Her Majesty the Queen v. Lyttle [Indexed as: R. v. Lyttle]

61 O.R. (3d) 97

[2002] O.J. No. 3308

Docket No. C35234

Court of Appeal for Ontario,

Carthy, Abella and MacPherson JJ.A.

September 3, 2002

• Application for leave to appeal to the Supreme Court of Canada was granted January 23, 2003 (McLachlin C.J., Bastarache and Deschamps JJ.). S.C.C. File No. 29412. S.C.C. Bulletin, 2003, p. 103.

Criminal law -- Trial -- Cross-examination -- Whether counsel must undertake to prove allegations made in cross-examination of non-expert witness -- Trial judge erring in requiring defence counsel to undertake to call police officers as defence witnesses to support assertions made during cross-examination -- Evidentiary rule limited to attacks on opinions of expert witnesses -- Ethical considerations still arise if unsubstantiated allegations are made during cross-examination of non-experts that are not reasonably based information known to counsel and cannot be proven on evidence -- No substantial wrong or miscarriage of justice notwithstanding effect of error on conduct of defence -- Appeal from conviction dismissed -- Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii)

The accused was convicted of robbery, assault, kidnapping and possession of a weapon. The complainant was brutally beaten by five men wielding baseball bats. He told the police that the motive for the vicious assault was to rob him of an expensive gold chain. The first detective, whose involvement was limited to a few hours on the first day of the investigation, had doubts about the complainant's veracity and noted that there might be a drug connection. Another officer also recorded a similar observation in his notes. The Crown advised the trial judge that the prosecution was not planning to call either officer. The Crown was concerned about the possibility that defence counsel might suggest to witnesses that the real motive for the crime was drug related and that the complainant falsely identified the accused as one of his attackers in order to protect associates in the drug trade. The trial judge asked defence counsel to undertake to call the two police officers but that suggestion was initially declined. When the matter was raised again, defence counsel gave the undertaking. Another police officer, called as part of the Crown's case, conceded during cross-examination that the complainant had a prior drug conviction and that the severity of the beating was out of proportion for what one would typically see in a robbery but was typical of the kinds of vicious assaults inflicted by drug gangsters. Defence counsel then attempted to renege from the undertaking but ultimately was required to call the two officers. As the accused had called evidence, defence counsel was required to address the jury before the Crown. The accused appealed arguing that the trial judge erred in requiring the undertaking that altered the conduct of the defence by inhibiting cross-examination, requiring him to call the officers as defence witnesses and by depriving him of the right to make the last address to the jury.

Held, the appeal should be dismissed.

The strict requirement that counsel cannot make a suggestion to a witness that counsel cannot directly prove applies only to the cross-examination of expert witnesses. An expert's opinion should not be undermined by mere innuendo. Although there may not be an evidentiary rule barring counsel from putting suggestions to non-experts that counsel cannot prove directly, ethical considerations may arise. Law Society rules prevent counsel from knowingly making assertions for which there is no reasonable basis either in the evidence or in information available to counsel. The trial judge erred in requiring defence counsel to make the undertaking and call the police officers as defence witnesses. [page98]

On appeal, the accused argued that the erroneous ruling violated the principle of fundamental justice that provides for the right to control one's defence, and that a new trial must be ordered as a result. Although the trial judge's ruling altered the manner in which the defence was conducted, the question of what remedy the accused should receive turns on whether the error resulted in a substantial wrong or miscarriage of justice. There is no suggestion that the form or quality of the evidence was altered by the manner in which it was adduced. The jury had before it the evidence that the complainant was involved with a drug deal. If a new trial were ordered, the new jury would hear essentially the same evidence.

There is no indication in the addresses to the jury that there was an advantage arising to either party from the order in which they were delivered. In any event, as defence counsel wished to use the contents of the officers' notes to buttress her allegations about the complainant's drug connections, she would have had to call the officers as witnesses to prove the notes before the notes could be used to cross-examine the complainant, regardless of the trial judge's erroneous ruling. This is an appropriate case for the use of the proviso contained in s. 686(1)(b)(iii).

APPEAL from a conviction for robbery, assault, kidnapping and possession of a weapon.

R. v. Bencardino (1973), 1973 804 (ON CA), 2 O.R. (2d) 351, 15 C.C.C. (2d) 342, 24 C.R.N.S. 173 (C.A.); R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293, 49 B.C.L.R. (2d) 299, 119 N.R. 321, [1990] 6 W.W.R. 554, 59 C.C.C. (3d) 321, 80 C.R. (3d) 235; R. v. Howard, 1989 99 (SCC), [1989] 1 S.C.R. 1337, 34 O.A.C. 81, 96 N.R. 81, 48 C.C.C. (3d) 38, 69 C.R. (3d) 193, consd Other cases referred to Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466, 7 B.C.L.R. (2d) 273, 33 D.L.R. (4th) 267, 71 N.R. 61, [1987] 1 W.W.R. 97, 29 C.C.C. (3d) 385, 14 C.P.C. (2d) 156, 54 C.R. (3d) 294 (sub nom. R. v. Krause); R. v. Aalders, 1993 99 (SCC), [1993] 2 S.C.R. 482, [1993] S.C.J. No. 67 (QL), 103 D.L.R. (4th) 700, 154 N.R. 161, 82 C.C.C. (3d) 215, 21 C.R. (4th) 141; R. v. D. (C.) (2000), 2000 5730 (ON CA), 145 C.C.C. (3d) 290 (Ont. C.A.); R. v. Fiquia, [1993] A.J. No. 959 (Quicklaw) (C.A.); R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, 47 O.A.C. 81, 125 N.R. 1, 3 C.R.R. (2d) 1, 63 C.C.C. (3d) 481, 5 C.R. (4th) 253 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii) Authorities referred to Campbell, K.L., "Limits on the Scope of Cross-Examination" Ontario Court of Justice, Spring Educational Conference, April 2000 Gover, B.J., "Annotation to R. v. Howard" (1989), 69 C.R. (3d) 193 Sopinka, J., S.N. Lederman and A.W. Bryant, Law of Evidence in Canada, 2nd ed. (Markham, Ont.: Butterworths, 1999)

David M. Tanovich, for appellant. S. Hallett, for respondent.

The judgment of the court was delivered by

[1] CARTHY J.A.: -- The appellant was convicted of robbery, assault, kidnapping and possession of a weapon after trial before [page99] a judge and jury. His appeal against conviction is entirely based upon the trial judge's ruling that certain questions could only be put to Crown witnesses by the defence if an undertaking was given to call evidence to give factual support to the implications raised by the questions.

[2] The appellant's position is that the evidentiary directive of Lamer J. in R. v. Howard, 1989 99 (SCC), [1989] 1 S.C.R. 1337, 48 C.C.C. (3d) 38 at p. 1347 S.C.R., p. 46 C.C.C., reading

It is not open to the examiner or cross-examiner to put as a fact, or even a hypothetical fact, that which is not and will not become part of the case as admissible evidence. On this ground alone, the question should have been denied.

should be confined to questions put to expert witnesses and that its application to this case fundamentally altered the presentation of the defence.

[3] The complainant in this case was brutally beaten by five men with baseball bats, four of whom where said to be masked. He eventually identified the accused as the unmasked attacker. The victim said that the reason for the beating was to recover a $7,000 gold chain which the assailants said he had stolen.

[4] The main thrust of the defence was that this was a drug deal that had gone awry and that the victim was falsely accusing him in order to protect associates in a drug ring and avoid the recriminations that would follow from exposing them.

[5] The victim was first interviewed in the hospital by Detective Lawson who noted on his occurrence report "[b]elieved to be drug debt and the victim less than truthful". That was Detective Lawson's only involvement in the case, being off-duty for the next four days. His report was summarized in a general report by Detective/Sergeant Ganson with the observation "believed to be a drug debt, further inquiries" and came into the hands of the officers who continued the investigation to completion -- Detectives Korb and Ottaway. When Detective/ Sergeant Ganson eventually gave his evidence at trial, he explained the reasons for his remarks. The victim had a drug conviction, the beating was akin to torture and out of proportion to being motivated by the theft of a chain, four of the assailants wore balaclavas and the victim had been tied up and hosed down with water -- all smacking of drug gangsterism. Detective Lawson's evidence was to the same effect.

[6] At the outset of the trial the Crown announced that he would not be calling Detective Lawson or Detective/Sergeant Ganson as witnesses. He was concerned by the apparent intent of defence counsel to ask questions of the complainant suggesting that this was in truth a drug deal and a false identification. The [page100] trial judge's initial reaction was to seek counsel's undertaking to call substantive evidence to support any suggestions put to a witness. When this was not forthcoming, the trial judge stated that if supportive evidence was not called to give substance to, and provide a warrant for, questions, he would declare a mistrial for non-compliance with the rule in Howard. At a later point in the trial, as defence counsel continued to press her position in aid of pursuing the drug scenario, the trial judge decided to hold a voir dire of the evidence of Lawson and Ottaway to determine if there was evidence available to support the defence theory. At the conclusion of the voir dire, and in submissions relating to the same issue, defence counsel gave an undertaking to call Lawson and Ganson if the Crown failed to do so. It is not clear from the transcript why defence counsel made this undertaking at this stage, but she certainly had plenty of reason from previous rulings by the trial judge to predict that there would be no change in his interpretation of Howard and that the best she could accomplish was to convince the trial judge that Detective Lawson's report was substantive support for questions she intended to put to earlier witnesses.

[7] The trial judge thereupon ruled that defence counsel was free to ask questions related to a drug deal. In doing so, he put aside Crown counsel's objection that such questions put to Detectives Korb and Ottaway would be offensive as hearsay. This did not concern the trial judge because, pursuant to the undertaking, the reports were eventually to be proved by their authors. Thus, defence counsel put the reports to Detective Korb, asking him how they affected his investigation. His reply was, "not at all". The drug scenario was also put to the complainant who denied all suggestions.

[8] At the conclusion of the Crown's case, defence counsel first attempted to resile from the undertaking, saying that she wished to preserve the right to argue last and was satisfied with "getting this stuff out through Korb". That request was refused and was followed by a motion to have the trial judge call Lawson as the court's witness. That too was refused and the defence then called Ganson and Lawson who testified as appears earlier in these reasons as to the basis for their suspicions of a drug deal. In cross-examination, they described this as an initial operating theory or hunch.

[9] On appeal, it is argued that the application of the rule in Howard fundamentally altered the conduct of the defence by inhibiting cross-examination, forcing the defence to call the officers and have them cross-examined by the Crown, and by depriving defence counsel of the final argument to the jury. [page101]

The Legal Issue

[10] In my view, the trial judge was in error in applying the directive of Lamer J. in R. v. Howard to the circumstances that arose in this case. Howard involved questions to an expert witness, who had testified as to a footprint being that of the accused, suggesting that his opinion would change if he knew another person identified it as his footprint and pleaded guilty to the crime. Apparently, the facts behind the questions could not be established in evidence and this was the basis for the extremely broad rule enunciated by Lamer J. It is a sensible rule when applied to expert evidence which must be based on facts that are proved in evidence. If the facts change, the opinion may change, but the opinion shouldn't be sullied with mere innuendo.

[11] Lamer J. could not have been intending to lay down a broad rule encompassing all forms of cross-examination and to be overruling well-established authorities of this court and others without referring to them. The implications of such a strict rule would pervade and restrict all traditional cross- examinations containing any element of speculation.

[12] In fact, one year after the reasons in Howard were released, Lamer C.J.C. concurred in the reasons of Cory J. in R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293, 59 C.C.C. (3d) 321, at p. 1307 S.C.R., p. 334 C.C.C. Cory J. approves of a cross- examination by the Crown suggesting bribery of a witness where there was no means of proving the allegation but the circumstances justified the inference. If Howard was intended to be applied broadly to all cross-examinations, it would have been applied there to the opposite result.

[13] In my view, there was no intention in Howard to overrule R. v. Bencardino (1973), 1973 804 (ON CA), 2 O.R. (2d) 351, 15 C.C.C. (2d) 342 (C.A.). Jessup J.A. stated at p. 356 O.R., p. 347 C.C.C.:

In any event, whatever may be said about the forensic impropriety of the three incidents in cross-examination, I am unable to say any illegality was involved in them. As Lord Radcliffe said in Fox v. General Medical Council, [1960] 1 W.L.R. 1017 at p. 1023:

An advocate is entitled to use his discretion as to whether to put questions in the course of cross-examination which are based on material which he is not in a position to prove directly. The penalty is that, if he gets a denial or some answer that does not suit him, the answer stands against him for what it is worth.

[14] The "forensic impropriety" referred to by Jessup J.A. was elaborated upon by Morden J.A. in R. v. D. (C.) (2000), 2000 5730 (ON CA), 145 C.C.C. (3d) 290 (Ont. C.A.) at pp. 317-18, where he says:

The facts stated in the question were consistent with an important part of the Crown's case -- that the appellant had had sexual contact with T. In [page102] light of R. v. Bencardino (1973), 1973 804 (ON CA), 15 C.C.C. (2d) 342 (Ont. C.A.) at 347, which approved the rule that "[a]n advocate is entitled to use his discretion as to whether to put questions in the course of cross-examination which are based on material which he is not in a position to prove directly" (Fox v. General Medical Council, [1960] 1 W.L.R. 1017 (P.C.) at 1023), I cannot say that there was any "illegality" (Bencardino at p. 347) in the question.

However, counsel may have been entering into a problematic area of ethical responsibility. It is a breach of professional ethics for counsel to "knowingly assert something for which there is no reasonable basis in the evidence, or the admissibility of which must first be established." The Law Society of Upper Canada, Rules of Professional Conduct, r. 10.2(g); Sopinka et al., The Trial of an Action, 2nd ed. (1998), at pp. 96-98 and 126. Professional ethics are involved because the stating of facts for which there is no foundation can, depending on the circumstances, be unfair and affect the fairness of the trial process. If this is so, it may be that the rule in Bencardino should be reconsidered and modified. Sopinka et al, op. cit., at p. 126, note 116 suggests that the Law Society rule "should merely prohibit questions for which there is no foundation in the information available to counsel".

[15] The Alberta Court of Appeal has stated in obiter that Howard overrules Bencardino. See R. v. Fiquia, [1993] A.J. No. 959 (Quicklaw) (C.A.) at p. 9. However, commentators have generally been hesitant to rush to that conclusion. See Kenneth L. Campbell, "Limits on The Scope of Cross-Examination" (Prepared for the Spring Educational Conference for Judges of the Ontario Court of Justice: April, 2000), Brian J. Gover, "Annotation to R. v. Howard" (1989), 1989 99 (SCC), 69 C.R. (3d) 193, Law of Evidence in Canada, Sopinka, Lederman, Bryant, 2nd ed. (Markham, Ont.: Butterworths, 1999), p. 633, footnote 323.

[16] An example of the handcuffs that a restrictive rule would place on cross-examination comes directly from this case. At a recess the trial judge observed:

THE COURT: Just before we leave. Apropos and flowing from my ruling with respect to cross-examination, Ms. Robb, I noticed a number of occasions you put questions to this witness, 1) inquiring as to whether he'd seen a BMW in the driveway; 2) whether he checked the owners of all the cars that they took the license plates from; 3) with respect to whether they saw a Maxima in the driveway; 4) whether Ms. Veta Smith had any outstanding charges for importing and 5) suggesting that there were many other suspects that there [sic] many other suspects that they investigated. These are all questions of the same nature as the one that you wanted to ask with respect to the drug deal situation. I assume you are going to be leading evidence with regard to these various items or there will be evidence coming out. There was no objection taken by your friend and they are not, of course, as egregious or perhaps as important to you [sic] defence as the drug related thing and I've given you the latitude to ask those questions but, you have a tendency to ask questions, take a no answer. We wonder whether there will be evidence down the road to substantiate the finding of a BMW, for instance, in the driveway.

MS. ROBB: Well, Your Honour, I got . . . [page103]

THE COURT: Technically, under the Rule you can't simply leave that hanging as you have.

MR. ROBB: Your Honour, I got that the stolen BMW information out of the Crown's notes, it's somewhere. And Veta Smith was in your court. We all know she was charged.

THE COURT: Well, but the jury doesn't know that.

MR. ROBB: No, no, they don't.

THE COURT: We have to deal in evidence here. We have to -- All I'm saying is that I'd caution you to -- I mean, now that we've had a thorough airing of that particular Rule I'm assuming you're fully familiar with it and the cases that it's supportive. In that short cross-examination, as I say, I counted four or five times where it appears unless there's further evidence coming, those were perhaps improper questions.

[17] One good reason for the Crown not objecting is that these were all perfectly proper and normal inquiries. Some of these questions were directed to collateral issues and, as such, the cross-examiner must live with the answers given, and is barred from adducing evidence to the contrary. See Sopinka and Lederman, 2nd ed., p. 963. This example demonstrates that a broad application of the direction of Lamer J. in Howard would be contradictory of the collateral evidence rule and would effectively eliminate it. That rule is an essential feature of any trial, keeping a focus on the issues and standing in the way of trials within trials.

[18] In Krause v. R., 1986 39 (SCC), [1986] 2 S.C.R. 466, 29 C.C.C. (3d) 385 where the Supreme Court was dealing with the Crown's right of rebuttal, McIntyre J. stated at pp. 474-75 S.C.R., pp. 391-92 C.C.C.:

In the cross-examination of witnesses essentially the same principles apply. Crown counsel in cross-examining an accused are not limited to subjects which are strictly relevant to the essential issues in a case. Counsel are accorded a wide freedom in cross-examination which enable them to test and question the testimony of the witnesses and their credibility. Where something new emerges in cross- examination, which is new in the sense that the Crown had no chance to deal with it in its case-in-chief (i.e., there was no reason for the Crown to anticipate that the matter would arise), and where the matter is concerned with the merits of the case (i.e., it concerns an issue essential for the determination of the case) then the Crown may be allowed to call evidence in rebuttal. Where, however, the new matter is collateral, that is, not determinative of an issue arising in the pleadings or indictment or not relevant to matters which must be proved for [page 392] the determination of the case, no rebuttal will be allowed. An early expression of this proposition is to be found in Attorney-General v. Hitchcock (1847), 1 Ex. 91, 154 E.R. 38, and examples of the application of the principle may be found in R. v. Cargill, [1913] 2 K.B. 271 (C.C.A.); R. v. Hrechuk (1950), 1950 382 (MB CA), 98 C.C.C. 44, 10 C.R. 132, 58 Man. R. 489 (Man. C.A.); R. v. Rafael (1972), 1972 640 (ON CA), 7 C.C.C. (2d) 325, [1972] 3 O.R. 238 (Ont. C.A.), and Latour v. The Queen (1976), 1976 145 (SCC), 33 C.C.C. (2d) 377, 74 D.L.R. (3d) 12, [1978] 1 S.C.R. 361. This is known as the rule against rebuttal on collateral issues. Where it applies, Crown counsel may [page104] cross-examine the accused on the matters raised, but the Crown is bound by the answers given. This is not to say that the Crown or the trier of fact is bound to accept the answers as true. The answer is binding or final only in the sense that rebuttal evidence may not be called in contradiction.

[19] Thus, the general rule is for a broad right of cross- examination unconstrained by direct relevance to issues and then a narrower right, but not a compulsion, to rebut with further evidence if the issue is not collateral.

[20] In my view, Howard cannot be read as altering that general approach to evidence at trial. Further, the Supreme Court affirmed Krause following Howard in R. v. Aalders, 1993 99 (SCC), [1993] 2 S.C.R. 482, [1993] S.C.J. No. 67 (Quicklaw).

[21] I therefore conclude that Lamer J.'s direction in Howard should be restricted to the evidence of experts and that the trial judge was in error in this case to expect an undertaking by defence counsel as the price for asking questions in cross- examination.

Remedy

[22] The appellant seeks a new trial relying on R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, 63 C.C.C. (3d) 481, at p. 976 S.C.R., p. 508 C.C.C. for the proposition that it is a principle of fundamental justice that an accused has the right to control his or her own defence. However, Lamer J. makes it clear that this is not an absolute right and I see no reason to be a slave to it if no substantial wrong or miscarriage of justice has occurred.

[23] The jury heard all of the evidence that the parties sought to present and concluded that the appellant should be convicted. The erroneous rulings may have distorted the manner in which evidence was presented, but I see no suggestion that the form or quality of the evidence was affected by those distortions. For instance, the police evidence called by the defence was full and forthright on the reasons for suspecting a drug scenario and left no room to argue that more could have been accomplished by the ability to cross-examine. In fact, the Crown had no obligation to call those witnesses, with or without the impugned ruling, and if their evidence was to reach the jury, it would have to have been as defence witnesses.

[24] Another way to analyze the question of substantial wrong or miscarriage of justice is to consider what would happen at a new trial. The Crown would call the same witnesses, the defence would be barred from putting the opinions from the reports to Korb and Ottaway, being hearsay with prejudicial potential, and defence counsel would then have to choose between calling the authors of the reports or to argue last before the jury. The determination with which defence counsel pursued the police [page105] suspicions, at least until Korb had been examined, leads me to believe that, absent Korb's evidence on the subject, the defence would have called Lawson and Ottaway, and would do so at a new trial. And there was good reason to put this evidence before the jury. It could not be taken as an expert's opinion, but would certainly elevate and give credence to what might otherwise appear as mere conjecture by defence counsel.

[25] That leaves the issue of the right to go last to the jury which the appellant says was taken from his counsel by the undertaking given under the erroneous ruling. I have read the submissions of counsel to the jury and can recognize nothing in the content of either to signify an advantage from the order of delivery. However, accepting that there was some benefit in arguing last, this followed from the undertaking, not the ruling. Defence counsel gave the undertaking while arguing against the ruling. She gave it with knowledge that if Lawson and Ottaway were to be witnesses they would be defence witnesses. She must have been giving it to enable her to cross- examine Korb on the opinions in the reports. With or without the ruling on ordinary evidence rules she would have to undertake to prove the reports by calling their authors before putting them to another witness. Thus, the links of the chain are the undertaking, the examination of Korb, the calling of defence evidence and arguing first before the jury. The trial judge's error did not impact that sequence -- it was the questions to Korb which forced calling a defence.

[26] For these reasons I would apply s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 and dismiss the appeal.

Appeal dismissed.