COURT OF APPEAL FOR ONTARIO

DATE: 20001211

DOCKET: C32216/C32350

DOHERTY, MOLDAVER and SHARPE JJ.A.

BETWEEN: )

) David E. Harris

HER MAJESTY THE QUEEN ) for the appellant, Paris

Respondent ) Timothy Breen

) for the appellant, Flood

• and - )

) Michal Fairburn

GORDON WAYNE PARIS ) for the respondent

and HARVEY GRANT FLOOD )

Appellants )

) Heard: November 23, 2000

On appeal from the convictions imposed by Justice J. Robert MacKinnon, sitting with a jury, dated December 10, 1998 and the sentences dated January 11, 1999.*

DOHERTY J.A.:

I

[1] The appellants were convicted by a jury of sexual assault and unlawful confinement. Each was sentenced to 3 1/2 years in the penitentiary. They appeal their convictions. I would dismiss the appeals and affirm the convictions.

II

[2] The complainant was sixteen years old at the time of the events giving rise to these charges. In the early evening of August 4, 1995, she attended a party at a home in the country. At about 3:00 a.m., after consuming a great deal of alcohol, she left the party with her boyfriend and another friend. The complainant and her boyfriend had been arguing during the party and they continued to quarrel as they walked along the road. The complainant grew tired of the quarrelling and went off by herself. She lost track of her two companions and found herself walking alone along a rural road at about 4:00 a.m. She was intoxicated.

[3] The complainant decided to hitchhike to a nearby town. A jeep containing four men stopped to pick her up. These men had been at the party earlier that evening. Although the complainant never could identify either of the appellants, it was common ground by the end of the trial that when the vehicle stopped to pick up the complainant, the appellant Flood was driving. The vehicle belonged to his girlfriend. The appellant Paris was sitting in the front passenger seat. Jason France and Steve Collins were seated in the back. Shortly after the complainant got into the back of the jeep, Collins and France were let off at Collins’ residence. The vehicle drove off with Flood driving, Paris sitting in the front seat, and the complainant sitting in the back seat.

[4] The complainant testified that the two men drove her to an abandoned gravel pit ostensibly in search of a friend at a “bush” party. When they arrived at the gravel pit, the three got out of the vehicle and shared a marijuana joint. There was no party in progress. The complainant then got back into the vehicle and asked the men to drive her to town as they had promised. The complainant testified that both men attacked her. She described a vicious assault during which she was raped and sodomized by the driver and forced to fellate the passenger. The complainant said that at one point during the attack she escaped but that that she was caught and dragged back near the vehicle and assaulted again. Eventually, the complainant fled into the bush where she hid until the men drove off. She was naked.

[5] After the vehicle left, the complainant returned to the gravel pit to look for her clothing. It was pitch black and she could not find any of her clothing. She made her way to a ditch near a road where she crouched naked and terrified waiting for help. At about 5:00 a.m., Mr. Gorry walked by. The complainant got his attention and Mr. Gorry came to her assistance. He gave the complainant his shirt so that she could cover herself. DNA testing established that a semen stain later found on the shirt came from Paris.

[6] Mr. Gorry said that the complainant immediately said she had been raped. He described her as very upset. At times, she was shaking so hard she could not walk. Mr. Gorry managed to get the complainant to his parents’ home. Mr. Gorry senior saw what appeared to be seminal fluid running down her leg. At times, she was in a “trance like state”. The police were notified later that day after the complainant had been taken to a friend’s home and then another residence where she met her boyfriend.

[7] The physical evidence found at the gravel pit offered some confirmation of the complainant’s story. I need not detail that evidence. The doctor who examined the complainant about 10 hours after the incident observed numerous bruises, scrapes and cuts. He also saw dried blood in her anal area and some swelling around her vagina.

[8] The complainant was cross-examined extensively by counsel for Paris. In the course of that cross-examination, counsel referred on several occasions to the complainant having engaged in consensual sexual activity with “two guys”. The complainant repeatedly denied that she had engaged in consensual sexual activity with “two guys”. It was never suggested to the complainant that she had gone to the gravel pit with Paris only and that Flood had left the vehicle before the trip to the gravel pit. Quite the contrary, the entire cross-examination by counsel for Paris was premised on the acceptance of her evidence that she was involved in sexual activity with two men at the gravel pit. Counsel for Paris also did not cross-examine the complainant on the details of the alleged sexual assaults. Counsel for Flood conducted a very brief cross-examination and did not ask any questions about the alleged assault and confinement.

[9] Paris testified. He confirmed that he, Flood, Collins and France had picked the complainant up in the early morning of August 5th. He also confirmed that after Collins and France had left the vehicle to go home, he, Flood, and the complainant talked about going to the gravel pit to see if there was a party in progress. In cross-examination, Paris admitted that he had left the gravel pit shortly before picking the complainant up and that there was no party in progress at that time.

[10] Paris further testified that after discussing the trip to the gravel pit, Flood decided that he had to go to work the next morning and that he should go home and get some rest. According to Paris, Flood, who was driving the vehicle, offered to let Paris have the vehicle to drive to the gravel pit. Flood said he would walk home or perhaps call a cab. It was about 4:00 a.m. Flood’s home was about a 30 minute walk from where Flood agreed to be dropped off. According to Paris, Flood got out of the vehicle and the complainant moved into the front seat.

[11] Paris said that he and the complainant drove to the gravel pit. They had a beer and shared a marijuana joint. They then sat down in a sandy area near the vehicle and engaged in gentle, but passionate, consensual touching and kissing. The complainant stroked Paris’ penis, but he refused to have intercourse with her because he did not have a condom. He did not remember ejaculating but accepted that he must have, given that his semen was found on Mr. Gorry’s shirt. Paris insisted that there was no aggressive sexual activity and denied touching the complainant’s anus.

[12] Paris went on to testify that at some point during this encounter, the complainant “just disappeared”. Paris looked for her for about 25 minutes, could not find her, and drove off.

[13] Paris was arrested about two weeks after the event. He was taken to the police station and spoke with his lawyer. He was later questioned by the police and given an opportunity to make a statement. Paris replied that his lawyer had told him not to say anything. He was then asked if he had anything to say “about an alleged sexual assault against a 16-year old female at Ardagh Pit in Barrie in the early morning of August 5th”. Paris replied “That’s not the way it happened. That’s all I want to say.”

[14] Flood did not testify. He was hiding in the bedroom closet covered by a blanket when the police arrested him some four days after Paris’ arrest.

[15] France and Collins initially told the police that they were in the vehicle with the appellants when a female hitchhiker was picked up. They recanted those statements. At the preliminary inquiry, both testified that no female hitchhiker had been picked up that evening. France and Paris were subsequently charged with and pled guilty to perjury. At trial, they testified that they were with the appellants when they picked up the complainant and that they got out of the vehicle at Collins’ home shortly after the complainant got into the vehicle.

III

The trial judge’s instructions as to the effect of counsel’s cross-examination of the complainant on the appellant Paris’ credibility.

[16] As outlined above, when counsel for Paris cross-examined the complainant, she implicitly accepted her evidence that there were two men involved in the sexual activity in the gravel pit. She suggested to her that the activity was consensual. Counsel also did not question the complainant as to the details of the sexual activity. On any reasonable view of counsel’s cross-examination, it would have appeared that it was Paris’ position that whatever sexual activity may have occurred between the complainant and two men at the gravel pit was entirely consensual. As indicated above, however, Paris testified that Flood was not at the gravel pit and took no part in the sexual activity that Paris described.

[17] At the conclusion of Paris’ examination-in-chief, the Crown sought a mid-trial instruction to the effect that the jury could consider the failure to put Paris’ version of events to the complainant during cross-examination in assessing the credibility of Paris’ evidence. Ultimately, Crown counsel indicated that he would be content with an instruction at the end of the evidence.

[18] Trial counsel for Paris did not suggest that the complainant could be recalled to give evidence on the factual issues raised for the first time in the testimony of Paris. This may or may not have been an appropriate course of action in the circumstances of this case: 2000 4897 (ON CA), 144 C.C.C. (3d) 551 at 564-65 (Ont. C.A.). Absent any request that the witness be recalled, I do not think the trial judge can be faulted for failing to recall the complainant on his own initiative.

[19] In the course of his instructions, the trial judge referred to the fact that counsel for Paris had not cross-examined the complainant on the specifics of the alleged sexual assault and had failed to cross-examine her on Flood’s presence during the sexual activity at the gravel pit. He said that these features of the cross-examination necessitated “a special instruction on the weight that you should give to the evidence of Mr. Paris”.

[20] The trial judge referred to the “general rule” governing all counsel that significant and material matters should be put to the witness in cross-examination if counsel intends to suggest that the witness is not telling the truth on those issues. He then said:

In view of the failure of defence counsel for Mr. Paris to cross-examine [the complainant] on these details, you may consider how this omission affects the weight that you may choose to give to the evidence of Mr. Paris. But, you may not, ladies and gentlemen, you may not, in law, consider this omission of counsel for Mr. Paris, to, in any way, be probative of anything when you are considering the case against Mr. Flood. [Emphasis added.]

[21] In support of his submission that the trial judge misdirected the jury, appellate counsel for Paris undertook a careful and well researched review of the “rule” in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.). She submitted that the “rule” had been misunderstood and that its applicability in criminal cases is doubtful at best. I do not think it is necessary to explore the broad issues canvassed by counsel. I prefer to take a narrower focus. The fate of this appeal turns on the correctness of the specific instructions given in the circumstances of this case.

[22] Where a witness is not cross-examined on matters which are of significance to the facts in issue, and the opposing party then leads evidence which contradicts that witness on those issues, the trier of fact may take the failure to cross-examine into consideration in assessing the credibility of that witness and the contradictory evidence offered by the opposing party. The effect of the failure to challenge a witness’s version of events on significant matters that are later contradicted in evidence offered by the opposing party is not controlled by a hard and fast legal rule, but depends on the circumstances of each case: R. v. Palmer (1979), 1979 8 (SCC), 50 C.C.C. (2d) 193 at 209-210 (S.C.C.); R. v. H. (L.M.) (1994), 39 B.C.A.C. 241 at 255 (C.A.); R. v. Verney (1993), 1993 14688 (ON CA), 87 C.C.C. (3d) 363 at 375-76 (Ont. C.A.); R. v. K.(O.G.) (1994), 1994 8742 (BC CA), 28 C.R. (4th) 129 at 131 (B.C. C.A.); R. v. Letourneau and Tremblay (1994), 1994 445 (BC CA), 87 C.C.C. (3d) 481 at 522-23 (B.C. C.A.); R. v. McNeill, supra, at 565; A. Mewett, Witnesses, 2d ed., looseleaf (Toronto: Carswell, 1999) at 2-32 to 2-34.

[23] The potential relevance to the credibility of an accused’s testimony of the failure to cross-examine a complainant on matters that the accused subsequently contradicts in his testimony will depend on many factors. These include the nature of the matters on which the witness was not cross-examined, the overall tenor of the cross-examination, and the overall conduct of the defence. In some circumstances, the position of the defence on the matters on which the complainant was not cross-examined will be clear even without cross-examination. In other circumstances, the areas not touched upon in cross-examination will not be significant in the overall context of the case. In such situations, the failure to cross-examine will have no significance in the assessment of the accused’s credibility. In other circumstances, however, where a central feature of the complainant’s evidence is left untouched in cross-examination or even implicitly accepted in that cross-examination, then the absence of cross-examination may have a negative impact on the accused’s credibility.

[24] The connection between the failure to cross-examine a complainant on significant matters and the accused’s credibility seems to me to be straightforward. In discussing the “costs” of the failure to cross-examine, Professor Mewett puts it this way in his text, supra at 2-32:

… The cost is how much credence a fact finder will give to evidence that is introduced for the first time after the witness whose testimony is now being questioned has finished testifying and who no longer has an opportunity to tell his or her side of the story. As such, it may be unwise not to cross-examine an opposing witness when he or she is on the stand if it is intended to contradict that witness’s evidence. … The trier of fact may well wonder why there was no cross-examination, and take that into account in determining what weight to give to the contradictory testimony.

[25] In this case, the presence of two men at the gravel pit and their joint involvement in the sexual assault of the complainant was a central feature of the Crown’s case. Not only did counsel for Paris not challenge that part of the complainant’s testimony, she implicitly accepted it in several questions which he put to the complainant. Counsel for Flood also took no issue with this part of the complainant’s testimony in his cross-examination. There was no suggestion in any part of the evidence at any time prior to Paris’ testimony that it would be his position that only he and the complainant were at the gravel pit. In these circumstances, it was appropriate for the jury to consider, in their assessment of Paris’ credibility, the failure to confront the complainant with Paris’ claim that Flood was not at the gravel pit and took no part in the sexual activity.

[26] The trial judge also referred to counsel’s failure to confront the complainant with the details of Paris’ version of the sexual activity that occurred. This failure stands on a somewhat different footing. Counsel clearly put it to the complainant that whatever sexual activity occurred was consensual. Had the failure to confront the complainant with the details of Paris’ version of that sexual activity been the only omission in the cross-examination, it may well be that the challenged instruction would not have been appropriate.

[27] I find no reversible error in the trial judge’s instructions. He told the jury that the failure to cross-examine the complainant on these matters could be considered in weighing the evidence of Paris. He did not tell the jury that the failure to cross-examine necessitated an adverse inference with respect to Paris’ credibility or that it suggested Paris’ evidence was concocted. Consistent with the Canadian case law outlined above, the trial judge left it to the jury to decide what weight should be given to this feature of the case when assessing Paris’ credibility.

[28] I do think, however, that it would have been better had the trial judge not referred to this direction as a “special instruction”, but rather simply left this direction to the jury as one of the factors to be considered by it when assessing Paris’ evidence. I also see no need to refer to counsel’s obligations when instructing the jury. Juries are concerned with weighing evidence and rendering verdicts, not with the professional obligations of counsel. I do not, however, view either the reference to “a special instruction” or to counsel’s obligations as resulting in reversible error.

[29] Finally, in holding that the instruction was appropriate, I do not suggest that it was mandatory. In any trial, there are many factors which can potentially affect the credibility of witnesses. A trial judge is not obliged to refer to each and every one. Trial judges are given considerable latitude in deciding how best to assist juries in assessing the credibility of witnesses. The instructions given here were within the scope of that broad latitude.

The admissibility of evidence that the witnesses Collins and France had committed perjury at the preliminary inquiry.

[30] As outlined earlier in these reasons, Collins and France testified at the preliminary inquiry that they were with the appellants on the night in question and that they had not picked up a female hitchhiker. They later admitted that this evidence was false and pled guilty to perjury. At trial, Collins and France acknowledged that they along with the appellants had picked up a female hitchhiker, and that she was in the vehicle with the appellants after France and Collins got off at Collins’ home. They also testified that they had pled guilty to perjury.

[31] Counsel for Flood submits that the Crown should not have been allowed to elicit evidence from Collins and France that they had pled guilty to perjury arising out of the evidence they had given at the preliminary inquiry. He argues that this evidence amounted to “judicial recognition” that their evidence at the preliminary inquiry was false, and by implication, that their contradictory evidence at trial was true. Counsel describes this as a form of oath helping. This objection was made at trial.

[32] I find it hard to accept that the fact that a witness has committed perjury in the course of the very same criminal proceedings should ever be kept from a jury who is being asked to weigh that witness’s evidence.

[33] In any event, counsel’s argument is misplaced on the facts of this case. By the time Paris had completed his evidence, the thrust of the evidence given by Collins and France was no longer in serious dispute. Paris acknowledged that he, Flood, Collins, and France had picked up the complainant and that after Collins and France had left the vehicle, he and Flood drove away with the complainant. Counsel for Flood did not challenge this part of Paris’ evidence. He could hardly be expected to do so since Paris’ evidence, if believed, exonerated Flood.

[34] Despite some of the submissions concerning the credibility of France and Collins made by counsel for Flood in his closing address, the parts of their evidence that implicated Flood were not contentious by the end of the evidence. Any claim that the credibility of France and Collins was improperly bolstered is of no significance to the ultimate result. I would reject this ground of appeal.

The alleged infringement of Paris’ right to silence and the adequacy of the trial judge’s instruction.

[35] The evidence of Paris that Flood was not involved in the sexual activity at the gravel pit understandably came as a surprise to Crown counsel, given the cross-examination of the complainant. Crown counsel conducted an effective cross-examination of Paris during which he demonstrated significant inherent improbabilities in Paris’ evidence. Unfortunately, however, he also chose to cross-examine Paris about his failure to advise the authorities that Flood was not involved in the sexual activity. Crown counsel’s questions were directed both to Paris’ failure to refer to Flood’s absence in his initial statement to the police and his failure to tell the authorities at any time prior to trial that Flood was not involved. The tenor of this part of the cross-examination is captured in the following two extracts:

Q. But you do not say anything to clear Grant Flood and tell people that he was not there – I mean the authorities – until right now, right?

A. That’s right.

Q. You’re sure causing your friend a lot of grief here?

A. I’m not his lawyer.

Q But, you have the truth, according to you, in your knowledge?

A. That’s right.

Q. He wasn’t there, right?

A. Yes sir.

Q. And you don’t tell one person in authority that he wasn’t there, he got dropped off, there was nobody else there, until this very day, right?

A. That’s right.

Q. What you do is, you say to the Police when they ask you whether you want to say anything, right, “That’s not the way it happened. That’s all I want to say.”, right?

A. Yes.

Q. Okay. You don’t say “That’s not the way it happened. And by the way, Grant Flood wasn’t there. That’s all I want to say.”, do you?

A. No, I didn’t.

Q. No. And you want this jury to believe that Grant Flood was not there, right?

A. He wasn’t.

Q. I suggest to you he was?

A. He wasn’t.

Q. If you had dropped Flood off and he wasn’t part of this equation at all, your friend, you would have told somebody in authority a lot sooner than what you told this court today?

A. I told my lawyer in the beginning and he told me not to say anything to anybody about it.

Q. Your buddy, Flood, right, on the hook for three years, according to your version, when the girl puts two of you there, right?

A. Yes.

Q. You don’t get him off the hook until today, or at least try to?

A. Off the hook?

Q. Off the hook for this charge. You’re protecting him?

A. No, I’m not. [Emphasis added.]

[36] As these passages demonstrate, Paris said that he had not told the authorities anything about Flood because his lawyer had told him not to say anything. Counsel did not object to any of the questions concerning Paris’ failure to advise the authorities that Flood was not involved.

[37] In his closing address, counsel for the Crown returned to the theme developed in his cross-examination. He said:

…Paris is clearly lying when he says this. Why else would he wait over three years to tell the authorities that his best friend Flood, was not even there? Why would he, instead, choose to tell the Police on arrest, “That’s not the way it happened. That’s all I want to say.”? Why would he not have added, “Flood wasn’t even there. Flood was not even there.”

[38] After Crown counsel had addressed the jury, counsel for Paris objected to the submissions based on Paris’ failure to tell the authorities about Flood’s non-involvement. The trial judge said that he would tell the jury that Paris had no legal duty to speak to the authorities. Neither counsel for Paris nor Flood suggested that any further instruction was necessary.

[39] The trial judge provided the following instruction:

… I note that it arose in cross-examination of Mr. Paris, that he said he knew since 1995, that Mr. Flood was not at the Ardagh Pits, but said nothing to the police about it. Mr. Paris’ response to you, was that he wasn’t Mr. Flood’s lawyer. I instruct you, as a matter of law, that there is no duty in law, on Mr. Paris, nor was there at any time, to tell police anything about Mr. Flood’s whereabouts that night.

[40] Paris submits that the instruction did not go far enough. He argues that the jury should have been told that Paris had a right to refrain from telling the authorities anything and that no adverse inference with respect to his credibility could be drawn from his failure to advise the authorities that Flood was not involved.

[41] If an accused testifies, he may be cross-examined on prior statements, assuming those statements have been admitted into evidence. Paris made a statement when he was arrested and it was admitted into evidence. It is arguable that he could be cross-examined on his failure to mention Flood’s non-involvement in the sexual activity without trespassing on the right to silence. Even if that cross-examination were permissible, however, it could have little value. There is no evidence when Paris made his statement that he was aware that it was alleged that Flood was involved in the assault. Flood was not charged until three or four days later.

[42] It is also arguable that Paris’ statement to the police was no more than an assertion of his right to silence and should not have been the subject of cross-examination. Crown counsel was venturing on to dangerous ground when he chose to cross-examine Paris on omissions in that statement. He should not have proceeded with that cross-examination without first obtaining a ruling as to the propriety of the questions he proposed to put to Paris. The trial judge could then have determined whether the cross-examination would infringe Paris’ right to silence.

[43] Apart from the questions directed at Paris’ statement to the police, the questions concerning Paris’ failure to tell the authorities about Flood’s non-involvement at any time prior to trial were clearly improper and created the risk that the jury would use Paris’ failure to speak to the authorities against him: R. v. Chambers (1990), 1990 47 (SCC), 59 C.C.C. (3d) 321 at 338-344 (S.C.C.); R. v. Poirier (2000), 2000 3294 (ON CA), 146 C.C.C. (3d) 436 (Ont. C.A).

[44] This ground of appeal turns on whether the trial judge’s instructions adequately protected against the jury drawing an improper inference from the Crown’s questions concerning Paris’ failure to disclose Flood’s non-involvement prior to trial. Ideally, the instructions should have included the points raised by counsel for Paris in this court. Those submissions were unfortunately not made to the trial judge. It would have been preferable had the jury been told that the questions should not have been asked and that Paris’ failure to speak to the authorities could play no role in their determination of the case.

[45] Every non-direction does not, however, amount to reversible error. The trial judge told the jury that as a matter of law, Paris was not obliged to say anything. Paris had testified that he did not say anything to the authorities because his lawyer told him not to say anything. In my view, the jury would reasonably take from the trial judge’s instructions, and Paris’ answers to Crown counsel’s questions, that Paris followed his lawyer’s advice and that the advice was proper advice in the eyes of the law. I do not think that a jury would draw any adverse inference against Paris for following perfectly proper advice given to him by his lawyer. I am satisfied that the trial judge’s instructions adequately protected against the potential miscarriage of justice occasioned by Crown counsel’s improper questions.

[46] Counsel for Flood argued that the jury might draw an adverse inference against Flood based on the improper questions put to Paris. The logic of this submission escapes me. In any event, as I am satisfied that the jury would not draw an adverse inference against Paris, I see no basis upon which to hold that they would draw an adverse inference against Flood.

IV

[47] I would dismiss the appeals.

Released: “DD”

“Dec. 11, 2000”

“Doherty J.A.”

“I agree M.J. Moldaver J.A.”

“I agree Robert J. Sharpe J.A.”

• The order protecting the identity of the complainant made at trial under s. 486(3) remains in force and applies to these reasons.