COURT OF APPEAL FOR ONTARIO
Simmons, van Rensburg and Zarnett JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kaila Dupuis
Appellant
Lisa Jørgensen, for the appellant
Christopher Webb, for the respondent
Heard: June 15, 2020 by video conference
On appeal from the conviction entered on April 11, 2014 by Justice Maureen D. Forestell of the Superior Court of Justice, sitting with a jury.
van Rensburg J.A.:
A. OVERVIEW
1The appellant was charged with second degree murder in the death of her former boyfriend, Jason Paglia. He died from a single stab wound to the chest. After a trial by judge and jury, the appellant was acquitted of murder, but convicted of the included offence of manslaughter. She appeals her conviction.
2The Crown’s theory at trial was that the appellant stabbed the deceased inside her apartment out of anger when he tried to end their relationship. The appellant asserted that her former boyfriend was the aggressor, that he came at her with knives while they argued, and that he was stabbed by a knife he was holding when, in self-defence, she had forcefully pushed him out the door of her apartment.
3An important witness at trial was the appellant’s neighbour, Tina Delina, who testified about what she heard and saw at the door to the appellant’s apartment. Ms. Delina was called as a prosecution witness. The defence relied on this witness’s evidence as confirming certain aspects of the appellant’s account of what happened.
4The appellant’s first ground of appeal has to do with the trial Crown’s questioning of Ms. Delina with reference to an apparent inconsistent statement she made in the preliminary inquiry, the Crown’s use of the inconsistency in closing submissions to impeach Ms. Delina, and the trial judge’s treatment of the evidence in the jury charge.
5I agree with the appellant’s submission that the elicitation, use, and treatment of this evidence rendered her trial unfair to the extent that the appeal must be allowed, and a new trial directed on the charge of manslaughter.
6Briefly, the appellant’s trial was rendered unfair when the trial Crown cross-examined her own witness using alleged inconsistencies from the witness’s preliminary inquiry evidence, without complying with the requirements of s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the “CEA”), and then used the alleged inconsistencies to attack the credibility and reliability of the witness’s evidence, in particular the parts that were supportive of the appellant’s account. Ms. Delina was a key witness. Her evidence, had it been accepted, served to corroborate aspects of the appellant’s account of how the stabbing of the deceased occurred, and was central to the appellant’s defence of self-defence. Instead of instructing the jury to disregard the improperly elicited evidence, the trial judge permitted Crown counsel to use the fruits of the improper cross-examination for impeachment purposes, and then referred to the potential inconsistencies in her jury charge, inviting the jury to consider them in their assessment of Ms. Delina’s evidence. These errors may well have affected the jury’s assessment of the appellant’s credibility, which was the central issue at trial.
7This is sufficient to decide the appeal. The appellant raised other grounds of appeal, having to do with the trial judge’s failure to adequately correct various other alleged legal and factual errors made by Crown counsel in her closing address.1 One of the other grounds was that the trial Crown improperly invited the jury to use prejudicial stereotypes about the expected behaviour of victims of domestic abuse to reject the appellant’s evidence that, having previously been assaulted by the deceased, she was acting in self-defence when he was stabbed, as well as to conclude that she was not a credible witness. While it is unnecessary to address this ground of appeal, I will offer a brief comment on this issue at the conclusion of these reasons.
B. tHE CROWN AND DEFENCE THEORIES AT TRIAL
8The appellant and Mr. Paglia had an on-and-off romantic relationship. During the evening of December 2, 2011, Mr. Paglia visited the appellant in her apartment. It was undisputed at trial that the two were arguing, that Mr. Paglia left the apartment at least twice, and that by the end of the evening, Mr. Paglia had been stabbed in the chest. After being injured, Mr. Paglia made his way to the parking garage of the building and his car, where he collapsed and later died.
9The Crown’s theory was that Mr. Paglia was stabbed by the appellant in anger inside the apartment after he tried to end their relationship. There was evidence of Mr. Paglia’s blood in the apartment as well as signs of a struggle in the kitchen, including a number of knives scattered around.
10The appellant testified that Mr. Paglia had attacked her as they argued about her relationship with another man. She said that when Mr. Paglia came after her with a knife, she pushed him out the door of her apartment and closed the door on him. The appellant testified that she only discovered that Mr. Paglia had been injured when he banged on her door a few minutes later, asking for her help, and that she let him back into the apartment briefly to assist him. She testified that she did not appreciate the seriousness of his injury when he walked out of her apartment. She had followed Mr. Paglia to the parking garage where she found him sitting in his vehicle, and she stayed there until the first responders arrived.
11The defence theory was that Mr. Paglia must have stabbed himself accidentally when the appellant forcefully closed the apartment door on him. Dr. Pollanen, a forensic pathologist called by the Crown, testified about the nature of Mr. Paglia’s injury. He acknowledged that the injury could have happened in a number of ways, and he accepted that the defence’s theory was one possibility.
C. THE IMPUGNED EVIDENCE AND ITS TREATMENT AT TRIAL
12I turn now to consider the alleged improper cross-examination of a Crown witness and its treatment at trial. This arose during the testimony of the appellant’s next-door neighbour, Ms. Delina, about what she heard and saw the night of the incident, and in particular her evidence that she heard Mr. Paglia re-enter the appellant’s apartment after he realized that he was injured. In the course of Ms. Delina’s examination in chief, Crown counsel asked her about an alleged inconsistency between her evidence at trial and what she said in the preliminary inquiry.
13The appellant’s position is that Ms. Delina was cross-examined by the Crown without resort to s. 9(2) of the CEA, and that, instead of correcting the situation, the trial judge permitted Crown counsel to use the inconsistency for impeachment purposes. This resulted in prejudice to the appellant because Ms. Delina’s evidence supported, in material respects, the appellant’s own version of the events. Because of the importance of Ms. Delina’s evidence, this rendered the trial unfair.
14The respondent’s position is that, to the extent that the trial Crown elicited an inconsistency between Ms. Delina’s evidence and her prior testimony, this occurred while the Crown was attempting (unsuccessfully and imperfectly) to refresh Ms. Delina’s memory, and not for the purpose of impeaching the witness without having brought a s. 9(2) application. According to the respondent, it was appropriate for the trial judge to permit the Crown to point out inconsistencies in Ms. Delina’s evidence in her closing submissions and then to instruct the jury in the charge about how they should approach the inconsistencies. In any event, had the Crown brought a s. 9(2) application, it would have been successful. As such, the failure to strictly comply with the procedural requirements did not render the appellant’s trial unfair.
15I will first set out the three instances in which the Crown put prior statements to Ms. Delina, including the impugned interaction that is the subject of this ground of appeal. I will then review how that evidence was addressed at the pre-charge conference, when the impeachment purpose of the Crown’s examination on the prior statement became apparent, and defence counsel objected to such use. Finally, I will turn to the Crown’s closing submissions in which she used the alleged prior inconsistent statement to impeach Ms. Delina, and then to the charge to the jury where the trial judge referred to the prior statement and invited its consideration as a possible inconsistent statement in the assessment of Ms. Delina’s credibility.
(1) The trial Crown examines Ms. Delina with reference to her earlier statements
16The day before Ms. Delina testified, the Crown had advised the trial judge of the possible need to bring a s. 9(2) application with respect to Ms. Delina’s evidence, and she had provided the court with materials for the application. Just before Ms. Delina was called to testify and in the absence of the jury, the Crown told the trial judge that she thought she would be able to avoid bringing a s. 9(2) application. Ultimately no s. 9(2) application was brought.
17Ms. Delina testified in chief that she had called 911 on the evening in question and the 911 call was in evidence. Ms. Delina heard banging on the door of the apartment next door and a man yelling “[o]pen up, open up, something happened to me”. Ms. Delina heard the door open and a woman scream and say, “[g]et out, get out” and “[o]h my god, oh my god”. She was uncertain about the timing of the woman’s statements. At trial, she testified that she heard the man inside the appellant’s apartment after she heard the door close.
18Ms. Delina’s evidence that she heard the man back inside the appellant’s apartment contradicted the Crown’s theory of events, which was that the appellant pushed Mr. Paglia out the door after stabbing him, and that she never allowed him back into the apartment before he made his way down to the parking garage. Instead, this evidence supported the appellant’s account that, after Mr. Paglia had attacked her and she pushed him out the door, he returned, injured, and she helped him inside the apartment before he left for the parking garage. The fact that he came back inside would, among other things, provide an explanation for the presence of Mr. Paglia’s blood inside the apartment.
19On three occasions during Ms. Delina’s evidence in chief the Crown referred the witness to what she had said in her police statement or at the preliminary inquiry. The first two times the Crown expressly said that she was refreshing Ms. Delina’s memory. The defence did not object on any of the three occasions. On the third occasion, the trial judge reminded Crown counsel that this was her witness and that she should try not to lead.
20Although the evidence elicited on the first two occasions of “refreshing memory” is not challenged on appeal, how this developed provides context for what followed, and is relevant to the respondent’s argument that, on the third occasion, the Crown was simply trying to refresh the witness’s memory.
21The first time Crown counsel took Ms. Delina to an earlier statement was during a series of questions about the sound of the man’s voice as he asked the person in the apartment to open the door and said that something had happened to him. Ms. Delina did not express any trouble remembering. She testified that he sounded distraught, like he needed help. Ms. Delina said that she could tell that something was wrong with the man by the way his voice sounded. She testified that she couldn’t tell if he was hurt or injured, only that he was in distress. After Ms. Delina gave these answers, the Crown provided Ms. Delina with the transcript of her police interview “[j]ust to refresh [her] memory about how the male sounded” and asked her to read a passage. In the end, Ms. Delina accepted the Crown’s suggestion that the man had sounded injured.
22Although there was no foundation to refresh memory, the defence did not object to the way the prior statement was put to the witness, and the trial judge did not intervene. The evidence that was elicited in this way did not materially advance the Crown’s case or harm the defence case. On both the Crown and defence theories, Mr. Paglia was injured when he banged on the appellant’s door, asking for help.
23The second time Crown counsel took Ms. Delina to an earlier statement was when she was asking Ms. Delina about what she heard after hearing the female scream. She asked Ms. Delina if she heard “anything happen to [the apartment] door.” Ms. Delina replied “[n]o”. The Crown immediately took Ms. Delina to the transcript of her police interview, without first asking whether it would refresh her memory. She directed Ms. Delina to read the transcript to herself. The Crown then asked Ms. Delina a series of questions, in the course of which Ms. Delina stated: “I don’t know if I said ‘slammed’ [apparently referring to her police interview], but anyways the door had closed”. The Crown pursued the point, effectively cross-examining Ms. Delina on an apparent inconsistency between what she said in her police interview – that the door was “slammed” – and her evidence at trial – that the door was “closed” or “shut”. Defence counsel did not object to the Crown’s approach, and the trial judge did not intervene.
24On the third occasion, which is the contentious one for the purpose of this appeal, the Crown established a significant inconsistency between Ms. Delina’s evidence at trial – that she heard the man enter the apartment – and her evidence at the preliminary inquiry – that she did not hear any voices after she heard the apartment door close.
25The Crown began by referring Ms. Delina to her saying in the 911 call that “[h]e’s still there. He’s inside the house.” The Crown asked Ms. Delina whether she was able to tell if the person entered inside the apartment, and she responded that she “only heard that he went in.” The Crown asked Ms. Delina to explain what she was basing that on, and Ms. Delina testified that, after the woman finished screaming everything toned down, she could still hear people in the apartment but the voice went down, and there was no yelling or screaming.
26The Crown advised that she would return to this area of questioning, which she did soon after. She asked Ms. Delina:
Q. You heard the door shut and then your memory today is about hearing that you concluded that he was inside the apartment ‘cause you heard, I can’t remember what your words were, whispering, sort of a different tone of voice?
A. Yeah, the tone of the voice like had gone down.
Although Ms. Delina had not expressed any difficulty remembering, the Crown then took the witness directly to her evidence from the preliminary inquiry. She gave Ms. Delina a copy of the transcript, but did not refer to the fact that she was attempting to refresh her memory, and she did not direct the witness to read the passage silently:
Q. All right. So for your purposes and Counsel’s purposes I want to take you to page 21 of your preliminary hearing transcript.
Q. All right, so looking at your preliminary hearing transcript from May 1st, 2013, you recall being asked a question about after you hear the door shut?
A. Yes.
Q. Do you hear anything else?
A. Okay, so I said “no voices”, meaning like the voice wasn’t like escalated. Like I heard talking, but it wasn’t like – like there was like an argument or something. All right. So I don’t know. I don’t know what to say. I said that I didn’t hear no voices, meaning like – like in the time that from what I heard the difference from in the hallway and then him entering into the unit, the tone was different, so….
Q. Okay, so let’s – because the jury doesn’t have the benefit of your transcript…
A. Okay.
Q. …I want to be very fair…
A. Um-hmm.
Q. …to you that we understand what your evidence is.
A. Okay.
Q. All right, so what again you’re referring to is page 21 of your preliminary hearing transcript?
A. Um-hmm.
Q. And the question asked was: “After you hear the door shut, do you hear anything else?”
A. Yes, okay.
Q. And you answered “No”?
A. Yeah.
Q. And then the question is: “No voices?” So you see that?
A. Yeah.
Q. So we’re at the top of page 21, preliminary…
A. Yes.
Q. …hearing transcript from May 1st…
A. Yeah.
Q. …2013. You’re asked: “After you hear the door shut, do you hear anything else?”
A. Yeah.
Q. Your answer is: “No”? Correct?
A. Yeah.
Q. Question: “No voices?”
A. Right.
Q. Answer: “No”? You agree?
A. Yes, yes.
Q. Question: “No screaming?”
A. Yes.
Q. Answer: “No”?
A. Right.
Q. All right. And so when you testified back at the preliminary hearing your memory was then you don’t hear any voices, correct?
A. Yes.
Q. And you don’t hear any screaming?
A. Right.
Q. But I want you….
At this point, the trial judge interjected, reminding Crown counsel that this was her witness and examination in chief and that she needed to try not to lead. Crown counsel continued with Ms. Delina:
Q. But I’m just trying to clarify – so your evidence today, and I want to be fair about this, is – what is it that you’re saying that you heard at the door after the door was shut?
A. At that point I just heard a little bit of like talking, but I was – I’m not sure what the conversation was ‘cause at that point after that I know that he had entered I ran to the phone to call 911.
Q. All right.
A. But I didn’t hear any screaming or any loud voices after that because I was at the phone.
Q. And do you recall whether or not you ever said to the police or the court before about hearing voices inside the apartment after the door shut?
A. I can’t remember.
27Defence counsel’s cross-examination of Ms. Delina was very brief. He did not return to this area. He did not complain about the Crown’s cross-examination of Ms. Delina either at the time it was taking place or after the jury had left for the day.
28I turn now to what happened at the pre-charge conference, after the impeachment purpose of the impugned questioning became clear, and how the alleged prior inconsistent statements referred to during Ms. Delina’s examination in chief were used by the Crown, objected to by the defence, and then referred to in the charge to the jury.
(2) The impeachment purpose of the impugned evidence is discussed at the pre-charge conference
29The Crown’s intention to refer to the impugned evidence to impeach her own witness became evident during the pre-charge conference, when she asked the trial judge to refer in her jury charge to the inconsistencies between Ms. Delina’s evidence at trial and her evidence at the preliminary inquiry. Crown counsel also advised that she intended to refer to the inconsistencies in her own closing submissions.
30A lengthy exchange took place. Initially, the trial judge seemed surprised by the Crown’s proposed use of the statement. She indicated that she was not entirely sure how the Crown could impeach her own witness that way. Although the Crown had taken Ms. Delina to the prior statement, this did not refresh her memory, as she did not agree with what she had said there. The trial judge reminded the Crown that there had been no application to cross-examine Ms. Delina, and that she had not ruled on inconsistencies or permitted cross-examination.
31Defence counsel objected to the trial judge referring in her charge to the inconsistencies in Ms. Delina’s evidence that were brought out by Crown counsel by reference to her earlier statement, and to Crown counsel relying on this in her closing submissions. He argued that because the Crown failed to bring a s. 9(2) application, her attempt at refreshing memory by reference to a prior statement that was not adopted amounted to no evidence, and that it would be wrong to highlight the alleged inconsistency in the charge to the jury. Defence counsel pointed out that a s. 9(2) application should have been brought if the Crown had wanted to make an issue of Ms. Delina’s credibility when she testified that she heard voices after the door shut. He argued that, “to now put the Defence in a position where the Crown’s going to call their own witness ‘uncredible’ on a point that’s very important to the Defence without having properly suggested it at the time would be [a] huge prejudice to the Defence.” He stressed that this was a “very important point” because Ms. Delina’s evidence that the man, presumably Mr. Paglia, went inside the apartment was consistent with the appellant’s account of events.
32The Crown’s response was that she had not brought a s. 9(2) application because the evidence came out to her satisfaction without the need for one. She argued that, since there was no objection at the time, it would be prejudicial to the Crown to pretend that the evidence did not come out as it did or to prevent the jury from considering it.
33Ultimately, the trial judge decided that the jury needed to be told how to deal with the evidence. She proposed that her charge would review the inconsistencies and any explanation Ms. Delina may have given, and, at the request of the defence, that she would confirm that the prior statement was not evidence unless the jury found the witness adopted it.
(3) The Crown uses the impugned evidence for impeachment purposes in her closing submissions and defence counsel objects
34The importance of Ms. Delina’s evidence was highlighted in the defence’s closing submissions. He said that Ms. Delina’s evidence that the appellant sounded shocked and did not expect what she saw when she opened the door, could be “the most important piece of evidence in this case because it sheds light on what [the appellant] did, and what she understood happened” – namely, that while she was defending herself and slammed the door, the knife plunged into Mr. Paglia. Defence counsel asked the jury to accept the evidence of Ms. Delina that Mr. Paglia had entered the apartment, stressing again, “it may be the most important evidence in this case”, and that it was contrary to the Crown’s theory because it was inconsistent with someone intentionally stabbing somebody and then sending them away to die on their own without assistance. With respect to the alleged inconsistency, counsel told the jury that, although the Crown had challenged Ms. Delina on whether she heard people inside the apartment, she was unshaken. Later, in reviewing the evidence which corroborated the appellant’s account, counsel again referred to Ms. Delina’s evidence that Mr. Paglia entered the apartment.
35In her closing submissions, the Crown argued that while the jury could accept some of what Ms. Delina said, they should exercise caution in what they chose to accept. She advocated a cautious approach “because [Ms. Delina’s] account had some concerning aspects of unreliability.” The Crown told the jury that they should be very concerned about accepting Ms. Delina’s evidence that she heard Mr. Paglia enter the apartment, and she made multiple references to what Ms. Delina said during the preliminary inquiry:
[Ms. Delina] testified in-chief that she immediately called 911 after the exchange at the door. But she also testified that she did not hear anything from the apartment when she was on the phone with 911. She also testified that she could hear voices from inside the apartment. However, you’ll recall that when her memory was refreshed with her preliminary hearing transcript from May 2013 about what she heard after the apartment door was closed, she testified as follows, question from me, “you were asked” – this is referring to the preliminary hearing, “after you hear the door shut do you hear anything else?” She responds to you at trial, “Yeah.” Question, “Your answer is no,” referring to what she said at the preliminary hearing. I said, “Correct?” and she answered, “Yes.” Question, “No voices?” Answer, “Right.” That’s what she said May 2013 about whether or not there are voices inside the apartment.
Ask yourselves why she testified at the preliminary hearing that she [couldn’t] hear anything once the door was shut. Ask yourself why she previously testified the apartment door slammed shut, but at trial she said it closed. [Emphasis added.]
36The trial Crown summarized her position on Ms. Delina’s credibility and reliability and again referred to the apparent inconsistency between her evidence at trial and what she said at the preliminary inquiry:
[Y]ou might find that she’s just not reliable. That her claim that Jason entered the apartment after Kaila Dupuis screamed, get out, isn’t reliable for a number of reasons. Given that it doesn’t make sense in context that Kaila Dupuis screamed? That it doesn’t make sense in the context of her distance from the door, and her ability to hear quiet voices even though she’s on the phone with 911? That it doesn’t make sense given the contradiction in her testimony [from] May 2013? And that it doesn’t make sense given that she had the miraculous ability to hear quiet voices at the door, even though she didn’t hear minutes of screaming just minutes before.
37Defence counsel objected to aspects of the Crown’s treatment of Ms. Delina’s evidence in her closing submissions, including the suggestion that there was a prior inconsistent statement when what occurred was that Ms. Delina refused to adopt her prior evidence and then offered an explanation. The trial judge indicated that she saw no need to provide an instruction to the jury on that point.
(4) The jury charge refers to the alleged inconsistency in Ms. Delina’s evidence and invites its impeachment use
38The trial judge referred to Ms. Delina’s evidence several times during her charge. In her main summary of Ms. Delina’s evidence, she referred the jury to the alleged inconsistency relied on by the Crown, as well as Ms. Delina’s response when this was put to her. She provided the jury with a standard instruction on the assessment of the alleged inconsistency and the explanation Ms. Delina had given, and its use in assessing credibility and reliability, but not as evidence of what had happened:
[Ms. Delina] testified at trial that she did not see the man go in, but that she heard people talking inside the apartment. Ms. Delina was taken to a preliminary inquiry testimony. In that proceeding she was asked, after you hear the door shut, do you hear anything else? She answered no. She was asked, no voices? And she said, no. Ms. Delina explained that she said no voices, meaning that the voice wasn’t escalated. She testified that she heard talking, but it wasn’t like there was an argument. She said, “I don’t know what to say. I said that I didn’t hear no voices, meaning that like in the time from what I heard the difference from in the hallway and then him entering into the unit, the tone was different.” As I’ve already told you, whether a prior statement of a witness is inconsistent or whether there is an explanation for any apparent inconsistency, or whether the inconsistency is of significance in assessing the credibility and reliability, is for you to determine. You should remember, however, that unless a witness adopts a prior statement, you cannot use the statement as evidence of what happened. So, after this event, the police came according to Ms. Delina 10 to 15 minutes later. When she opened her door she saw blood on the stairwell door.
D. POSITIONS OF THE PARTIES
39The appellant contends that the Crown improperly cross-examined Ms. Delina without complying with s. 9(2) of the CEA. The trial judge ought not to have permitted the Crown to use the improperly elicited evidence to impeach Ms. Delina’s credibility, nor invited the jury to consider the prior inconsistent statement in assessing the credibility and reliability of her evidence. According to the appellant, what happened here in relation to Ms. Delina’s evidence, which was key evidence because it affected the assessment of the appellant’s own credibility, rendered the trial unfair.
40The respondent asserts that the impugned evidence came out when the trial Crown was properly attempting to refresh Ms. Delina’s memory, and that there was no need for a s. 9(2) application. The respondent contends that, once the evidence came out, it could not be ignored, and the trial judge properly permitted the inconsistency between Ms. Delina’s evidence and her prior testimony to be used as a basis to assess her credibility. In the alternative, the respondent argues that no harm was occasioned by the trial Crown having failed to follow the appropriate procedure, because a s. 9(2) application would necessarily have succeeded.
E. DISCUSSION
41In considering this ground of appeal I will address the following issues:
Was this a case of the Crown’s refreshing memory or an improper cross-examination of the Crown’s own witness?
If this was improper cross-examination, can this court determine that no prejudice results because leave would have been granted under s. 9(2) of the CEA if an application had been made?
Should the appeal be allowed, and a new trial ordered as a result of the improper cross-examination and what followed?
42As I will explain, in my view defence counsel and the trial judge might reasonably have assumed that Crown counsel was attempting to refresh Ms. Delina’s memory on the third occasion that she put a prior statement to the witness. That said, irrespective of what was perceived to be happening, and whether or not it was the intention of Crown counsel to refresh memory, a s. 9(2) application ought to have been brought if Crown counsel was to use a prior inconsistent statement for impeachment purposes. The record in this case does not permit this court to conclude that there was no harm because a s. 9(2) application would necessarily have succeeded. And in any event the Crown does not rely on the curative proviso in this appeal. In my view, it was wrong for the trial judge to permit the Crown to use the evidence that was elicited without a s. 9(2) application in the same way she would have been allowed to use the evidence if a s. 9(2) application had been brought, and to endorse such use in the jury charge. The trial was rendered unfair because this caused material prejudice to the appellant’s defence.
43I will address each issue in turn.
(1) Was this a case of the Crown’s refreshing memory or an improper cross-examination of the Crown’s own witness?
44I begin by referring to the relevant legal principles. Just as counsel is not permitted to put leading questions to his or her own witness, cross-examination of a party’s own witness is also not permitted. Exceptions occur where the witness is determined to be adverse, or hostile, or where the witness is not necessarily adverse or hostile but has allegedly made a prior inconsistent statement, where the requirements of s. 9(2) of the CEA are met. In each case, it is necessary before cross-examining one’s own witness to obtain leave of the court. The procedure for cross-examining one’s own witness on a prior inconsistent statement is prescribed by s. 9(2) of the CEA, which provides:
9(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.
45The proper procedure for bringing and considering an application under s. 9(2) is set forth in R. v. Milgaard (1971), 1971 792 (SK CA), 2 C.C.C. (2d) 206 (Sask. C.A.), at pp. 221-22, leave to appeal refused, [1971] S.C.R. x. The statement must be produced, and the trial judge must determine whether the prior statement is inconsistent, and then determine whether counsel should be permitted to cross-examine the witness. See also R. v. Taylor, 2015 ONCA 448, 325 C.C.C. (3d) 413, at paras. 43-51.
46Another situation in which a witness’s prior statement may be put before the witness is where counsel is refreshing memory. This is permitted only where the witness is having difficulty remembering. Whether counsel is permitted to refresh memory in this way is in the discretion of the trial judge, and there is a procedure that must be followed. Counsel must lay a foundation by ascertaining whether the witness is having difficulty remembering. Counsel should ask the witness if they wish to refer to a prior statement. If the witness confirms he or she needs assistance remembering and wishes to refer to the prior statement, counsel should seek leave from the court to refresh the memory of the witness. The statement is produced to opposing counsel, who may object to its use. If the court permits the refreshing of memory, counsel should provide the statement to the witness, and instruct the witness to consult the relevant portion in silence. Counsel can then resume questioning the witness: see Sidney N. Lederman, Alan W. Bryant & Michelle Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th Edition (Toronto: LexisNexis Canada, 2018), at ss. 16.128-16.129; Peter J. Sankoff, The Law of Witnesses and Evidence in Canada (formerly Witnesses), (Toronto: Thomson Reuters Canada Limited, 2019), at c. 11.4. If the statement does not refresh the witness’s memory, “no use should be made of it unless the record is admissible under some other rule of evidence”: David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 546.
47The respondent argues that what happened here was simply a proper attempt to refresh Ms. Delina’s memory, that was imperfectly executed. The respondent says that the trial Crown did not set out to impeach her own witness or to have her declared hostile. Rather, she sought, albeit unsuccessfully, to refresh Ms. Delina’s memory.
48On a review of the record as a whole, I accept that defence counsel and the trial judge might well have believed that, on the third occasion when the trial Crown confronted Ms. Delina with a previous statement, she was attempting to refresh memory. The Crown’s approach to refreshing memory had become increasingly relaxed throughout Ms. Delina’s examination in chief.
49While Crown counsel did not refer to refreshing memory when the impugned interaction occurred, and again no foundation was laid, defence counsel, who was aware of the potential s. 9(2) issue, did not object. The failure to object, together with the surprised reactions of the trial judge and defence counsel at the pre‑charge conference when the Crown proposed to refer to this inconsistency in closing submissions and asked the trial judge to do so in her charge, suggest that defence counsel and the trial judge may have believed at the time the impugned interaction took place, that the Crown was attempting to refresh Ms. Delina’s memory.
50The respondent argues that what occurred here was simply a procedural irregularity in refreshing memory and not an improper cross-examination based on a prior inconsistent statement. The respondent asserts that, as in R. v. Slatter, 2018 ONCA 962, 369 C.C.C. (3d) 112, it would be wrong to allow the appeal based on procedural irregularities in the Crown’s refreshing memory of a witness. The respondent asserts that it was appropriate for the trial Crown to attempt to refresh the memory of Ms. Delina, an “honest but forgetful witness”, even if there were problems with how the Crown approached the task.
51I disagree. In Slatter, the appellant argued, as here, that the failure of the trial Crown to bring a s. 9(2) application rendered the trial unfair. This court concluded however that what had occurred was in fact an attempt to refresh a witness’s memory, without following the proper procedure. The trial Crown sought to refresh the witness’s memory using his police statement and preliminary inquiry evidence, but instead of providing him with the transcripts, she read aloud the passages she wished to bring to his attention. The witness in question had testified by way of video link, and his evidence was confusing. Fairburn J.A. acknowledged that “the steps taken to refresh [the witness’s] memory did not follow a textbook approach” but did not allow the appeal on this basis. The circumstances were appropriate for refreshing memory because the witness had clearly expressed his failure to remember the details of the incident about which he was testifying: at para. 49. Fairburn J.A. concluded that no unfairness resulted from the procedure followed, which was adopted on consent as a response to the witness’s hesitance in the context of a judge-alone trial: at paras. 47, 59.
52In Slatterno prejudice resulted where the Crown had grounds to refresh the witness’s memory but did not follow the proper procedure. In this case, by contrast, and despite the fact that defence counsel and the trial judge may have believed Crown counsel was setting out to refresh Ms. Delina’s memory, there was no similar basis for Crown counsel to refresh the witness’s memory in respect of the impugned evidence or indeed on any of the three occasions that she put Ms. Delina’s prior statements to her. Moreover, on the third occasion, even if the trial Crown believed that she was refreshing memory, the approach she took was misguided. Without any indication that Ms. Delina was confused or that she had difficulty remembering what happened (to the contrary she seemed firm in her recollection), the trial Crown confronted her with an apparently inconsistent statement she had made in the preliminary inquiry. She effectively impeached Ms. Delina by reference to her preliminary inquiry evidence, without having brought a s. 9(2) application. At the pre-charge conference, with the benefit of hindsight, the trial judge recognized this. The Crown had confronted Ms. Delina with a prior inconsistent statement in a series of leading questions. She then sought to use the inconsistency to undermine Ms. Delina’s credibility and reliability, a classic purpose of cross-examination.
53Contrary to the respondent’s submissions on appeal, there was no basis for the trial Crown to use the preliminary inquiry transcript for the purpose of refreshing Ms. Delina’s memory. Nor did the witness simply “blurt out” her prior inconsistent answer in the course of refreshing memory. In respect of the evidence that the trial Crown sought to contradict – that Ms. Delina believed that the deceased had entered the appellant’s apartment because “the tone went down” and she could still hear people inside the apartment – the witness expressed no difficulty in recalling what happened. The only reason that Ms. Delina may have “blurted out” her prior inconsistent answer was that she had been confronted with the transcript which was improperly before her. Her reference to her earlier testimony was a natural response when she was confronted with it, and, rather than asking Ms. Delina whether her memory was in fact refreshed, the trial Crown used the statement to cross-examine her.
54Finally, a key distinction between this case and Slatter is in the use of the prior statement and its role in the trial. In Slatter,while the Crown did not follow the proper procedure in refreshing memory, no prior inconsistent statement was put to the witness. The references to his earlier transcript were used to prompt his memory and to permit him to testify about the events. The witness was cross-examined in the ordinary course by defence counsel and he ultimately resiled from some of his evidence. Unlike the present case, there was no improper attempt by Crown counsel to use what the witness said on the earlier occasion to impeach his credibility.
(2) If this was improper cross-examination, can this court determine that no prejudice results because leave would have been granted under s. 9(2) if the application had been made?
55The respondent submits that the trial Crown would have succeeded on a s. 9(2) application and that no harm was therefore occasioned when she cross-examined Ms. Delina.
56I agree with the appellant that this court should not attempt to decide the appeal on the basis that the trial Crown would inevitably have been permitted to cross-examine Ms. Delina under s. 9(2), had she made the necessary application. This court does not have a sufficient record to make that determination: see R. v. Hall, 2016 ONCA 13, 128 O.R. (3d) 641, at para. 32, leave to appeal refused, [2016] S.C.C.A. No. 88.
57To succeed on a s. 9(2) application, the Crown would have been required to prove: (1) that there was an inconsistency between the preliminary hearing evidence and Ms. Delina’s evidence at trial; and (2) that Ms. Delina made the prior statement. Then the appellant’s counsel would have had the opportunity to cross-examine Ms. Delina as to the circumstances under which the statement was made, and to call evidence for the purpose of showing that cross-examination by the Crown should not be permitted, before the trial judge would rule on the application: seeMilgaard, at pp. 221-22.
58There is no issue in this case about Ms. Delina having made the prior statement – there was a transcript of the evidence at the preliminary inquiry where the statement was made. What is not entirely clear however is that there was in fact an inconsistency between Ms. Delina’s trial evidence and what she said at the preliminary inquiry. While the available record suggests that there was an inconsistency, the position of defence counsel at trial was that there was no inconsistency between what Ms. Delina said at trial and her preliminary inquiry evidence. In the pre-charge conference, defence counsel referred to the fact that, in her 911 call, Ms. Delina had told the operator that the appellant and Mr. Paglia were inside the apartment, and that she could hear them. The trial Crown did not dispute that Ms. Delina had said this, but she argued that it was based not on Ms. Delina’s direct observations, but those of her son.
59In R. v. C.E.N., 1998 ABCA 290, 129 C.C.C. (3d) 198, Crown counsel similarly cross-examined his own witness without bringing a s. 9(2) application. The Alberta Court of Appeal was invited to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, on the basis that the result would have been the same had a s. 9(2) application been made. The court refused to speculate about whether an application under s. 9 would have been successful had Crown counsel made such an application before embarking on the cross-examination of the witness, because it could not be determined whether the witness’s evidence differed substantially from his police statement. In that case, the police statement was not marked as an exhibit, and had not even been shown to the witness. Moreover, the court could not conclude that the error was harmless and that no substantial wrong or miscarriage of justice resulted. The court could not conclude that the improper cross-examination of the witness had no effect on the trial judge’s finding regarding the witness’s credibility and the appellant’s credibility.
60Similarly, in this case neither the preliminary inquiry transcript in question nor the 911 call is in the record on appeal. This court is not, therefore, in a position to assess whether there was truly an inconsistency in Ms. Delina’s evidence, and accordingly whether the Crown would have been permitted to cross-examine Ms. Delina on this issue, or on any other issue, and to put to her the evidence from the preliminary inquiry. Moreover, although the respondent argues that the result would have been the same if a s. 9(2) application had been brought, the Crown did not rely on the curative proviso. This court cannot apply the curative proviso absent submissions from a party: R. v. P.G., 2017 ONCA 351, 138 O.R. (3d) 343, at para. 13; R. v. Pétel, 1994 133 (SCC), [1994] 1 S.C.R. 3, at p. 17.
61I would not accept this argument for another reason. If, as I have concluded, defence counsel and the trial judge reasonably believed that the Crown was doing no more than attempting to refresh Ms. Delina’s memory when the impugned evidence came out, and not that the Crown was seeking to cross-examine Ms. Delina, then defence counsel was right to insist on its proper use when he made submissions during the pre-charge conference. Defence counsel took the position that since the Crown was refreshing memory and the prior statements were not adopted by the witness, they could not be considered by the jury in assessing Ms. Delina’s credibility. The prior inconsistent statement was not before the jury to be used in the same way as if the Crown had brought a s. 9(2) application. If the application had been brought, the purpose and proposed use of the inconsistent statement by the Crown would have been squarely before the court, and defence counsel would have had the opportunity to address the issue in his own cross-examination of Ms. Delina. The potential unfairness here arose when the trial Crown proposed to use for impeachment purposes the improperly elicited evidence that was purportedly before the court for the limited purpose of refreshing memory.
(3) Should the appeal be allowed, and a new trial ordered as a result of the improper cross-examination and what followed?
62I have concluded that Crown counsel erred in cross-examining her own witness without complying with s. 9(2), and in using the fruits of the cross‑examination to impeach Ms. Delina’s credibility in her closing submissions to the jury. The trial judge erred in permitting the Crown to use the impugned evidence in this way and, in her charge to the jury, in directing the jury’s attention to the alleged inconsistencies and inviting their use in the assessment of Ms. Delina’s credibility.
63Even if the Crown did not call Ms. Delina for the purpose of impeachment, by the time closing submissions came about, despite what the Crown said, it was clear that this was how the Crown intended to use Ms. Delina’s evidence. She intended to tell the jury to reject the bulk of it based, at least in part, on the improper cross-examination.
64The trial judge erred in law in permitting the Crown to do so, and in facilitating the Crown’s approach to the evidence in the jury charge for two related reasons. First, it was prejudicial to the defence to permit the Crown to impeach her own witness on an important issue in this manner. Second, the Crown had not obtained leave to cross-examine and, as a result, the Crown’s approach to cross-examining Ms. Delina left the jury without all the information necessary to appreciate the circumstances surrounding the alleged inconsistency.
65As a matter of law, the jury should have been told to disregard the alleged inconsistency and that the improper cross-examination of Ms. Delina could not be used to undermine her credibility or reliability. Instead, the trial judge decided to deal with this evidence in her charge by giving the jury a specific instruction on it. Although her instruction on how to deal with an alleged inconsistency would have been legally correct if the inconsistency had been properly elicited, in these circumstances, she ought not to have told the jury that they could use the improperly elicited evidence as a prior inconsistent statement to assess Ms. Delina’s credibility. Rather, she ought to have specifically instructed the jury to disregard the inconsistency.
66First, it was prejudicial to the defence to permit the Crown to impeach her own witness in this manner. As outlined above, Ms. Delina’s evidence was important to the defence because it provided a key piece of corroboration for the appellant’s testimony. The jury could have relied on it to believe the appellant’s evidence, or to conclude that her evidence raised a reasonable doubt. The improper cross-examination occasioned prejudice to the appellant, such that absent a corrective instruction, her trial was unfair.
67In R. v. Situ, 2005 ABCA 275, 200 C.C.C. (3d) 9, the Alberta Court of Appeal allowed an appeal from conviction in a judge-alone trial on the basis that the Crown improperly impeached his own witness by cross-examining without first obtaining leave as required by s. 9 of the CEA: at para. 7. The court endorsed the statement in its earlier decision in C.E.N. that “improper cross-examination by Crown counsel of his own witness may result in a new trial where credibility findings by the judge or jury would have been influenced by the cross‑examination, causing prejudice to the accused”: at para. 8.
68In C.E.N.the trial Crown improperly cross-examined its own witness in three key areas, including on an issue that formed an important part of the appellant’s defence. The witness’s evidence supported the accused’s version, and the trial judge rejected it. The court was unable to conclude that the improper cross‑examination had no effect on the trial judge’s credibility findings, and therefore declined to apply the curative proviso: at para. 21.
69By contrast, in R. v. Johnson (2002), 2002 44987 (ON CA), 166 C.C.C. (3d) 44 (Ont. C.A.), although the Crown put two prior inconsistent statements to a witness without having complied with the requirements of s. 9 of the CEA, this court dismissed the appeal after concluding that the impugned cross-examination played no role in the trial: at paras. 55-56. The court also took into consideration the fact that defence counsel said nothing about the alleged statements, demonstrating that “he was satisfied that the appellant’s interests were best served by saying nothing about the alleged statements”: at para. 57.
70In my view, the fact that the impugned evidence could have had a bearing on the assessment of the appellant’s credibility strongly supports the conclusion that the improper cross-examination occasioned prejudice to the appellant’s defence. Ms. Delina’s evidence overall, and in particular her evidence that Mr. Paglia entered the apartment, was important to the defence. Her account of the events was a key piece of corroborating evidence for the defence, in that it tended to support the appellant’s version of what had occurred.
71Unlike in Johnson, where the impugned evidence played no role later in the trial,Ms. Delina’s evidence remained important throughout the trial. In his closing submissions, defence counsel repeatedly stressed the significance of Ms. Delina’s evidence and the role it played in corroborating the appellant’s testimony. In her closing submissions, the trial Crown also focused on Ms. Delina’s evidence. She spent considerable time challenging Ms. Delina’s reliability, recognizing that the jury’s acceptance of Ms. Delina’s evidence could raise a reasonable doubt about the appellant’s guilt. The trial judge gave the jury a specific charge on the impugned inconsistency.
72Although the Crown had other reasons to challenge the reliability of Ms. Delina’s evidence that she heard Mr. Paglia enter the apartment (such as her opportunity to observe), the introduction of the prior inconsistent statement provided the Crown with considerable ammunition for her position that Ms. Delina was a confused, and hence unreliable, witness. This in turn harmed the defence’s case, given that Ms. Delina’s evidence provided support for the appellant’s own evidence.
73Second, the fact that the improper cross-examination was conducted on the assumption that the Crown was only “refreshing memory” deprived the jury of a complete record on the circumstances surrounding the alleged inconsistency. In other words, the Crown improperly cross-examined its own witness on an alleged inconsistency and was permitted to rely on that inconsistency to impeach the witness. At the same time, because of the way the issue evolved, the jury did not have all the information it needed to assess the inconsistency. The defence was deprived of the opportunity to attempt to rehabilitate the witness on this point because of how the issue unfolded.
74Because these errors occurred in a jury trial, the court cannot know what role the impugned evidence played in the jury’s deliberations. However, the improper cross-examination established a basis for the jury to conclude that a key support for the appellant’s version of events was fundamentally flawed. The trial judge expressly told the jury that they could rely on the improper cross-examination in this way.
75The prejudice to the appellant might well have been avoided had the trial judge instructed the jury to disregard the alleged inconsistency. Defence counsel strenuously objected to including any discussion of the alleged inconsistency in the jury charge, and he argued that the Crown should not be able to rely on the inconsistency to undermine Ms. Delina’s credibility or reliability, having failed to comply with s. 9(2) of the CEA. He reiterated his objection after the Crown’s closing submissions. The unfairness to the appellant could have been avoided by an appropriate caution and specifically by preventing the Crown from using the alleged inconsistency for impeachment purposes. Contrary to the trial Crown’s argument at trial, no unfairness would have resulted from the Crown’s being deprived of the opportunity to use the fruits of the improper cross-examination of Ms. Delina. And the unfairness in permitting the evidence to be used in this way was manifest.
76In my view, the trial Crown’s improper cross-examination of Ms. Delina, together with the Crown’s reliance on the evidence to impeach her credibility and the trial judge’s response, undermined the fairness of the appellant’s trial, such that the appeal should be allowed. Although this is sufficient to dispose of the appeal, I wish to conclude these reasons by referring briefly to another ground of appeal that was raised by the appellant in this case.
F. THE CROWN’S RELIANCE ON IMPERMISSIBLE MYTHS AND STEREOTYPES
77The appellant asserted as a ground of appeal, that the trial Crown improperly invited the jury to use prejudicial stereotypes about the expected behaviour of victims of domestic abuse to reject the appellant’s evidence that, having previously been assaulted by the deceased, she was acting in self-defence when he was stabbed, as well as to conclude that she was not a credible witness. Although the trial Crown for the most part focused on the appellant’s own history of intimate relationships with the deceased and another former boyfriend and her prior conduct to challenge her credibility, on more than one occasion during her closing argument, Crown counsel came close to or crossed the line in inviting the jury to measure the appellant’s conduct against how a typical victim of domestic abuse would behave.
78Given my conclusion on the first ground of appeal, it is unnecessary to determine whether the trial Crown’s closing submissions gave rise to prejudice. Crown counsel on appeal acknowledged, and I agree, that given the nature of this evidence and some of the arguments made by Crown counsel in her closing submissions, it would have been preferable for the trial judge to have cautioned the jury to avoid stereotypical reasoning in assessing the appellant’s evidence about prior abuse. Reliance on myths and stereotypes about how a typical victim of domestic abuse would behave is inappropriate, whether it is directed at assessing the behaviour of a person accused of sexual assault or that of a complainant: see R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63; R. v. Thompson, 2019 BCCA 1, 370 C.C.C. (3d) 354, at paras. 56-57, 64; R. v. Quartey, 2018 ABCA 12, 430 D.L.R. (4th) 381, at para. 2, aff’d 2018 SCC 59, [2018] 3 S.C.R. 687.
G. CONCLUSION AND DISPOSITION
79For these reasons, I would allow the appeal, and direct a new trial on the charge of manslaughter.
Released: December 16, 2020 (“J.S.”)
“K. van Rensburg J.A.”
“I agree. Janet Simmons J.A.”
“I agree. B. Zarnett J.A.”
