WARNING
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. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) 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 subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) 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) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
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. 2005, c. 32, s. 15.
CITATION: R. v. A.O., 2011 ONCA 145
DATE: 20110225
DOCKET: C43725
COURT OF APPEAL FOR ONTARIO
Moldaver, Cronk and Lang JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
A.O.
Appellant
Edward L. Greenspan, Q.C. and Michael W. Lacy, for the appellant
Kim Crosbie, for the respondent
Heard: January 31, 2011
On appeal from the conviction entered on June 1, 2005, by Justice Frances P. Kiteley of the Superior Court of Justice, sitting with a jury.
Lang J.A.:
[1] On various grounds, including an application to admit fresh evidence, the appellant challenges his convictions on three counts of sexual assault and one count of administering a stupefying drug with intent to commit sexual assault.
[2] In my view, for the reasons that follow, the application for fresh evidence must succeed, with the result that I would allow the appeal and order a new trial.
BACKGROUND
[3] The appellant was convicted by a jury of sexually assaulting three complainants and administering a stupefying drug to one of them. The complainants separately attended the appellant’s business establishment after hours on different evenings, each allegedly at the invitation of the appellant to participate in a paid wine survey. All three women reported feeling ill and vomiting after drinking the proffered red wine. They also reported being sexually assaulted by the appellant.
[4] One of the complainants, R.M., reported the events on the evening they were alleged to have occurred. As a result of R.M.’s complaint, the police attended at the appellant’s premises and seized items for testing. The appellant was charged with sexual assault of and administering a stupefying drug to R.M. One of the other complainants, L.C., provided police with a report on the night of the alleged events involving her, but she deliberately provided incorrect information because she did not want the matter to come to the attention of her parents. The police subsequently located L.C. after receiving the complaint from R.M. The appellant was charged with sexual assault of L.C. The third complainant, S.Y., came forward after the police issued a media release with the intention of identifying other victims. The appellant was charged with sexual assault of S.Y. The Crown obtained a similar act ruling from the trial judge. The appellant did not testify or call any evidence at trial. The position of the defence at trial was that the accused had consensual sex with the first two complainants and there was no sexual contact with the third complainant.
[5] The trial Crown called Dr. Mayers, an expert witness in the areas of pharmacology and toxicology, to give expert evidence regarding gamma-hydroxidebutyrate (GHB). He testified that GHB can occur naturally (endogenous GHB). It can also be ingested (exogenous GHB) as a pharmacological drug for particular purposes or as an illicit date-rape drug. Naturally occurring GHB does not produce significant effects in an individual, while GHB that is not naturally occurring, which is GHB in higher concentrations, can produce significant effects. The presence of GHB can be detected through qualitative analysis, as was done by Dr. Mayers in R.M.’s case. However, whether any detected GHB occurred naturally or otherwise could only be determined by quantitative analysis.
[6] Dr. Mayers testified, in relation to R.M., that he conducted tests on the items seized by the police to determine the presence or absence of GHB. He detected the presence of GHB in a swab taken from a stall door in the women’s washroom. He also detected GHB in one of the two wine bottles, in a tissue used by R.M., and in a swab of purple stain, all of which were located and seized by the police from the bottom of a garbage bag. Dr. Mayers could not be sure whether the GHB that he had identified occurred naturally in the red wine. He said his lack of certainty arose from conflicting scientific studies on the subject.
[7] Dr. Mayers also testified that he detected GHB in one wine bottle, but not in the other. He did not state that there was any significance to this finding. Nonetheless, the Crown suggested to the jury in closing that it was significant. She effectively asked the jury to draw the inference from this evidence that the accused had spiked one bottle with GHB and not the other, pointing out that “the GHB was found only in one wine bottle.” She refuted the argument that the bottle with GHB was potentially contaminated by other liquid saying, “[i]f the inside of that wine bottle was to be contaminated, isn’t it logical to think that the bottle beside it would have been contaminated [with GHB] as well?”
[8] In closing, the Crown also relied on the expert evidence as to the effects of GHB to support the complainants’ credibility regarding the allegations of sexual assault and the effects of GHB.
THE FRESH EVIDENCE APPLICATION
[9] On appeal, the appellant seeks to introduce two pieces of fresh evidence about GHB. First, he wishes to introduce expert opinion evidence based on subsequently available literature that concludes that GHB occurs naturally in all red wine so that the presence of GHB in the seized items was not forensically significant. The same evidence would also show that the absence of GHB from the second bottle of wine indicated nothing more than that there was no residue remaining in the second bottle from which GHB could be detected.
[10] Second, the appellant wishes to adduce evidence of quantitative testing, as opposed to the qualitative testing undertaken by Dr. Mayers. This new evidence would show that GHB naturally occurred in the same brand and vintage of wine as the bottles seized by the police and tested for the expert’s opinion evidence at trial.
ANALYSIS
[11] The result of the motion depends on whether the appellant has met the well-known test for fresh evidence set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, which was reaffirmed in R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, at para. 74:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases [citation omitted].
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[12] The Crown fairly concedes the reliability and credibility components of the Palmer test. Also fairly, the Crown does not press the due diligence component of the test, recognizing that any lack of due diligence should yield to the other considerations in the circumstances of this case. The Crown, however, disputes the fourth requirement of Palmer that, if believed, the fresh evidence, when taken with the other evidence adduced at trial, could reasonably be expected to have affected the result.
[13] The Palmer criteria were most recently considered by the Supreme Court of Canada in R. v. Hurley, 2010 SCC 18, [2010] 1 S.C.R. 637. In that case, the accused was charged with second degree murder. The Crown established that the accused was one of at least two people who had been in the hotel room with the victim. The Crown called a jailhouse informant whose evidence was critical to its theory that the accused was the person who had committed the murder. The jailhouse informant testified that the accused admitted to him that he had cleaned up the hotel room to remove his DNA. If true, this evidence would have explained the limited amount of the accused’s DNA found at the murder scene. The Crown used the limited amount of DNA as independent evidence to support the testimony of the informant. Although the accused testified at trial denying the conversation with the informant, he was convicted.
[14] The Saskatchewan Court of Appeal, in a majority decision, overturned the conviction and ordered a new trial on the basis of an inadequate Vetrovec warning. Subsequently, the Crown conducted additional forensic testing that disclosed significantly more of the accused’s DNA at the scene. This was consistent with the evidence of the accused and inconsistent with the evidence of the jailhouse informant. On further appeal, the Supreme Court of Canada concluded that the fresh evidence should be admitted and a new trial ordered.
[15] In coming to that conclusion, Rothstein and Cromwell J.J., writing for the court, observed that the informant’s evidence was critical to and was relied upon by the Crown to the extent that “the Crown effectively conceded in its closing argument to the jury that [the accused] could not be convicted unless the jury accepted [the informant’s] evidence”: Hurley, at para. 18. In that circumstance, the court said that the fresh evidence had an impact “on the Crown’s theory” that the lack of DNA supported the informant’s testimony and concluded that the new evidence could reasonably be expected to have affected the result.
[16] In R. v. Reeve (2008), 2008 ONCA 340, 233 C.C.C. (3d) 104 (Ont. C.A.), at para. 72, Doherty J.A. explained the obligation of an appellate court to weigh the potential value of the proposed fresh evidence:
In testing the Crown’s argument against the admissibility of the toxicology evidence, it is important to bear in mind that the appellant does not have to show that the evidence would probably have affected the result at trial. Nor, however, is it enough for the appellant to show that the evidence is credible and relevant and could possibly have affected the result at trial. The cogency bar rests somewhere between those two standards. The appellate court must, to some extent, weigh the potential probative value of the evidence proffered on appeal. That weighing must be done in the context of the trial evidence and the positions advanced by the parties at trial. If, on that assessment, this court concludes that the toxicology evidence heard on appeal could reasonably be expected to have changed the result at trial, then the toxicology evidence is admissible on appeal subject to a consideration of the explanation offered for the failure to adduce the evidence at trial: see Re Truscott, supra at para. 100; Smith, supra at para. 91.
[17] The Crown on appeal takes issue with the application of Hurley and Reeve to the facts of this case. It argues that the new GHB evidence, if admitted, could not reasonably be expected to have affected the result. It argues this is so because there was abundant other evidence to ground the appellant’s convictions, including the similar act evidence of the three different complainants about their symptoms after drinking the wine and about the particulars of the alleged sexual assaults.
[18] However, a reading of the cross-examinations of the complainants demonstrates that there were significant challenges to their credibility, including their admissions to previous lies, some of which were told when they were under oath. While the complainants provided explanations for their lies, and there was room for debate about their significance, the appellant argues that the Crown’s theory depended on the GHB expert evidence to support the complainants’ credibility.
[19] The importance of the GHB expert evidence to the Crown at this trial was demonstrated by Crown counsel’s submissions to the jury. In closing, she reviewed the expert’s evidence. She explained that GHB was identified at the scene after R.M.’s complaint; that “the [seized] wine bottle had GHB in it” and that the “defence can provide you with no plausible reason why GHB was strewn throughout the garbage and on the stall door”. She talked about the appellant having “drugged” R.M. and “plied” her with drinks with GHB. She submitted to the jury that R.M.’s symptoms were “consistent with GHB ingestion”. Manifestly, the import of this evidence carried over to the other complainants, both of whom reported symptoms similar to those reported by R.M.
[20] Moreover, it is clear that the expert evidence of GHB was of importance to the jury. In her charge, the trial judge did not refer to naturally occurring GHB. When asked by defence counsel at trial to recharge on this point, she declined to do so. However, during deliberations, the jury requested a transcript of the expert testimony regarding the “endogenous versus exogenous GHB in the context of the wine bottle and other samples.” The jury’s question illustrates the importance of the expert evidence to the Crown’s case.
[21] With the new evidence, there would have been no scientific evidence that the complainants’ wine was laced with non-naturally occurring GHB. It follows that the new evidence that GHB occurs naturally in wine, and that it occurred naturally in this brand and vintage of wine, when taken with the other evidence adduced at trial, was sufficiently cogent that it could reasonably be expected to have affected the jury’s willingness to act on the evidence of the complainants to convict. Hence, despite the strength of the Crown’s case (three separate complainants unknown to each other giving similar evidence about symptoms after ingesting the wine and particulars of the alleged sexual assaults), I have concluded that the evidence should be admitted.
[22] For these reasons, I would admit the fresh evidence, allow the appeal, set aside the convictions and order a new trial. In my view, given the interconnection between the sexual assault evidence and the stupefying drug evidence, a new trial is necessary on all counts. In light of that conclusion, it is unnecessary to consider some of the other grounds of appeal that may or may not arise in the context of the new trial.
[23] However, two grounds merit comment.
[24] First, the trial judge declined the defence request to charge the jury regarding the inconsistencies and lies in the complainants’ evidence. Although I recognize that defence counsel did an extremely thorough and complete job of canvassing those inconsistencies in his closing, in my view, the trial judge ought to have at least provided examples of the inconsistencies and admitted untruths relied upon by the defence. This was particularly important where the credibility of the complainants’ testimony was the central component of the defence. As well, in the context of the evidence of S.Y., where the thrust of the defence was that there was no sexual contact, it would have been preferable if the trial judge had highlighted the evidence the defence relied on in support of its position.
[25] Second, in the charge to the jury, the trial judge should not have corrected remarks made by defence counsel to the jury to the effect that the complainants had committed perjury. When, in the absence of the jury, the trial judge took exception to defence counsel’s choice of language, counsel explained that he used “perjury” in the lay sense of lying under oath. In that sense, counsel’s language was consistent with the admissions of the complainants that they had previously deliberately lied under oath, albeit with some explanation. However, the issue of the complainants’ lies, the explanations for those lies, and the overall weight to be given to the complainants’ evidence were matters for the jury to decide. The trial judge’s correcting instruction may have caused confusion for the jury in assessing the complainants’ credibility and may have minimized for the jury the significance of the complainants’ admissions that they had lied under oath.
[26] In administering the correction, the trial judge clearly tried to be fair, including by also correcting the Crown on a different point. Nonetheless, the particular choice in the wording of the perjury-related correction was unfortunate, as was its placement near the end of her charge shortly before the jury retired for its deliberations.
RESULT
[27] I would admit the fresh evidence, allow the appeal and order a new trial on all counts. I note that the appellant abandoned his sentence appeal, which in any event is moot in light of the disposition of the conviction appeal.
RELEASED: February 25, 2011 “S.E. Lang J.A.”
“MJM” “I agree M.J. Moldaver J.A.”
“I agree E.A. Cronk J.A.”