Court File and Parties

Court of Appeal for Ontario Date: 20240223 Docket: COA-23-CR-0376

Before: MacPherson, Sossin and Copeland JJ.A.

Between: His Majesty the King, Appellant and Norman Lawe, Respondent

Counsel: Brent Kettles, for the appellant Matthew R. Gourlay and Taylor Wormington, appearing as amici curiae

Heard and released orally: February 22, 2024

On appeal from the acquittal entered on March 10, 2023 by Justice Mark Moorcroft of the Ontario Court of Justice.

Reasons for Decision

[1] The Crown appeals the respondent’s acquittal on one count of choking. The trial judge convicted the respondent of two counts of uttering threats and breach of probation. However, he acquitted the respondent of the choking count, which was a separate incident, because he was left with a doubt about the reliability of the complainant’s evidence on that count. The Crown alleges errors in the trial judge’s treatment of a prior statement by the complainant.

[2] We reject the Crown’s argument that the trial judge made a material error in marking the complainant’s police statement as an exhibit. This argument puts form over substance. The record is clear that the trial judge only used portions of the statement as a prior inconsistent statement and not for the truth of its contents. The fact that he marked the statement as an exhibit in a judge alone trial had no material impact.

[3] We are also not persuaded that the trial judge committed legal error in the manner in which the prior statement was entered or in relying in his reasons on the inconsistencies between the statement and the complainant’s trial evidence.

[4] The respondent was self-represented. Unusually, for a trial involving allegations of domestic violence, the Crown had not applied for counsel to be appointed to cross-examine the complainant pursuant to s. 486.3(3) of the Criminal Code, R.S.C. 1985, c. C-46.

[5] During cross-examination, the respondent indicated that he wanted to play the complainant’s statement to police. The trial judge inquired whether the respondent was raising any “specific inconsistency” in the statement. The respondent replied that the inconsistency he was raising was that “she does not really recollect”. This was clearly raising a concern about her reliability based on the prior statement.

[6] It would have been preferable if the inconsistencies later relied on in the trial judge’s reasons were squarely put to the complainant; however, we are not persuaded the trial judge erred in law. The trial judge was in a difficult position. He had a responsibility to ensure a fair trial while also dealing with a self-represented accused, who was not versed in the mechanics of s. 10 of the Canada Evidence Act, R.S.C. 1985, c. C-5.

[7] It was not a long statement – 19 minutes total, the first few of which were taken up with putting the complainant under oath and giving a warning to tell the truth. There was no unfairness to the Crown or the trial process. The trial transcript demonstrates that the Crown was on notice that the reason that the statement was played was to raise inconsistencies with the complainant’s trial evidence. The issue now raised by the Crown on appeal is similar to a Browne v. Dunn argument – that the complainant was not given an opportunity to provide an explanation for the inconsistencies between her prior statement and her trial evidence. But trial counsel for the Crown did not take any steps to address the issue at trial, either by re-examining the complainant to give her an opportunity to address the inconsistencies or by asking to have her re-called when the trial judge raised the issue of the inconsistencies with Crown counsel during closing submissions.

[8] In any event, even if the trial judge’s handling and use of the complainant’s prior inconsistent statements regarding the choking incident rose to the level of legal error, we are not persuaded that the error could reasonably be thought to have had a material bearing on the acquittal. Reading the trial judge’s reasons as a whole, he gave a number of reasons for having doubts about the complainant’s reliability on the choking count. At least three of them were not tied to his concern about the complainant’s prior inconsistent statements.

[9] First, he had concerns about her memory based on aspects of her evidence other than the prior inconsistent statements. Second, he had concerns about the impact on the complainant’s reliability of her consumption of alcohol and illegal drugs in the timeframe of the alleged choking. Third, he had concerns about the inconsistency of the complainant alleging a visible injury to her eye as a result of the choking, which was not observed by the officer who took her statement the next day. He described this as “a material difference” between the evidence of the complainant and the officer. We are not satisfied that the Crown has met the threshold for appellate intervention set out in R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609.

[10] The appeal is dismissed.

“J.C. MacPherson J.A.” “L. Sossin J.A.” “J. Copeland J.A.”