DATE: 20020121 DOCKET: C35261
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and– JAMES PAGE (Appellant)
BEFORE:
FINLAYSON, CARTHY and WEILER JJ.A.
COUNSEL:
Gregory Lafontaine, for the appellant
Philip Perlmutter, for the respondent
HEARD:
January 15, 2002
On appeal from the convictions imposed by Justice Peter B. Tobias, sitting with a jury, dated December 10, 1999, and from the sentence imposed by Justice Tobias dated February 3, 2000.
E N D O R S E M E N T
[1] Following a trial by judge and jury, the appellant was convicted of two counts of indecent assault and three counts of gross indecency. He was sentenced to eighteen months consecutive on each count for a total of 7½ years. The appellant appeals both his convictions and the sentence imposed.
[2] The appellant raises several grounds of appeal relating to the judge's charge to the jury. We agree that the cumulative effect of the errors in the charge is that a new trial must be ordered. The trial judge's charge was given on December 10, 1999, more than two years after the Supreme Court's decision in Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.). Unfortunately, the trial judge's charge departed from Lifchus in a number of respects. The trial judge also failed to adequately relate the position of the defence to the jury. The trial judge told the jury that the position of the defendant was a denial of the crimes with which he was charged. He did not tell the jury that the defence position was that it was implausible the acts alleged occurred nor relate the evidence led in support of that position. Nor did he indicate that the defence alleged the evidence of one of the complainants may have been influenced by a book she had read and counselling she had taken or that there was a possibility of collusion.
[3] A further error is that the charge failed to caution the jury against propensity reasoning and to tell the jurors what evidence applied to each of the counts. (This was required because the Crown did not bring an application to have the evidence of the complainants treated as similar act evidence.) In particular, the trial judge did not tell the jury that they could not use the evidence of the complainant, Melissa, if they believed it, as evidence in relation to the other two complainants, Tammy and Lance.
[4] Having regard to the nature and number of errors in the charge to the jury, this is not a case to which the curative provisions of s. 686(1)(b)(iii) can be applied.
[5] The appellant also submits that the Crown's cross-examination was improper in that the Crown asked the appellant whether he understood the oath, asked him to agree that the case against him was a conspiracy to falsely accuse him, asked him whether all four Crown witnesses were lying, referred to the evidence of the appellant as a story, and was sarcastic in a number of respects. The Crown concedes that the cross-examination was flawed but says that it was not so flawed as to affect the fairness of the appellant's trial. We disagree and would also order a new trial on this ground.
[6] A further ground of appeal relates to the admissibility of the expert evidence called by the Crown to explain the delay in disclosure of the complainants' allegations. The judgment of this court in D. (D.), delivered in October 1998 and reported at (1999) 1998 14607 (ON CA), 129 C.C.C. (3d) 506, subsequently affirmed (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.), preceded the trial by more than a year. That decision made it clear that evidence of this nature fails to meet with the necessity requirement for expert evidence, is potentially prejudicial to the defence and is more properly the subject of a jury instruction that no adverse inference is to be drawn from the lack of timely disclosure.
[7] In the circumstances, it is unnecessary to deal with the sentence appeal.
[8] For all these reasons, the appeal as to conviction is allowed, the conviction is set aside and a new trial is ordered.
SIGNED BY: "G. D. Finlayson J.A."
"J. J. Carthy J.A."
"K. M. Weiler J.A."