DATE: 20021105 DOCKET: C30510

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) - and - SAUL MARKMAN (Appellant)

BEFORE: McMURTRY C.J.O., MOLDAVER and MacPHERSON JJ.A.

COUNSEL: Charles Beall For the appellant Sandra Kingston and David Lepofsky For the respondent

HEARD: OCTOBER 28, 2002

E N D O R S E M E N T

(Released Orally October 28, 2002)

[1] [1] Our function is not to retry this case. The trial judge gave adequate reasons for disbelieving the appellant and refusing to give effect to the defence position that the complainant’s evidence was the product of false memory, induced by improper treatment methods on the part of her treating psychiatrist.

[2] [2] As regards the latter, although the appellant puts much stock in the evidence of Doctors Merskey and Carr, we agree with the Crown that their opinions rest on the shakiest of evidentiary foundations and to the extent their evidence was admissible at all, the trial judge was on solid ground in concluding that it deserved little, if any, weight. It follows, in our view, that the trial judge did not err in refusing to order the disclosure of all of Dr. Cote-Beck’s treatment records. To do so in the circumstances would have allowed the defence to engage in an impermissible fishing expedition.

[1] [3] We also see no merit in the submission that the trial judge erred in allowing the Crown to call Dr. Cote-Beck in reply. The record is clear that the defence did not raise the false memory issue with the complainant and, in our view, it was not a live issue at the end of the Crown’s case in-chief. It only became a live issue in the defence case and the trial judge was therefore correct in permitting the Crown to call Dr. Cote-Beck in reply. Additionally, we note that because this was not a jury trial, the concerns that arise from allowing the Crown to split its case take on far less significance.

[2] [4] Finally, in view of our assessment of the false memory issue and the weakness of the evidence led in support of it, the trial judge did not err in acting on the complainant’s evidence in the absence of further or better confirmatory evidence. The trial judge was alive to the frailties in the complainant’s evidence, many of which went to details that in his view took on less significance given the historical nature of the offence. In the circumstances, we are not persuaded that he erred in the manner in which he assessed the complainant’s credibility or the reliability of her testimony.

[3] [5] We also reject the appellant’s submission that the trial judge’s verdict in acquitting him of sexual assault with a weapon is inconsistent with the verdicts of guilt for the offences of sexual assault and unlawful confinement. According to the appellant, the verdicts are inconsistent because “the scissors were an integral part of the complainant’s story” and “inextricably bound up with the elements of the offence.” With respect, we disagree. The acquittal on the weapons charge does not mean that the trial judge disbelieved the complainant’s evidence about the scissors. He may well have been satisfied that she was probably telling the truth but that on the evidence before him, he could not be satisfied of this beyond a reasonable doubt, thereby necessitating an acquittal on the weapons charge.

[4] [6] With respect to the fresh evidence tendered by the appellant, we question whether the testimony of the complainant and her former husband is admissible since it is hearsay evidence in its present form and the appellant has not shown necessity. In other words, no explanation has been offered as to why the complainant and her former husband have not sworn affidavits and subjected themselves to cross examination. This, in turn, would render the further evidence of Doctors Merskey and Carr inadmissible.

[5] [7] We prefer, however, not to deal with this aspect of the appeal on a technical basis. Had we been of the view that the evidence was necessary in the interests of justice to avoid a miscarriage of justice, we would not have let its form stand in our way. Ironically, in this case, the fresh evidence proposed by the appellant adds much of the confirmation to the complainant’s evidence that the appellant submits was missing at trial. In particular, it accounts for the time frame within which the offence most likely occurred, and the full name of the patient whom the complainant and the appellant were discussing immediately before the sexual assault took place.

[6] [8] As for the evidence of the former husband, we are not satisfied that it is fresh evidence but even if it is, there are many reasons why at this time he would not want to admit what the complainant claims she told him.

[7] [9] Finally, the proposed fresh evidence of Doctors Merskey and Carr adds little to what they said at trial and, in any event, their evidence is amply rebutted by the evidence that Dr. Klassen would give on behalf of the Crown if a new trial was ordered.

[8] [10] In summary, it is our view that the admission of the fresh evidence would not assist the appellant in any respect in terms of preventing a miscarriage of justice and its exclusion occasions no prejudice to him. Accordingly, we would not admit the fresh evidence and for the reasons stated, we would dismiss the appeal from conviction.

Signed: “R. Roy McMurtry C.J.O.”

“ M. J. Moldaver J.A.”

“J. C. MacPherson J.A.”