DATE: 20050927

DOCKET: C40161

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. ROY THOMAS JOHNSTON (Appellant)

BEFORE: DOHERTY, MOLDAVER and ARMSTRONG JJ.A.

COUNSEL: Frank Addario for the appellant Susan Ficek for the respondent

HEARD: September 19, 2005 RELEASED ORALLY: September 19, 2005

On appeal from the conviction entered by Justice Whitten of the Superior Court of Justice, sitting with a jury, dated April 17, 2003 and the sentence imposed dated May 14, 2003.

E N D O R S E M E N T

[1] The interests of justice compel the admission of the fresh evidence tendered by the appellant. That evidence establishes that a letter (as well as a card and an envelope) were authored by the complainant, J.B., in or around January 1966. The complainant had denied at trial that she was the author of the letter. The card and envelope were not put to her at trial.

[2] The contents of the letter are arguably inconsistent with J.B.’s allegation that she had been repeatedly raped by the appellant over the fourteen months prior to the date of the letter. The fresh evidence also has potential impeachment value as it applies to the evidence of J.B. It demonstrates at a minimum that her recollection as to authorship of the letter was wrong. A jury could, however, infer that she deliberately lied when she denied writing the letter. Either finding, but particularly the second, could have a strong adverse effect on her credibility. J.B.’s evidence was crucial to the Crown’s case on counts one (rape of J.B.) and three (indecent assault of J.B.).

[3] The Crown argued that the evidence should not be admitted because the appellant had failed to demonstrate due diligence. The exercise of due diligence is not a prerequisite to the admission of fresh evidence in criminal appeals. If the interests of justice require that the evidence be admitted, it will be received even though due diligence was not exercised. In any event, we are satisfied that the appellant has demonstrated due diligence. Trial counsel made many efforts to obtain a contemporaneous sample of J.B.’s handwriting which could be compared with the letter by a qualified expert. Counsel’s task was made difficult by the passage of some thirty-five years. He was unable to obtain a contemporaneous sample of J.B.’s handwriting.

[4] The respondent submits that the appellant could have testified that the complainant authored the letter and that he received it. It is true that the appellant could have done so, but the availability of the appellant’s testimony that J.B. authored the letter has nothing to do with whether trial counsel exercised due diligence in respect of obtaining the appropriate expert evidence. The appellant’s evidence that the complainant authored the letter depended entirely on his credibility and was in no way comparable to the opinion evidence of a qualified expert that the letter was written by the J.B.

[5] We reject the submission that due diligence requires that the appellant demonstrate that there was no other evidence available at trial relevant to the issue on which the fresh evidence is adduced. The fact that the appellant could have testified as to the authorship of the letter has nothing to do with whether counsel exercised due diligence in obtaining an expert’s opinion as to the authorship of the letter.

[6] In some circumstances, the failure of the defence to lead the evidence that it had on an issue may reflect on the relative unimportance of that issue and support the argument that the fresh evidence could not have affected the verdict. That is not the case here: the authorship of the letter was a significant feature of the case. The decision not to call the appellant was made for reasons that had nothing to do with the potential probative value of establishing that the complainant wrote the letter.

[7] The appellant has satisfied us that the fresh evidence, if believed, could have affected the verdict on all counts on which the appellant was convicted. The fresh evidence has a direct impact on counts one and three where J.B. was the named complainant. It has an indirect impact on the indecent assault charges in counts six, seven and eight involving three other complainants. The jury was told that it could consider J.B.’s evidence relating to count three (the indecent assault against her) when considering their verdicts on counts six, seven and eight.

[8] Furthermore, J.B.’s evidence of the repeated rapes by the appellant (count one) could have impacted on the jury’s consideration of counts six, seven and eight given the unsatisfactory limiting instruction provided by the trial judge.

[9] The fresh evidence should be admitted and requires that all of convictions be quashed.

[10] Although it is not necessary for us to go further, we wish to add an additional comment. With respect to the severance argument advanced by the appellant, we do not read R. v. Thomas (2004), 2004 ONCA 33987, 190 C.C.C. (3d) 31 (Ont. C.A.) as holding that severance must automatically be granted whenever a trial judge determines that certain charges may not be considered as similar fact evidence in relation to other charges in the indictment because they are more egregious than the other charges and carry with them a risk of moral prejudice reasoning. If severance is not ordered in such cases, however, then it is incumbent on the trial judge to warn the jury in the clearest of terms about the impropriety of engaging in moral prejudice reasoning. Unfortunately, as indicated above, we are not satisfied that the trial judge gave that instruction in this case. There was a real risk that the jury would misuse the evidence tendered on count one (rape) when considering counts six, seven and eight (the indecent assault charges involving the other complainants).

[11] The appeal is allowed, the convictions are quashed and a new trial is ordered in all counts on which the appellant was convicted.

“Doherty J.A.”

“M.J. Moldaver J.A.”

“Robert P. Armstrong J.A.”