78 and R. v. Khela, 2009 SCC 4, 1 S.C.R. 104, at para. 39. The appellant argues that the first four factors are not material or probative of guilt. The fifth factor is inadmissible hearsay evidence and lacks independence. The verdict is therefore unreasonable because it is based on evidence that the trial judge found was insufficient to prove guilt, combined with both evidence that is not logically probative of guilt and inadmissible hearsay evidence.
46The respondent accepts that the trial judge correctly concluded that it would be dangerous to convict on the basis of the complainant’s testimony standing alone, given the evidence of her drug use, her memory issues, and her motive to assist police. The respondent concedes that if there is no confirmatory evidence, the verdict was unreasonable. He submits, however, that the complainant’s evidence received ample support from admissible confirmatory evidence and thus the verdict is reasonable. According to the respondent, confirmatory evidence need not implicate an accused person in the offence. Rather, the critical question is whether the supporting evidence strengthens the belief that the suspect witness is telling the truth.
47The first four factors considered by the trial judge were independent of the complainant and assisted in confirming her description of events. The statement to her mother that the appellant was touching her was correctly used to support the inference that the complainant’s account was honest and not fabricated. The trial judge properly found that the complainant’s testimony was confirmed by other evidence and, accordingly, the verdict is not unreasonable.
(b) Analysis
48Pursuant to s. 686(1)(a)(i) of the Code, a court of appeal may allow the appeal where it is of the opinion that the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence. This subsection serves to protect against wrongful convictions; it is not a proxy for an appellate trial on the merits.
49The test is “whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered”: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 185 and R. v. Biniaris, 2000 SCC 15, at para. 36.
50As noted by Rosenberg J.A. in R. v. T.C. (2004), 2004 CanLII 33007 (ON CA), 72 O.R. (3d) 623, at para. 34, this court’s power to set aside a conviction on the basis that the trial judge’s assessment of credibility was unreasonable is limited. He went on to quote from McLachlin J. (as she then was) in R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at pp. 131-32:
It is thus clear that a court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond a reasonable doubt, must re-examine, and to some extent at least, reweigh and consider the effect of the evidence. The only question remaining is whether this rule applies to verdicts based on findings of credibility. In my opinion, it does. The test remains the same: could a jury or judge properly instructed and acting reasonably have convicted? That said, in applying the test the Court of Appeal should show great deference to findings of credibility made at trial. This Court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility …. The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as a matter of law it remains open to an appellate court to overturn a verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable.
51In R. v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474, at para. 7, Sopinka J. stated that a verdict based on a credibility assessment is unreasonable if “the trial court’s assessments of credibility cannot be supported on any reasonable view of the evidence” (emphasis added). This statement of the law was reiterated by Cromwell J. in R. v. W. H., 2013 SCC 22, at para. 34.
52Applying these principles to this case, I am unable to conclude that the verdict was unreasonable.
53As mentioned, the respondent conceded that if there were no confirmatory evidence, the verdict was unreasonable. That said, the confirmatory evidence need not independently establish the actual offence: Khela, at paras. 41-43. It is sufficient if it serves to restore the trier of fact’s faith in the complainant’s recollection and perception of events.
54While the hearsay evidence could not be relied upon for the truth of its contents, the complainant’s contemporaneous complaint to her mother and the first four factors enumerated by the trial judge could serve such a restorative purpose. The mother’s evidence of the appellant’s evasive response to the complainant’s inquiry of their whereabouts coupled with his strange statement that he was taking the complainant to see the stars but was too busy to take her home could also serve to establish the accuracy of the complainant’s perception of events. Lastly, the prior consistent statement rebuts the allegation of recent fabrication. As such, it could be concluded that it was unlikely that the complainant was lying so as to obtain favourable treatment from the police.
55Therefore, the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.
56Accordingly, I would not give effect to this ground of appeal.
E. DISPOSITION
57For these reasons, I would allow the appeal, set aside the conviction and order a new trial.
Released: September 26, 2013 “JCM”
“S.E. Pepall J.A.”
“I agree J.C. MacPherson J.A.”
“I agree H.S. LaForme J.A.”
