R. v. Sihota, 2009 ONCA 770

CITATION: R. v. Sihota, 2009 ONCA 770

DATE: 20091105

DOCKET: M37668 (C49472)

COURT OF APPEAL FOR ONTARIO

Laskin, Sharpe and Watt JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Tapinder Sihota

Applicant/Appellant

Counsel: James Lockyer and Benissa Yau, for the applicant/appellant Elise Nakelsky, for the respondent

Heard: October 7, 2009

Motion for an order pursuant to s. 683(1)(b) of the Criminal Code to require that a witness be made available for cross-examination.

Sharpe J.A.:

[1] The appellant brings this motion for an order pursuant to s. 683(1)(b) of the Criminal Code requiring that a witness be made available for cross-examination. The appellant presents certain new information that he will seek to introduce as fresh evidence on his appeal from conviction for sexual assault. The witness the appellant seeks to cross-examine on that new information is his wife, Gurinder Sihota, the complainant and alleged victim of the sexual assault.

[2] The charge arose from a series of acts allegedly committed between January 1, 2005, and February 16, 2007, while the parties were married. The parties separated in October 2006. The appellant commenced divorce proceedings and the question of child custody and access quickly became an issue. On January 10, 2007, the appellant obtained an ex parte order prohibiting his wife from leaving Waterloo Region with their daughter. Ms. Sihota first complained to the police of sexual assault on January 27, 2007. A family court order granted interim custody to both parents and continued to prohibit either party from removing their daughter from the region. The parties’ second child was born on April 2, 2007.

[3] Credibility was the central issue at trial. The Crown called only one witness, the complainant Gurinder Sihota. The appellant testified in his own defence, denied ever having abused his wife, and took the position that the complainant’s allegations were fabricated in order to secure custody of their children and allow her to relocate to British Columbia where her family resided. The complainant denied that her allegations of abuse were the product of the custody dispute and testified that she wanted the appellant to have a continuing relationship with the children. The trial judge expressed certain concerns with the appellant’s evidence but stated that those concerns “were not sufficient to warrant a rejection of his evidence when it is viewed on its own.” However, the trial judge accepted the evidence of the complainant, did not accept the appellant’s evidence, and found that the appellant’s evidence did not raise a reasonable doubt. In his reasons for judgment, the trial judge specifically rejected the appellant’s claim that the allegations had been fabricated to support the custody claim:

The defence argues that she had motive to fabricate her story, i.e. issues of custody and wanting to move from the province but I find that is not the case. Indeed, she was more than fair in her assessment of Mr. Sihota. She clearly indicated in her evidence with some emotion that she wants Mr. Sihota to have a relationship with their children.

The facts simply do not support that submission. She wished simply to go to her family in B.C. or her relative in Brampton to get assistance while she was about to give birth to her second child. I accept her evidence that she does not wish to terminate any relationship the father might have with their children, and if fact seems very willing to promote that relationship.

[4] The appellant was convicted of sexual assault on June 23, 2008 and sentenced on October 8, 2008 to imprisonment of two years less a day to be followed by three years probation. He was released on bail pending appeal on October 16, 2008. On October 27, 2008, Ms. Sihota filed a motion to vary the interim custody order to terminate the appellant’s access and to allow her to remove the children from the jurisdiction. For the first time, she alleged that the appellant had sexually assaulted his daughter. She sought an order in the family court proceedings terminating the appellant’s access and granting her permission to leave the jurisdiction. The appellant denied the new allegations. The complaint was investigated by the Childrens’ Aid authorities but no action was taken. The Office of the Children’s Lawyer declined involvement in the matter.

[5] Ms. Sihota’s motion was dismissed and the appellant’s cross motion for access to the younger daughter was granted. Leave to appeal that decision was denied on December 24, 2008. The Family Court custody proceedings continue and Ms. Sihota has not yet been cross-examined on her affidavits in part because she discharged her lawyer after notice for questioning had been served.

[6] The appellant seeks to have fresh evidence admitted on his appeal to show that the complainant’s post-conviction complaints and conduct demonstrate that, contrary to her evidence at trial and contrary to the trial judge’s finding, in making her allegations against him, Ms. Sihota was and is motivated by a desire to obtain custody of the children and leave the jurisdiction.

[7] This application to cross-examine the complainant is supported by affidavits filed in the family court proceedings, correspondence, text messages and Family Court decisions. In her affidavit filed after the appellant’s conviction in the custody proceedings, the wife states that she has denied access since the appellant’s conviction, that she “knew all along what he was capable of doing”, and that she considered it to be her responsibility to protect her children.

[8] The appellant submits that the timing and substance of the post-conviction allegations show a continuing malicious intent on the part of the complainant to use the legal process to secure custody and deny the appellant access and that, if available at trial, this evidence would have assisted the defence in establishing her malicious intent, undermining her credibility and raising a reasonable doubt as to the truth of her accusation that the appellant had sexually assaulted her.

[9] The criteria governing the exercise of an appellate court’s power to receive fresh evidence is set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 775:

• The evidence will generally not be admitted if by due diligence it could have been adduced at trial;
• The evidence must be relevant in the sense that it must bear upon a decisive, or potentially decisive, trial issue;
• The evidence must be credible, in the sense that it must be reasonably capable of belief; and
• The evidence must be such that, if believed, when taken with the other evidence adduced at the trial, it could reasonably be expected to have affected the result.

In addition, the material must constitute admissible evidence that could have been adduced at trial.

[10] While I express no view as to whether the proposed fresh evidence meets this standard at this preliminary stage, I do not accept the Crown’s submission that the fresh evidence application has no hope of success. In my view, the application is arguable and the appellant should be allowed the opportunity to make his case before the panel hearing his appeal that the fresh evidence should be admitted and a new trial ordered.

[11] The complainant’s motivation in relation to custody of the children was a central plank in the defence at trial. The complainant denied that her allegations against the appellant were so motivated, and testified that she wanted him to maintain contact with the children. It is arguable that the complainant’s post-conviction allegations and her conduct in the custody proceedings are inconsistent with her evidence at trial and with the trial judge’s rejection of the appellant’s position. The appellant faces the difficulty that the Crown insists that in its current form, the material proffered as fresh evidence is not admissible. In addition, and in any event, the panel hearing the fresh evidence application would not be able to assess it properly without the benefit of a cross-examination of Ms. Sihota.

[12] The power to order the attendance of a witness to be examined on a pending appeal is conferred by s. 683(1)(b) of the Criminal Code:

Powers of court of appeal

683. (1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

(b) order any witness who would have been a compellable witness at the trial, whether or not he was called at the trial,

(i) to attend and be examined before the court of appeal, or

(ii) to be examined in the manner provided by rules of court before a judge of the court of appeal, or before any officer of the court of appeal or justice of the peace or other person appointed by the court of appeal for the purpose.

[13] The powers conferred by s. 683 are “designed to maximize protection against wrongful convictions”: R. v. Trotta (2004), 2004 60014 (ON CA), 23 C.R. (6th) 261 at para. 24. These powers were discussed by Gonthier J. in R. v. Levesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at para. 25:

Determining the probative value of fresh evidence on appeal may be a difficult task, since the evidence has not been put to the test of cross-examination or rebuttal at trial. Some courts of appeal express reluctance when they are asked to admit fresh evidence containing information which the adverse party has not been able to verify.

In my view, where fresh evidence is challenged, or where its probative value is in dispute, it is desirable that it be tested before being admitted, primarily for two reasons: (1) this facilitates the determination of the probative value of the fresh evidence, and (2) this is fairer to the party objecting to the admissions of the fresh evidence. This “testing” can be done in a number of ways…Courts of appeal may also…allow cross-examination of a witness or submission of expert evidence in response to fresh expert evidence. In other words, they can do everything that the powers conferred on them by s. 683 of the Criminal Code permit them to do.

[14] It will only be in exceptional cases that an appellant who has been convicted of sexual assault should be afforded the opportunity to cross-examine the complainant in aid of a fresh evidence application on appeal. The interests of complainants who have already testified and been cross-examined at trial must be carefully considered and respected. They should not be forced to repeat the stress and trauma of the legal process unless clearly required by the interests of justice. The scope of any examination should be carefully circumscribed and confined to what is fresh evidence. The appellant should not be allowed to rehash ground covered at trial or to proceed on a speculative basis or “fishing expedition” to uncover fresh evidence not yet identified, but must show - to paraphrase the test for ordering Crown disclosure set out in Trotta at para. 25 - that there is some reasonable possibility that the cross-examination could assist on the motion to adduce fresh evidence by yielding material that will be admissible as fresh evidence, or assist the applicant in developing or obtaining material that will be admissible as fresh evidence.

[15] In my view, that standard has been met by the appellant. While I express no view as to the likely outcome of the appellant’s fresh evidence application, it is my view that it is in the interests of justice that the appellant be allowed to present it with the benefit of an opportunity to cross-examine the complainant on her post-conviction allegations and conduct.

[16] However, that cross-examination should be subject to certain limits to ensure that the rights and interests of the complainant are respected and that the cross-examination does not exceed the bounds of the appellant’s fresh evidence application.

[17] Accordingly, I would order that the Crown make Ms. Sihota available for cross-examination pursuant to s. 683(1)(b).

[18] In my view, the order should be subject to the following conditions:

1. The cross-examination is to be restricted to the facts arising from the complainant’s post-conviction conduct and fresh allegations against the appellant relating to the custody of and access to the children.
2. The cross-examination shall be conducted before a member of this panel at a time to be arranged through the Registrar.
3. The appellant shall not be present in the room where the cross-examination is being conducted.
4. This panel shall remain seized of this fresh evidence application and appeal.

“Robert J. Sharpe J.A.”

“I agree John Laskin J.A.”

“I agree David Watt J.A.”

RELEASED: November 5, 2009