COURT OF APPEAL FOR ONTARIO
- DATE: 20020417 DOCKET: C34584
RE:
HER MAJESTY THE QUEEN (Respondent) and JOHN GUY BRADFORD (Appellant)
BEFORE:
CATZMAN, BORINS, and SIMMONS JJ.A.
COUNSEL:
Marie Henein and Melanie Dunn
For the appellants
Laura Hodgson
For the respondent
HEARD:
January 22, 2002
On appeal from his conviction by Justice Allen Whitten, sitting with a jury, on May 17, 2000, and from the sentence imposed on July 11, 2000.
E N D O R S E M E N T
[1] The appellant was convicted of indecent assault following a trial before Whitten J. sitting with a jury. He was sentenced to serve a conditional sentence of two years less a day under a form of house arrest. He appeals against both conviction and sentence.
[2] The complainant was 29 years old at the time of the trial. She testified that she recalled three occasions, when she was between the ages of five and nine years old, on which the appellant indecently assaulted her. She said that the appellant put his hand underneath her underwear and touched her in the vaginal area on each occasion, and that he digitally penetrated her on two of those occasions. The complainant also said that the appellant kissed her on several occasions in a manner that she described as necking.
[3] The complainant said that the first incident took place while she was riding with the appellant in a small sports car on the way to a cottage, and that the other two incidents occurred at his medical office. At the time, the appellant was her doctor and her mother’s boyfriend.
[4] The complainant testified that she does not recall telling anyone about these incidents until she confided in a girlfriend at age thirteen. She said that she has been told that she told her father, but she does not recall that.
[5] The complainant did not describe any incidents of vaginal touching occurring at her home, however, her older sister described walking into the living room on one occasion and seeing the appellant with his hand down the back of the complainant’s underwear.
[6] The complainant’s sister testified that she heard the complainant verify to their father that the incident the sister said she witnessed in the living room had occurred. The complainant’s father did not confirm that statement, but did say that the complainant told him about the appellant giving her wet kisses and putting his hand under her nightgown in her bedroom.
[7] The defence position at trial was that the complainant’s father blamed the appellant for breaking up his marriage, and that, whether intentionally or not, he questioned the complainant in a manner that suggested inappropriate contact when he asked her about her dealings with the appellant.
[8] The appellant raised the following grounds of appeal:
the trial judge erred in law by failing to grant the appellant’s application for a change of venue based on pre-trial publicity;
the trial judge erred in his instructions to the jury concerning the use to be made of prior consistent statements;
the trial judge erred in instructing the jury that inconsistencies between the complainant and other witnesses may be taken as a sign of credibility;
the trial judge erred in his instructions to the jury by mischaracterizing the position of the defence and in failing to put the defence position to the jury fairly;
the verdict was unreasonable; and
the trial judge erred in law by imposing a sentence that was harsh and excessive in the circumstances.
[9] In light of our conclusion that a new trial is required based on the second, third, and fourth grounds of appeal, it is unnecessary that we deal with the first ground of appeal relating to the change of venue application. However, this determination does not preclude the defence from seeking a change of venue at the time of any subsequent trial.
[10] In our view, there was evidence before the jury capable of supporting a finding of guilt based on the testimony of the complainant and the evidence of opportunity. We would not give effect to the appellant’s claim that the verdict was unreasonable.
[11] The second, third, and fourth grounds of appeal are inter-related. Portions of the trial judge’s instructions to the jury on these issues are set out below [the paragraphs have been lettered for ease of reference]:
(a) The Crown asserts that [the complainant] is a believable, mature woman who has truthfully testified as to what she said happened to her at the hands of Mr. Bradford, as a child. Furthermore, her sister’s evidence is confirmatory as to what she says happened to her. Her father says she revealed to him the assaultive behaviour of Mr. Bradford. [The complainant] herself says that she disclosed to her [girl]friend… Now with respect to those two witnesses, whatever they say that [the complainant] said to them cannot be used by you as being evidence of the truth of what [she] said, but rather can only be used by you as conduct consistent with what she asserts. In other words, the fact that she had complained could be considered by you as consistent with what she said happened to her. The reason that you cannot consider the actual content as being truthful is the fact that the repetition of an account does not make it per se truthful. In order to make such a use, i.e. with respect to whether or not it confirms the existence of the event in the first place, you have to be satisfied that such a complaint was made.
(b) She says she tells no one except at age 13 she tells [a girlfriend] …
(c) …Her father had asked her about kissing, but she does not know when that questioning took place or where. And there was a second time that her father asked, at which time he asked her a general question about whether or not Mr. Bradford had been inappropriate with her, and she said no. She talks about her sister being present.
(d) With respect to the incidents in his office … she confirms that she did not tell her father.
(e) In cross-examination [the complainant’s sister] acknowledged that her father had asked her what she had observed between Mr. Bradford and [the complainant]. He asked a couple of things. On one occasion he asked whether or not Mr. Bradford had been around and then on another occasion he asked had Mr. Bradford ever touched herself or [the complainant], and she told about [the complainant]. Now, she doesn’t recall her sister being there, but she does recall her sister confirming.
(f) …As I indicated at the outset, what [the complainant’s sister] says she overheard [the complainant] say to her father cannot be used by you for the truth of what [the complainant’s sister] says [the complainant] said, but simply for the fact that [the complainant] complained, a phenomena which is consistent with her being assaulted.
(g) It is for you to decide whether there was any suggestibility in the questioning by him of his daughter. Consider, one, that [the complainant’s father] says [the complainant’s sister] said she did not tell him what she saw. Two, [the complainant’s father] says [the complainant] told him about an incident with her nightgown. Three, [the complainant] says she didn’t tell him. Four, [the complainant’s sister] cannot remember what her father asked. Five, nobody acted on whatever was said. If there was suggestibility, you would think that a pattern would emerge somehow. If anything, the lack of consistency between who said what goes against the idea of contrivance and concerted action. The inconsistencies themselves may be taken as a sign of credibility because I am sure if the account dovetailed, then one would wonder if this was a concerted action. Mind you, the inconsistencies of all these accounts could be used by you as a mark against credibility. Again, if you accept [the complainant’s father’s] evidence with respect to what [the complainant] told him, and the fact that it was said, you cannot use it for the truth of what he says was said by her but only for the fact that she uttered a complaint, a fact which may be consistent with her being assaulted. [emphasis and lettering added]
Instructions Concerning the Use to be Made of Prior Consistent Statements
[12] In our view, the instructions to the jury concerning prior consistent statements are deficient in at least two respects.
[13] First, the instructions failed to differentiate between evidence of complaints admitted solely for the purpose of narrative and evidence of complaints admitted for another purpose.
[14] In particular, we see no basis for using the evidence of the disclosure to the complainant’s girlfriend at age thirteen referred to in paragraph (a) of the instructions other than for the purpose of narrative. As such, the evidence of that disclosure could not be used either for the purpose of proving the truth of its content, or as “conduct consistent with the complainant’s story”. The instructions failed to make this distinction.
[15] Second, although differentiating between use of evidence of prior complaints for the purpose of proving the truth of their content and use of that evidence for the purpose of proving the fact of complaint, the instructions failed to adequately explain to the jury how to use evidence of the fact of complaint. Specifically, the instructions that evidence of prior statements could only be used as “conduct consistent with what she asserts” as set out in paragraph (a) of the instructions, or, as being “consistent with her being assaulted” as set out in paragraph (g) of the instructions, are insufficient to assist the jury in understanding how to use the evidence of prior complaints without infringing the prohibition against using it for the purpose of proving the truth of its content.
[16] Aside from narrative, the authorities recognize two other potential uses of such evidence that may be applicable on the facts of this case. The first is to rebut an allegation of recent fabrication. When used for this purpose, evidence of a complaint made prior to the date on which it is alleged fabrication began that is consistent with the complainant’s allegations at trial demonstrates “conduct consistent with the complainant’s story”. Evidence of the fact of a prior consistent complaint is useful, not for the purpose of proving its truth, but because it rebuts the allegation of fabrication.
[17] Here, the defence alleged that the complainant essentially invented her version of the events in response to suggestive questioning by her father. In order to use the evidence of prior complaint properly, as a potential response to this allegation, it was critical that the jury understand that they had to be satisfied, not only that such a complaint was made, but also, that it was made prior to the alleged suggestive questioning, and that it was consistent with the complainant’s allegations at trial. The evidence could not be used to demonstrate “conduct consistent with the complainant’s story” at large, but only for the purpose of assessing its impact on the allegation of recent fabrication.
[18] Without commenting on whether the evidence adduced in this case even met the threshold for admissibility, two important limitations on its use were not explained to the jury.
[19] The second possible use of evidence of the fact of complaint is to show “conduct consistent with an honest complainant” where delay in complaining is relied on by the defence as a challenge to the complainant’s credibility. In determining whether the jury instructions given in this case were adequate to explain that purpose, it is useful to recall that prior to the abrogation of the rules against evidence of “recent complaint”, evidence of recent complaint was admissible to enable “the jury to judge for themselves whether the conduct of a woman … was consistent with her evidence given under oath in the witness-stand … and in accordance with the conduct they would expect of a truthful woman under the circumstances detailed by her”: R. v. F. (J.E.) (1993), 1993 3384 (ON CA), 85 C.C.C. (3d) 457 (C.A.) at 468 per Finlayson J.A.
[20] The rule permitting the Crown to adduce evidence of timely complaint as part of its case in chief ceased to exist when the rules relating to evidence of recent complaint were abrogated. Evidence of a prior complaint may nevertheless become admissible where the defence is “an … attack on credibility” in circumstances that render “evidence of complaint or the absence of complaint … relevant and admissible”: R. v. Lajoie, [1993] O.J. No. 429 (Ont. C.A.).
[21] In the face of an attack on credibility based on failure to complain, evidence of a complaint made at an earlier point prior to trial may assist the jury in assessing the credibility of the complainant. The jury may, or may not, consider it likely that an honest complainant would have complained in particular circumstances. In this sense, a jury may find the fact of a complaint consistent with a complainant’s story, or, put another way, consistent with her being assaulted. Unfortunately, however, this rationale for using the evidence was never explained to the jury.
[22] Absent explanation, instructions inviting the jury to use evidence of the fact of complaint “as conduct consistent with what [the complainant] said happened to her”, are, at best, confusing. More significantly, however, they have the potential to mislead the jury into using the evidence for a prohibited purpose, namely, to prove the truth of its content.
Jury Instructions Concerning Inconsistencies Between the Complainant and other Witnesses
[23] We agree with the appellant’s submission that the trial judge erred by instructing the jury at paragraph (g) that inconsistency between the complainant and other witnesses could be taken as a sign of credibility. The existence of inconsistencies between the testimony of various witnesses may assist a jury in assessing credibility by rebutting an allegation of collaboration. The simple presence of inconsistencies standing alone is not a sign of credibility.
Jury Instructions Concerning the Position of the Defence
[24] The references to contrivance and concerted action in paragraph (g) of the jury instructions overstated the defence position that the complainant’s father, whether intentionally or not, questioned her in a suggestive manner.
[25] Although perhaps not a serious error when viewed in the light of the references to suggestibility elsewhere in the jury instructions, in our view, the cumulative effect of the three errors we have identified requires that we order a new trial. The errors relating to prior consistent statements are serious standing alone. The added impact of the additional errors makes it impossible for us to say that they could not possibly have affected the verdict. Given the historical nature of the charges and the paucity of confirming evidence, the Crown’s case cannot be characterized as overwhelming.
Disposition
[26] For the reasons given, the appeal against conviction is allowed and a new trial is ordered.
_____ “M.A. Catzman J.A.”
_____ “S. Borins J.A.”
_____ “Janet Simmons J.A.”