Her Majesty the Queen v. B. (D.M.) [Indexed as: R. v. B. (D.M.)]
74 O.R. (3d) 603
[2005] O.J. No. 227
Docket: C41109
Court of Appeal for Ontario,
Moldaver, Gillese and Juriansz JJ.A.
January 27, 2005
Criminal law -- Charge to jury -- Evidence -- Prior consistent statements -- Accused charged with several sexual offences -- Accused not alleging recent fabrication but attacking complainant's credibility at [page604] large -- Complainant's mother's evidence about complaint made regarding first charge laid properly admitted as part of narrative but trial judge erring by failing to give limiting instruction that it could not be used to buttress complainant's credibility -- Trial judge erring by telling jury could use mother's evidence to support daughter's credibility -- Appeal against conviction allowed -- New trial ordered.
Criminal law -- Evidence -- Admissibility -- Evidence rendering trial unfair -- Accused pleading guilty to one sexual offence -- During preparation of pre-sentence report accused making highly incriminatory admissions -- Additional disclosures made by complainant leading to further charges against accused -- Accused then successfully struck plea of guilty on first charge -- Probation officer permitted to testify about accused's admissions without advising jury that remarks made during interview for pre-sentence report -- Conversation with probation officer would not have occurred but for now struck guilty plea -- Admission of evidence of probation officer highly prejudicial and would render trial unfair -- Evidence excluded pursuant to Supreme Court's decision in Harrer -- Appeal from conviction allowed and new trial ordered.
Criminal law -- Trial -- Conduct of Crown -- Closing address -- Crown counsel repeatedly expressing personal opinion about accused's guilt and lack of credibility while vouching for honesty and integrity of complainant and her mother -- Address improper and inappropriate -- Given other reversible errors not necessary to determine if improper address alone warranting new trial.
The accused had entered a plea of guilty to one sexual offence. He was interviewed by a probation officer for a pre- sentence report on that charge. In the course of that interview, the accused made highly incriminating statements, all but acknowledging that he was a serial sex offender. The complainant then disclosed that the accused had sexually abused her on other occasions. The accused was charged with these newly-disclosed offences. The accused then successfully moved to have his plea of guilty struck in relation to the first charge and was tried by a jury on all charges. The probation officer testified about the accused's admissions, but without disclosing the context of the conversation so that the jury would not be told of the earlier plea of guilty. The accused was convicted of sexual interference, invitation to sexual touching and sexual assault. He appealed.
Held, the appeal should be allowed.
The trial judge erred in admitting the evidence of a probation officer with respect to a statement which the accused had given to the probation officer. The probation officer's evidence was inextricably tied to a guilty plea by the accused which was eventually struck out. Given that the plea itself was inadmissible, then as a matter of trial fairness, the accused's statement to the probation officer, given in the context of that plea, should also have been excluded. As the probation officer's evidence was highly prejudicial to the accused, this was not an appropriate case for the application of the curative proviso.
The accused did not allege recent fabrication when cross- examining the complainant, but rather simply challenged her credibility at large. Accordingly, although the complainant's mother was entitled to relate the specifics of her daughter's complaint in relation to another incident as part of the narrative, the [page605] jury should have been warned that they could not take the mother's evidence into account as supportive of the complainant's credibility. Instead, the trial judge erroneously instructed the jury that the evidence could be used for that purpose. In addition, aspects of the mother's evidence amounted to impermissible oath helping and other parts of it improperly impugned the accused's character, such as disclosing the terms of bail that pre-supposed his guilt.
Crown counsel at trial delivered a highly improper closing address, repeatedly expressing his personal opinion about the accused's guilt and his lack of credibility while vouching for the honesty and integrity of the complainant and her mother. The closing address was inappropriate. However, given that a new trial is required as the result of the other errors, it is not necessary to determine if this ground alone warranted a new trial.
APPEAL from a conviction for sexual interference, invitation to sexual touching and sexual assault imposed by R. Thompson J. of the Superior Court of Justice, sitting with a jury, dated October 16, 2003, and sentence imposed by R. Thompson J. dated december 19, 2003.
Cases referred to R. v. Campbell (1997), 1977 1191 (ON CA), 17 O.R. (2d) 673, 38 C.C.C. (2d) 6 (C.A.); R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562, [1995] S.C.J. No. 81, 128 D.L.R. (4th) 98, 186 N.R. 329, 32 C.R.R. (2d) 273, 101 C.C.C. (3d) 193, 42 C.R. (4th) 269; R. v. Milne (1996), 1996 508 (ON CA), 28 O.R. (3d) 577, [1996] O.J. No. 1728, 35 C.R.R. (2d) 257, 107 C.C.C. (3d) 118, 48 C.R. (4th) 182, 18 M.V.R. (3d) 161 (C.A.) [Leave to appeal to S.C.C. refused (1996), 39 C.R.R. (2d) 376n, 207 N.R. 78n]
John Mann, for appellant. Roger Shallow, for respondent.
[1] Endorsement by the court: -- The appellant was convicted of sexual interference, invitation to sexual touching and sexual assault in relation to his stepdaughter, who at all material times was under the age of 14 years. He was sentenced to 18 months' imprisonment and 30 months probation. He appeals against conviction and sentence.
[2] For reasons that follow, we have concluded that the convictions cannot stand and that a new trial must be ordered.
The Probation Officer's Evidence
[3] In our view, the evidence of the probation officer should not have been admitted. It was inextricably tied to the appellant's guilty plea in respect of the May 13, 2002 offence, a plea that was eventually struck out by the provincial court judge before whom it was entered. Given that the plea itself was inadmissible, we think that as a matter of trial fairness, the appellant's statement to the probation officer, given in the context of that plea, should also have been excluded. [page606]
[4] By way of analysis, assuming that the appellant's remarks to the probation officer were otherwise admissible, in the circumstances, the admission of the probation officer's evidence rendered the trial unfair. It should have been excluded in accordance with the principles enunciated by the Supreme Court of Canada in R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562, [1995] S.C.J. No. 81, 101 C.C.C. (3d) 193 and this court's decision in R. v. Milne (1996), 1996 508 (ON CA), 28 O.R. (3d) 577, [1996] O.J. No. 1728, 107 C.C.C. (3d) 118 (C.A.).
[5] In coming to that conclusion, we have considered the whole of the circumstances, including the method arrived at by the trial Crown and the trial judge to prevent the jury from hearing the appellant's withdrawn guilty plea (something which everyone agreed the Crown could not lead in chief). To accomplish this, Crown counsel agreed that in chief, he would not elicit from the probation officer her occupation, the circumstances under which she spoke to the appellant, or how she had come to be in possession of a police report which detailed the complainant's allegation regarding the May incident and which she reviewed in total with the appellant.
[6] In our view, the method chosen to keep the withdrawn plea from the jury was doomed to failure. Given the highly damaging admissions made by the appellant to the probation officer, if the appellant had any hope of overcoming them, he had to take the witness stand on his own behalf and explain the circumstances surrounding his meeting with the probation officer and the reason why he had not told her the truth. This would have required him to explain his withdrawn guilty plea, the fact that he was speaking to a probation officer in respect of an impending sentence hearing and the reason why he had falsely admitted the complainant's allegations in respect of the May incident.
[7] In those circumstances, the defence cannot be faulted for eliciting much of this information from the probation officer in cross-examination. Realistically, the defence had no other choice.
[8] This is but one example of the unfairness that resulted from the admission of the probation officer's evidence. It is symptomatic of our overriding concern, expressed earlier, that the appellant's dialogue with the probation officer was inextricably linked to his guilty plea. Simply put, it would not have occurred but for that plea. Once the plea was struck out, it was as if it had never happened. In the circumstances, fairness required that the appellant's admissions to the probation officer be brought under the same protective umbrella.
[9] The evidence of the probation officer was highly prejudicial, not only in relation to the May offence but in relation to the other offences upon which the appellant was also convicted. In addition [page607] to confessing to the May incident, the appellant virtually admitted to being a sex offender in need of treatment. In view of that, we cannot say that the jury's verdicts on the offences other than the May offence would necessarily have been the same had the probation officer's evidence been excluded. Accordingly, this is not an appropriate case to apply the curative proviso.
The Mother's Evidence
[10] The defence did not allege recent fabrication when cross-examining the complainant. To be precise, this was not a case in which the defence suggested that the complainant had concocted evidence at a certain time for a certain reason and the Crown had evidence to show that on an earlier occasion, the complainant had told someone else the same thing when the reason to concoct did not exist. Rather, the defence simply challenged the complainant's credibility at large. The distinction is an important one. It is spelled out with clarity in R. v. Campbell (1997), 1977 1191 (ON CA), 17 O.R. (2d) 673, 38 C.C.C. (2d) 6 (C.A.), at p. 687 O.R., p. 20. C.C.C.
[11] Accordingly, although the complainant's mother was entitled to relate the specifics of her daughter's complaint in relation to the May incident as part of the narrative in regard to her own testimony, the jury should have been given a limiting instruction on its use. Specifically, because the mother's evidence was not admissible to rebut an allegation of recent fabrication, the jury should have been warned that they could not take her evidence into account as supportive of the complainant's credibility. Unfortunately, the trial judge instructed the jury that the evidence could be used for that purpose.
[12] In addition, the mother gave evidence as to the specific complaints made to her by her daughter in relation to the offences other than the May incident. Because recent fabrication was not raised in relation to those matters, even assuming that the mother's evidence of the specific complaints was admissible as part of the narrative of her own testimony (which we doubt), it was essential that the trial judge warn the jury about its limited use. That was not done. The trial judge told the jury that the evidence could be used to support the credibility of the complainant. He erred in doing so.
[13] In addition, aspects of the mother's evidence amounted to impermissible oath helping and other parts of it improperly impugned the appellant's character. Of specific concern is her evidence relating to the appellant's bail conditions. That evidence was completely irrelevant but potentially very prejudicial. The jury was informed of bail conditions that were presumptive of the appellant's guilt. [page608]
The Crown's Closing Address
[14] Crown counsel (not Mr. Shallow) delivered a highly improper closing address. He repeatedly expressed his personal opinion about the appellant's guilt and his lack of credibility, while vouching for the honesty and integrity of the complainant and her mother. In doing so, he exceeded the bounds of propriety.
[15] In the circumstances, we need not finally decide whether standing alone, the improper closing address would have warranted a new trial. Suffice it to say that Crown counsel's advocacy was most inappropriate and it should not be repeated.
Conclusion
[16] Other grounds of appeal were raised which we need not address. In the result, we would allow the appeal, quash the convictions, and order a new trial. In view of that disposition, we make no comment about the sentence appeal.
Appeal allowed.