W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. Subsections 486(3) and 486(5) of the Criminal Code provide:
486.(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i), (ii) and (iii).
(5) Every person who fails to comply with an order made under subsection (3) or (4.1) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20.
DATE: 20060215
DOCKET: C38885
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., GOUDGE AND BORINS JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Leslie Maunder for the appellant
Appellant
- and -
DAVID MARACLE
Christine Bartlett-Hughes for the respondent
Respondent
Heard: January 25, 2006
On appeal from the conviction by Justice James C. Kent of the Superior Court of Justice dated November 15, 1999 and from the sentence imposed by Justice James C. Kent dated November 8, 2000.
GOUDGE J.A.:
[1] On November 15, 1999, the appellant was convicted of sexual assault causing bodily harm, kidnapping and carrying a gun for the purpose of committing the indictable offence of forcible confinement. On November 8, 2000, the trial judge found the appellant to be a dangerous offender and ordered him detained for an indeterminate period. The appellant appeals conviction and sentence.
[2] For the reasons that follow, I conclude that there were three serious errors in the conduct of the trial that fatally compromise its fairness and that in the circumstances, s. 686 of the Criminal Code should not be applied. Hence there must be a new trial. As counsel agreed, it is therefore not necessary to deal with the sentence appeal.
[3] While this trial was about whether the appellant was the perpetrator, there is no doubt that this was a particularly brutal crime. Because I would order a new trial, I will limit my recitation of the evidence to what is necessary to provide context for the arguments in this court.
[4] On May 26, 1997, the complainant, a 14 year old girl, was accosted by a man with a gun at about 7:30 a.m. on her way to school. She was grabbed from behind as she walked on a trail through a wooded park. Her view was obstructed by a cloth placed over her eyes that was then replaced by duct tape. She was walked back to the assailant’s car where the first sexual attack took place. She was then driven to a second unknown location where another attack occurred. Finally she was driven to a third location, which turned out to be the Six Nations Reserve, where yet a third brutal sexual assault was perpetrated. Her wrists were duct taped and the man then drove off. The complainant ripped the tape off her arms and eyes and sought help. She was taken to hospital where a sexual assault kit was prepared.
[5] The Crown’s case had three components. First, the complainant offered some limited identification evidence. She never saw her assailant’s face but described him as big and fat with a voice that sounded African or “Indian”. While the appellant was substantially taller than the complainant, he was slender and spoke with a speech impediment, not a noticeable accent.
[6] Second, the Crown introduced evidence of a piece of duct tape with a fingerprint on it that was a 12-point match with the appellant’s fingerprint. The duct tape was found off the walking trail through the park, but not near the location where the complainant was first grabbed. There was no evidence that duct tape was removed from the complainant while she was in the wooded park.
[7] Third, the Crown tendered DNA evidence as the key part of its identification case. The complainant’s T shirt was found to contain a semen stain with a DNA profile that matched that of the appellant. The expert evidence was that in random sampling, this profile could be expected to occur with a frequency of one in 4.5 to 6.5 billion. Further tests of oral and vaginal samples contained a mixture of DNA that did not produce a match for the appellant, but could not exclude him either.
[8] The defence sought to attack the DNA evidence by challenging the continuity of the exhibits tested, by attempting to cast doubt on the results based on some evidence of contamination of one of the samples, and by arguing that the population frequency numbers were not meaningful, particularly absent any data from which to extrapolate the frequency of the DNA profile within the Mohawk population, (since the appellant was a Mohawk).
[9] The appellant’s main defence was twofold. He testified and denied attacking the complainant. He said he was unaware of ever having met her or seen her prior to these proceedings. He also advanced an alibi testifying that he was at home on the morning of May 26, 1997. His sister, his mother and his brother all testified in support of his alibi. The Crown challenged this evidence, most significantly on the discrepancy between the evidence of the appellant and his sister about when she saw him that morning.
[10] The appellant first argues that the trial judge erred in giving the jury a “deliberate fabrication” instruction. At the conclusion of his WD charge, the trial judge said this:
You must remember that because you reject the accused’s evidence does not necessarily mean he is guilty. If his explanation or his evidence is found by you to be deliberately false, however, you may take that false explanation into consideration as an item of evidence tending to establish his guilt. (Emphasis added.)
[11] This part of the charge clearly encompassed both the appellant’s denial and his alibi. For the jury to use the appellant’s evidence in this way to support an inference of consciousness of guilt there must be other evidence from which a reasonable jury could conclude that the disbelieved statements were deliberately fabricated and that the accused was involved in that attempt to mislead the jury. See R. v. Hibbert (2002), 2002 SCC 39, 163 C.C.C. 129 (S.C.C.), and R. v. O’Connor (2002), 2002 3540 (ON CA), 170 C.C.C. (3d) 365 (Ont. C.A.).
[12] The power of an instruction such as this and the need for care in making it was underlined by O’Connor A.C.J.O. in R. v. O’Connor, supra, at para. 38:
[38] The need for independent evidence of fabrication to support such an instruction is critical. An instruction to jurors that they may make a finding of fabrication against an accused is extremely powerful and must be made with care. The difference between evidence leading only to disbelief of an accused’s statement and independent evidence of fabrication can be a difficult concept, particularly for a jury, to grasp. It is, therefore, essential that a trial judge clearly set out the difference between the two types of evidence and in those cases where the fabrication instruction is given, the trial judge should carefully outline what evidence is capable of constituting independent evidence of fabrication.
[13] In this case, the Crown did not seek an instruction on deliberate fabrication. In addition, the instruction given provides no guidance to the jury about what evidence, if any, could support the conclusion that the appellant had attempted to mislead the jury through deliberate fabrication and no guidance distinguishing any evidence of that kind from evidence leading only to disbelief of the appellant’s statements.
[14] Moreover, in my view, there is simply no independent evidence of deliberate fabrication in this case. The Crown points only to the evidence of the appellant’s sister and the difference between her and the appellant about when they saw each other that morning. However, that evidence can go to no more than disbelief of the appellant, not to any deliberate attempt by him to mislead the jury.
[15] I would, therefore, conclude that this instruction ought not to have been given. Because of its power and its potential to affect both the appellant’s denial and his alibi which were central to his defence, I view this as a serious error.
[16] The appellant’s second argument also relates to his alibi. While the alibi was not disclosed to the Crown or the police until April 1999, there was evidence that it was disclosed to defence counsel in the summer of 1997. However, the Crown called no evidence that the delay in its learning of the alibi prevented the police from properly investigating it. In addressing the jury, the Crown did not invite disbelief of the alibi because it had inadequate time to investigate. It did rely on the delay itself as support for the conclusion that the jury ought not to accept it. However, the trial judge gave this instruction:
I wish to make it quite clear that the accused is not in law obliged to disclose his alibi to the authorities in time for them to have an opportunity to investigate it effectively. The issue, therefore, for you to consider, is whether the substance of the alibi was disclosed in sufficient time for meaningful or effective investigation. [Emphasis added.]
[17] The law concerning late disclosure of an alibi was addressed by Cory J.A. (as he then was) in Regina v. Parrington (1985), 1985 3610 (ON CA), 20 C.C.C. (3d) 184 (Ont. C.A.) at 187-188:
The governing principle is that a failure to disclose an alibi at a sufficiently early time to permit it to be investigated by the police is a factor to be considered in determining the weight to be given to the alibi evidence: see R. v. Mahoney (1979), 1979 82 (ON CA), 50 C.C.C. (2d) 380, 11 C.R. (3d) 64 (Ont. C.A.), and R. v. Dunbar and Logan (1982), 1982 3324 (ON CA), 68 C.C.C. (2d) 13, 138 D.L.R. (3d) 221, 28 C.R. (3d) 324 (Ont. C.A.). Where, as in this case, there is adequate time for investigation then the time of disclosure is no longer a factor for consideration and no reference should be made to it in the charge to the jury.
[18] In my view, there was no basis for this instruction. Here, as well, the error is more significant because it concerns the appellant’s main defence, his alibi. Its importance is compounded because it does not instruct the jury about the consequence they can draw if they conclude that the delay prevented proper investigation, namely, that they could consider the delay in assessing the weight to be given to the alibi. The brevity of this instruction could have left the jury with the impression that the only issue they had to decide concerning the alibi was whether the police had insufficient time to properly investigate and, if so, the alibi need not be considered further. This implication carries significant prejudice for the appellant.
[19] The third issue raised by the appellant concerns the ruling on the Corbett application brought by the appellant before he gave his evidence. The trial judge exercised his discretion to direct that the appellant could not be examined on his two prior convictions for sexual assault, one in 1989 and the second in 1998. However, in an understandable attempt to avoid presenting a misleading picture to the jury he then went on to rule that the Crown would be entitled to ask a question to indicate that the appellant’s entire record had not been reviewed with the jury in his examination-in-chief. As a result, the cross-examination of the appellant concluded with the following exchange:
Q. My friend reviewed with you, sir, convictions that you have been convicted of between 1981 and 1998?
A. Yes.
Q. Those are your convictions?
A. Yes, they are.
Q. That’s not the totality of your convictions?
A. No, it’s not.
[20] In my view the Corbett ruling was in error. Telling the jury that the appellant had other convictions was of little if any probative value. It said nothing about whether these convictions were old or recent or whether they were for crimes of dishonesty that spoke to the appellant’s veracity. However, it carried significant prejudice for the appellant. It left the jury to speculate about what these other convictions might be for. And, most importantly, by directing that the Crown was to elicit this evidence in cross-examination, the ruling could well have further undermined the appellant’s credibility by leading the jury to conclude that the appellant had attempted to mislead the court in giving his evidence in chief.
[21] The appellant raised two further arguments that I need not deal with, because neither raises a reversible error, and both depend on the particular way in which the evidence went in at this trial. Since it is uncertain that the evidence in a new trial will follow precisely the same course, further discussion of these two issues is unlikely to be of future help. I add only this, that one of the two concerns the charge relating to the DNA evidence being essentially limited to a caution not to be overwhelmed by the aura of scientific infallibility associated with such evidence. On this score there is helpful guidance in R. v. Terceira (1998), 1998 2174 (ON CA), 123 C.C.C. (3d) 1 (Ont. C.A.). First there is the careful language of Campbell J. quoted at para. 57. Then at para. 58 this court explains “the prosecutor’s fallacy” of equating the probability of a random match of a probability of the appellant’s innocence. Both were approved by the Supreme Court of Canada in R. v. Terceira, 1999 645 (SCC), [1999] 3 S.C.R. 866.
[22] However, I have concluded that there were three significant errors in the trial. All impact on the effect of the appellant’s evidence, his denial and his alibi. Taken together, their cumulative impact rendered the trial unfair.
[23] While there is no doubt that the Crown’s case was strong, that strength was derived very largely from the DNA evidence. That evidence was challenged on several bases by the appellant as I have indicated. Against this, the appellant’s defence depended on his own evidence (particularly his denial and his alibi) raising at least a reasonable doubt. These errors deprived him of a fair opportunity to have the jury consider his evidence. Since I am not able to say that if these errors had not been made the result would necessarily have been the same, I do not think this is an appropriate case in which to apply the proviso.
[24] As a result, I would set aside the conviction and order a new trial.
RELEASED: February 15, 2006 “RRM”
“S.T. Goudge J.A.”
“I agree R. R. McMurtry C.J.O.”
“I agree S. Borins J.A.”