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:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 205, c. 32, s. 15.
CITATION: R. v. Mitchell, 2008 ONCA 757
DATE: 20081110
DOCKET: C46944
COURT OF APPEAL FOR ONTARIO
Sharpe, Lang and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Sean Mitchell
Respondent
Eliott Behar, for appellant
Joseph Di Luca and Gavin MacKenzie, for the respondent
Heard and released orally: November 5, 2008
On appeal from the order of Justice T. Ducharme of the Superior Court of Justice dated March 14, 2007.
By the Court:
[1] The respondent was charged with eight counts of sexual assault in relation to eight different women on eight different occasions. The key issue at trial was identity. The trial judge granted the Crown’s similar fact application, ruling that the evidence on each count was admissible on all other counts. In detailed and comprehensive reasons for judgment, the trial judge convicted the respondent on four counts but held that the Crown had failed to prove its case beyond a reasonable doubt on the remaining four counts and acquitted the respondent on those counts.
[2] The summary conviction appeal judge allowed the respondent’s appeal on two grounds, namely:
1. that the trial judge had failed to consider the “exculpatory value” of the four acquittals, and
2. that the trial judge erred by curtailing the cross-examination of one of the Crown’s witnesses.
[3] For the following reasons, we grant the Crown’s application for leave to appeal, allow the appeal and restore the convictions.
FACTS
[4] All eight assaults that formed the subject of these charges took place over approximately 12 weeks during the summer of 2002. While there were some minor variations as to how the assaults were committed, essentially, in each case, the attacker came up suddenly from behind the female victim, grabbed her with one arm, thrust his other arm underneath her skirt to touch her vagina, quickly let go and ran away. Each of the complainants testified that the attacker wore the collar of his t-shirt across the bridge of his nose to disguise himself. The complainants were all able to give some description of their assailant’s physical appearance and some were able to describe the distinctive car he was driving.
[5] The Crown’s strongest case involved the assault on P.Y. After she was assaulted, P.Y. chased her assailant but he managed to escape. An independent witness, Fred Rosler, testified that he saw the respondent pull his car into a handicapped parking spot outside Rosler’s apartment and then saw the same man return on foot a few minutes later to enter the car and speed away. Rosler was suspicious of the driver’s actions and he wrote down the licence plate number of the car. The licence plate number led the police to the respondent.
[6] At trial, Rosler was thoroughly cross-examined on the observations he made on the day of the assault against P.Y. He was then cross-examined at considerable length on his general character and prior disreputable conduct. This included questions related to the frequency of his employment and compensation he received for medical injuries, his extensive criminal record, the fact that he had suffered a nervous breakdown, a heart attack and a stroke, and suggestions that he had problems with alcohol and used marijuana. The respondent’s counsel sought to further cross-examine the witness with respect to a number of issues including: a police report involving a complaint by his ex-girlfriend about a threat another man had made against her and that man’s complaint of Rosler’s threat; mention in a dated police report that Rosler had been admitted to hospital with mental illness; and another dated police report which had not resulted in charges.
[7] The trial judge held a voir dire to canvass these proposed areas of cross-examination. When asked, defence counsel indicated that the questions were not directed to the witness’s testimonial capacity or to his ability to relate his observations to the court but rather that they related to his credibility at large. The trial judge concluded that these areas of proposed further questioning had no probative value, were little more than a fishing expedition intended to upset the witness, and that prohibiting the questioning would not imperil the respondent’s right to a fair trial. Nonetheless, the trial judge gave defence counsel some latitude and allowed some further cross-examination.
[8] The respondent did not testify.
[9] The trial judge found that the Crown had proved its case beyond a reasonable doubt in relation to the assault on P.Y. He also convicted the respondent in relation to three other assaults given the strong similarities in evidence of identification of the assailant’s car, the assailant himself and the nature and location of the assaults. The trial judge concluded with respect to the remaining four counts that, in light of certain frailties that he identified, he was left with a reasonable doubt and therefore, he acquitted the respondent on those counts.
ANALYSIS
1. Similar fact evidence
[10] The summary conviction appeal judge found that “the trial judge erred in law by failing to expressly consider the exculpatory value of the acquittals”. He reasoned that because the trial judge had made a threshold ruling on the similar fact application that all of the offences were likely committed by the same person and as he had acquitted the accused on four of the counts, he was required to expressly consider the exculpatory value the acquittals had on the other counts.
[11] We agree with the appellant that the summary conviction appeal court judge erred. There is a fundamental distinction between the test for admissibility of similar fact evidence – proof on a balance of probabilities that the same person committed all eight attacks – and the test for conviction – proof beyond a reasonable doubt that the accused was the man who perpetrated four of those attacks. As the Supreme Court of Canada stated in R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at para. 79, where the evidence on one count is admissible under the similar fact principle on other counts, “[t]here is nothing unfair or logically irreconcilable about a jury having reasonable doubt whether the accused committed an act while also finding that it is likely that he committed it.”
[12] In the circumstances of this case, we fail to see how the trial judge’s acquittal on four counts had any exculpatory value on the other four counts. It is clear from his reasons that the trial judge rigorously applied the proof beyond a reasonable doubt standard and that he was simply not satisfied of the respondent’s guilt to that standard on four counts. However, he certainly did not find, nor can one read into his reasons that, as the respondent puts it in his factum, he was satisfied that the respondent was not the attacker on four of the assaults resulting in acquittals. We can read no more into the acquittals than that the trial judge was not satisfied of the respondent’s guilt on those counts beyond a reasonable doubt, a finding that is perfectly consistent with his finding that it is more likely than not that the same man committed all eight assaults.
[13] The summary conviction appeal judge cited the following passage from Arp at para. 78:
a careful instruction from the trial judge will be required. It will be necessary to explain to the jury that evidence adduced on one count upon which the jury would acquit may be used in assessing the liability on another count or counts.
[14] What this passage makes clear, in our view, is that even if the jury acquits on one count they can still use similar fact evidence arising from that count in relation to other counts, exactly the reverse of what the respondent submits. While there may be situations where, on the particular facts of the case, an acquittal on one count could have exculpatory effect on another count, there is no air of reality that the facts of the present case give rise to that possibility.
[15] While the trial judge did not explicitly reject the alibi evidence led in relation to the W.S. count, he concluded:
I cannot conclude that… the combination of the alibi evidence plus the dissimilarities in Ms. W.S.’s version of the events, would lead me to conclude anything other than; I have a reasonable doubt with respect to Mr. Mitchell’s guilt on that count.
[16] Similarly, while K.M.1 and K.M.2 thought they saw their assailant subsequent to the attacks and gave identifying features that differed from the respondent, in the end, the trial judge viewed that evidence as simply a weakness in their ability to identify the respondent. In our view, none of this amounts to exculpatory evidence.
2. Cross-examination
[17] We respectfully disagree with the summary conviction appeal judge that the trial judge erred in limiting the cross examination of Rosler. As the Supreme Court of Canada held in R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 44 and 50:
The right of cross-examination must therefore be jealously protected and broadly construed. But it must not be abused. Counsel are bound by the rules of relevancy and barred from resorting to harassment, misrepresentation, repetitiousness or, more generally, from putting questions whose prejudicial effect outweighs their probative value.
wide latitude does not mean unbridled licence, and cross-examination remains subject to the requirements of good faith, professional integrity and the other limitations set out above.
[18] In our view, the trial judge provided ample and persuasive reasons for limiting the cross-examination of Rosler. The witness had been thoroughly cross-examined with respect to his observations and he had been subjected to a lengthy attack on his character which included exploration of his criminal past, his medical history, and the fact that he had suffered from mental illness. When asked to justify further probing into these highly personal areas on what appeared to be a speculative basis, counsel conceded that his questions related only to the witness’s general credibility.
[19] Trial judges are entitled to limit needless, repetitive, prolix and abusive cross-examinations as part of their overall obligation to control the process of the court, provided of course, that they respect the fundamental right of the accused to make full answer and defence. In the circumstances of this case, we see no basis to interfere with the trial judge’s conclusion that the proposed areas for additional cross-examination lacked relevance and probative value, and that, in view of the fact that the witness’s character and past had already been explored in some considerable depth, the respondent’s right to make full answer and defence was in no way impaired by limiting the cross-examination.
CONCLUSION
[20] For these reasons we grant the Crown’s application for leave to appeal, allow the appeal and restore the convictions entered at trial. Given his disposition of the conviction appeal, the summary conviction appeal judge did not deal with the sentence appeal. That sentence appeal remains outstanding and is remitted to the Superior Court for determination.
“Robert J. Sharpe J.A.”
“S.E. Lang J.A.”
“G. Epstein J.A.”
RELEASED: November 10, 2008