DATE: 20060213

DOCKET: C41550

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – GLENN WIEBE (Appellant)

BEFORE:

BORINS, JURIANSZ and LAFORME JJ.A.

COUNSEL:

Keith Wright

for the appellant

Suhail Akhtar

for the respondent

HEARD:

November 16, 2005

On appeal from the conviction entered by Justice Patrick Joseph Flynn of the Superior Court of Justice dated February 5, 2004.

E N D O R S E M E N T

[1] The appellant appeals his conviction by judge and jury of committing a sexual assault on a young male between January 1, 1989 and July 31, 1995. He raises a number of issues, the cumulative effect of which, he says, rendered the trial unfair.

The affirmation and the e-mails

[2] The appellant, who the evidence disclosed was an active member of a congregation, testified under an affirmation that he would tell the truth. During his examination-in-chief, the jury asked the judge what the difference was between swearing an oath on the Bible and affirming. With the agreement of both counsel, the trial judge told the jury that, for their purposes, there was no difference and that both are methods by which evidence is given in courts.

[3] When the appellant was recalled, his counsel asked him why he had chosen to affirm instead of swearing on the Bible; the judge remarked that he thought the matter had been dealt with. In the absence of the jury, the Crown objected, taking the position the jury had already been instructed they could not draw any inference from the fact that the appellant had affirmed. The Crown further argued that defence counsel had defied the Court by raising the issue after the Court had dealt with it.

[4] Before the judge ruled on the objection, the trial adjourned for the day. The next morning, defence counsel advised the Court that he had received copies of two e-mails that had been sent to the appellant from an excluded defence witness in the trial. One offered a rationale for why a devout Christian would choose to affirm rather than swear an oath. Defence counsel explained that he considered he had an ethical duty to disclose the e-mails to the Court.

[5] Crown and defence counsel disputed what use could be made of the e-mails at trial. The trial judge accepted the Crown’s submission that cross-examination of the appellant and other defence witnesses about the e-mails was relevant to the credibility and reliability of those witnesses. The judge directed defence counsel to file the e-mails as lettered exhibits and dismissed the defence's application for a mistrial.

[6] The trial judge also ruled that the appellant could explain why he had chosen to affirm instead of swearing an oath.

[7] In our view, the trial judge was unable to accede to the defence request that he exclude the e-mails from the trial and prohibit any reference to them. The e-mails were closely related to real trial issues. Cross-examination of the appellant on the e-mails was relevant to his credibility, because they raised the issue of whether some of his evidence may have been coached. Cross-examination of the excluded defence witness who sent the e-mails was relevant to his credibility as a witness, because it was apparent that he knew about the jury's question and had provided advice on how the question could be answered if it arose again. In particular, it was relevant to the question of his objectivity or impartiality as a witness.

[8] We do not agree that requiring production of the e-mails and permitting cross-examination on them, in effect, made defence counsel a witness against his own client. Defence counsel did indeed have an ethical duty to advise the Court of the e-mails. The trial judge, in turn, had the responsibility of ensuring the integrity of the trial process, and he permitted cross-examination on the e-mails in order to do so.

[9] Nor are we persuaded that the appellant's affirmation, when combined with the e-mail issue, became such a significant issue that it rendered the trial unfair and that the judge erred by dismissing the defence's application for a mistrial. An appellate court will not interfere with the discretion of a trial judge to grant or refuse an application for a mistrial absent an error of principle. The trial judge refused to grant a mistrial because he was not satisfied that the jury had heard anything to “tilt its deliberations at this point.” The judge left it open for counsel to bring a further motion after hearing what the witnesses had said.

[10] When the trial proceeded and the appellant was questioned about the e-mails, he explained that he had not received them, because he had not opened his computer during the course of the trial. He also explained that his religious beliefs prevented him from swearing an oath. The person who sent the e-mails testified that he was attempting to provide support to the appellant and, while he knew the issue had arisen in Court, that he was not aware that the question would be raised again. There was no renewal of the defence application for a mistrial.

[11] The judge's charge to the jury, read as a whole, and his review of the evidence pertaining to the credibility of the particular witnesses, including that of the sender of the e-mails, would have made clear to the jury that it could use evidence about the e-mails only in relation to the credibility of the sender.

Jury charge on delay in making the complaint

[12] The appellant submits that the trial judge did not properly instruct the jury regarding the use they could make of the complainant's failure to complain about the alleged sexual assaults by the appellant until several years had passed.

[13] It is worth noting that defence counsel did not object to this aspect of the trial judge's charge.

[14] The Supreme Court of Canada, in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65, set out the instructions that a jury should be given about the failure of a complainant to make a timely complaint:

A trial judge should recognize and so instruct the jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant [emphasis added].

[15] In his charge to the jury, the trial judge omitted the second and third sentences, indicated by italics, of these suggested instructions. In our view, the appellant was not prejudiced by this omission. Omitting a list of reasons why there might be a delay in reporting actual abuse did not prejudice the defence.

[16] The trial judge put the defence position regarding the delay in disclosure to the jury, and the instruction made clear to the jury that, while they could consider the timing of the disclosure, it was of no significance standing alone.

The use of complaint evidence

[17] The appellant submits that the trial judge ought to have instructed the jury on the use that could be made of the evidence regarding complaints made by the complainant to his counselors and his parents. In particular, the appellant submits that the jury ought to have been instructed not to use these complaints either for the truth of their contents or to support the complainant’s credibility.

[18] We are not persuaded that the trial judge erred in not instructing the jury in the manner suggested by the appellant. Not only did defence counsel not ask for such an instruction, but he also relied upon inconsistencies in these prior statements to suggest that the complainant was fabricating the allegations. In such circumstances, this court has held that a trial judge is not always required to provide a limiting instruction the jury: see R. v. Demetrius (2003), 179 C.C.C. (3d) 26; R. v. Vaniderstine, [2003] O.J. No. 4413.

Discussions among defence witnesses

[19] After learning the nature of the allegations made against him, the appellant discussed these allegations with friends. Some of these friends became witnesses for the defence, and the Crown cross-examined the appellant and these witnesses about what was said during these conversations.

[20] The appellant submits that the trial judge erred in not instructing the jury they could not draw an adverse inference against the appellant or any defence witness based on the fact that the appellant had disclosed to them, or had discussed with them, the complainant's allegations. This was necessary, he submits, because the Crown cross-examined the appellant on his use of disclosure to which he has a constitutional right.

[21] We disagree. The Crown was entitled in cross-examination to explore the extent to which the witnesses were not impartial and may have been trying to assist their friend. In its questions, the Crown made no reference to the actual disclosure received by the appellant. The Crown did not suggest that the appellant’s evidence was suspect because he had received disclosure, nor did it suggest that defence witnesses had tailored their evidence to fit the disclosure. As such, the case law relied upon by the appellant is inapplicable to the circumstances of this case: R. v. White (1999), 132 C.C.C. (3d) 373 (Ont. C.A.); R. v. Schnell (2000), 148 C.C.C. (3d) 219 (Ont. C.A.).

[22] It is also important to note that, at trial, the defence did not request such an instruction to the jury.

[23] We are not persuaded that the trial judge erred in this regard.

Lies told by the complainant as a child

[24] The complainant was cross-examined about lies regarding other matters that he had told as a child. The trial judge quite properly refused to allow the defence to question other witnesses about such lies. The proposed questions related to a collateral matter.

Vetrovec warning

[25] The appellant submits that the trial judge ought to have included a Vetrovec warning in his charge to the jury with respect to the evidence of the complainant. The defence, at trial, did not request a Vetrovec warning to be given with regard to this evidence, and he made no objection when no warning was included in the charge.

[26] As we are of the view that the complainant did not qualify as an "unsavoury witness", we find it unnecessary to consider the Crown's argument that the charge sought by the appellant would directly contravene s. 274 of the Criminal Code, which expressly prohibits the trial judge from directing a jury to look for corroboration in sexual assault cases.

Absence of the appellant during the pre-charge conference

[27] In his factum, the appellant contended that s. 650 of the Criminal Code was breached when trial counsel and the trial judge conducted a pre-charge conference in chambers and in the absence of the accused.

[28] Given, however, that the appellant abandoned this issue at the hearing of the appeal, we need not address it.

Conclusion

[29] For these reasons, the trial was not unfair, and the appeal is dismissed.

“S. Borins J.A.”

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”