DATE: 20040510

DOCKET: C36377

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – THOMAS EDWARD POWELL (Appellant)

BEFORE: ABELLA, MOLDAVER and SIMMONS JJ.A.

COUNSEL: Dennis K. Lenzin For the appellant

Susan Chapman For the respondent

HEARD: May 5, 2004

RELEASED ORALLY: May 5, 2004

On appeal from conviction by Justice Bruce Glass of the Superior Court of Justice, sitting with a jury, on April 26, 2001.

E N D O R S E M E N T

[1] The appellant raises three grounds of appeal against conviction.

The Bell Telephone Records

[2] The trial judge refused to allow the appellant to adduce the telephone records on the basis of the timing of the application and the appellant’s failure to give proper notice. In our view, given the limited probative value of the records, it was open to the trial judge to exercise his discretion in the manner he did. The records would not have been available until the Crown had completed its examination of the complainant. In any event, the complainant admitted in cross-examination that she had accepted many more calls from the appellant than what she had told the police or testified to in-chief. Accordingly, the defence succeeded in establishing what the records would have shown had they been admitted. It follows that the appellant suffered no prejudice.

The s. 276 Issue

[3] The appellant applied to cross-examine the complainant with a view to establishing that he and the complainant had slept together in the same bed on the night of June 3rd and that they had kissed the next morning when he left her premises. The trial judge held that the proposed questioning raised an inference of sexual activity and thus required an application under s. 276 of the Criminal Code. We agree.

[4] The trial judge refused to permit the proposed questioning. In so concluding, he considered the timing of the request, the appellant’s failure to comply with the notice requirements of s. 276 and his further failure to provide detailed particulars of the evidence he was seeking to adduce. He also took into account the limited probative value of the impugned evidence, bearing in mind the appellant’s contention that it was solely designed to show that he and the complainant had slept together in the same bed without engaging in any sexual activity. In that regard, as the trial judge noted, the jury was already aware from the complainant’s evidence that although she had broken off her relationship with the appellant two weeks prior to June 5th, she was nonetheless allowing him to stay at her residence until he got back on his feet. The jury also knew that the appellant had slept over at the complainant’s residence on the night of June 3rd and that he and the complainant had parted on friendly terms the next morning. Accordingly, the trial judge was on solid ground in holding that the evidence had little probative value.

[5] As for the prejudicial effect of the proposed evidence, there was a real concern that it would leave the jury, by design or implication, with the erroneous impression that the appellant and the complainant had engaged in sexual activity on the night of June 3rd. In that sense, its prejudicial effect clearly outweighed its probative value.

[6] In the circumstances, we are not persuaded that the trial judge erred in refusing to permit the proposed questions.

The Failure to Provide a Vetrovec Warning with Respect to the Complainant and Failure to Review the Frailties in the Complainant’s Evidence.

[7] We are not persuaded that a Vetrovec warning was required in this case. Apart from a number of inconsistencies in the complainant’s evidence, which the trial judge reviewed with the jury, there is no reason for doubting her integrity or the trustworthiness of her evidence. In these circumstances, while it would have been open to the trial judge to provide the jury with a cautionary instruction, such an instruction was not mandatory.

[8] In any event, the appellant did not seek a Vetrovec warning, probably for tactical reasons. Had the trial judge warned the jury as the appellant now suggests he should have, he would also have had to alert the jury to the large body of evidence capable of confirming the complainant’s testimony. Such an instruction would not have enured to the appellant’s benefit.

[9] Additionally, the jury was very discerning in its verdicts. The appellant was acquitted on most of the counts that depended on the unconfirmed evidence of the complainant. The convictions related largely to those counts upon which the complainant’s evidence was confirmed. In these circumstances, had a Vetrovec warning been given, the outcome, in our view, would have been the same.

[10] As for the concern that the trial judge did not sufficiently alert the jury to the frailties in the appellant’s evidence, we are satisfied that the charge adequately conveyed the relevant features of the complainant’s evidence, including the appellant’s position regarding its frailties.

[11] Accordingly, the appeal from conviction is dismissed.

Signed:_____ “R.S. Abella J.A.”

_____ “M.J. Moldaver J.A.”

_____ “Janet Simmons J.A.”