Court of Appeal for Ontario

DATE: 20010522

DOCKET: C34437

RE: HER MAJESTY THE QUEEN (Respondent) v. ALAN LAKE (Appellant)

BEFORE: FINLAYSON, CARTHY and SIMMONS JJ.A.

COUNSEL: Timothy E. Breen for the appellant Riun Shandler for the respondent

HEARD: May 15, 2001

RELEASED ORALLY: May 15, 2001

On appeal from the conviction imposed by Justice Alan C.R. Whitten, with a jury, dated June 30, 1999.

ENDORSEMENT

[1] The appellant was convicted of sexual assault. He appeals arguing that there was a perception of bias on the part of the trial judge arising out of his former professional relationship with the appellant. He also argues that there were serious misdirections in the trial judge’s instructions to the jury.

[2] The trial judge had been in partnership with his wife and the partnership had acted for the appellant with reference to his earlier conviction on the very charge of sexual assault that is before us today. His wife had represented the appellant as counsel on an application to this court for interim release pending the hearing of his appeal. For his part, the trial judge had docketed five hours of his time in preparing and writing an opinion letter to Legal Aid for the purpose of obtaining legal aid funding. The ultimate appeal was successful. This court, responding we are told to the arguments suggested by the trial judge in his letter to Legal Aid, quashed the conviction and ordered a new trial. This is the trial that is before us now on a second appeal.

[3] An additional fact is that the trial judge’s former partnership had submitted an account for $1,200 to the appellant for the wife’s legal work and that account was outstanding at the date of this new trial.

[4] The Crown relies upon the consent of the appellant to the trial judge sitting as a waiver of any objection that he can now raise as to bias. Crown counsel also points out that this was a jury trial and accordingly the participation of the trial judge was limited. However, we agree with the appellant that the trial judge erred in failing to remove himself from the case.

[5] The circumstances of the appellant’s prior retainer of the trial judge readily gives rise to a reasonable apprehension of bias: see R. v. Catcheway (2000), 2000 SCC 33, 146 C.C.C. (3d) 97 (S.C.C.) at p. 98. In our opinion, the appellant’s consent to the trial judge presiding at the trial does not relieve against the appearance of bias. In the circumstances of this case, the responsibility for recusing himself lay squarely on the shoulders of the trial judge.

[6] As to the merits of the appeal, we are concerned with the trial judge’s treatment of both the admissibility of evidence as to the demeanour of the complainant at the time she made the complaint to her friend and the directions given by the trial judge as to the use the jury could make of it. The Crown attempted to defend its admission on the basis that it was part of the res gestae. However, given the fact that the emotional outburst on the part of the complainant which accompanied her complaint took place a day after the alleged assault, the expression of demeanour is much too late to be contemporaneous and to be justified as part of the res gestae. The admissibility of this evidence is problematical, but we are more concerned about the lack of a proper limiting instruction to the jury.

[7] Counsel for the appellant conceded that the evidence of the complainant was admissible for the limited purpose of rebutting any inference or defence of recent fabrication. However, there was no limiting instruction to make this clear to the jury. On the contrary, the trial judge exacerbated the problem by citing the following which related to the complaint and to the demeanour of the complainant at the time she made it:

The Crown submits that you should believe her evidence for a variety of reasons; one, it is only logical that what she said happened, because why would she confide or disclose to her close friend and employer, Ms. P., unless it happened? The Crown appropriately states that it is not the responsibility of the defence to provide or prove a motive or reason for Ms. P.V. to fabricate such an account. The Crown states simply that she says what she says because it happened that way. The Crown says she bears the emotional signs attributable to a rape victim. In that regard, I note Ms. P. described P.V. as being very distraught and crying when she described what happened to her. As I mentioned to you before, her observed condition can be considered by you as corroborating or confirming her account.

[8] In our opinion, the failure to give a proper limiting instruction was an error and cannot be overcome by reliance on the proviso in s. 686(1)(b)(iii) of the Criminal Code.

[9] Accordingly, for the two grounds listed above, the appeal is allowed, the conviction is quashed and a new trial is ordered.

Signed: “G.D. Finlayson J.A.”

“J.J. Carthy J.A.”

“J. Simmons J.A.”