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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.
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.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Graziano, 2015 ONCA 491
DATE: 20150630
DOCKET: C57218
Laskin, Epstein and van Rensburg JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Giuseppe Graziano
Appellant
Alejandro Munoz, for the appellant
Lorna Bolton, for the respondent
Heard: October 27, 2014
On appeal from the conviction entered on May 17, 2013, and the sentence imposed on June 21, 2013, by Justice Kim A. Carpenter-Gunn of the Superior Court of Justice, sitting without a jury.
Laskin J.A.:
A. Overview
[1] The appellant Giuseppe Graziano was a teacher in a Hamilton high school. After an eight-day trial before Carpenter-Gunn J., he was convicted of sexual interference with and sexual assault of J.M., a 14-year-old male student in Grade 9. He was sentenced to six months in jail. Initially he appealed both his convictions and his sentence, but he has now abandoned his sentence appeal and appeals only his convictions. The principal issue on the appeal is whether the trial judge erred by permitting the Crown to recall one of its witnesses in reply.
(a) What this case is about
[2] Two incidents in early 2011 gave rise to these proceedings, though the charges against the appellant arose out of the second incident. Credibility was the central issue at trial. The trial judge had to decide whether the appellant’s denial raised a reasonable doubt, and even if it did not, whether on all the evidence she did accept she was convinced of the appellant’s guilt beyond a reasonable doubt.
[3] The first incident occurred on January 26, at the end of a French exam J.M. was writing. The appellant was not J.M.’s teacher, but he was monitoring the exam. During the exam, the appellant had assisted J.M. with some of his answers, even, according to J.M., writing out several answers in J.M.’s exam booklet.
[4] J.M. testified that as he was leaving the exam room, after handing in his booklet, the appellant said to him “you know you owe me, right?”, made a gesture suggesting a “hand job”, and then said “something like a blow job”. In his testimony the appellant admitted saying “you owe me”, but denied making a hand gesture or saying anything suggestive of a blow job.
[5] The second incident occurred two weeks later, on February 9. J.M. had been suspended from school for three days for his role in encouraging a fight between some other students. Just after the suspension had been imposed, the appellant saw J.M. in the hallway. The appellant testified that J.M. seemed angry, and that he asked to come inside the appellant’s classroom so he could vent about the suspension. J.M. testified that the appellant asked him to come in and discuss the French exam. Both agreed that the room was darkened or dimly lit, and that the appellant and J.M. were alone in it for about 30 minutes. J.M. testified that while he was there, the appellant asked him how big his penis was and whether he had ever done anything with another guy. He told J.M. not to tell anyone what he had said. As J.M. was leaving, the appellant asked to see his penis, to which J.M. said no. The appellant then touched J.M.’s penis over his clothes. The appellant denied that he had asked about or touched J.M.’s penis.
(b) The trial judge’s reasons for conviction
[6] The trial judge’s reasons are lengthy. She set out in detail the evidence of each witness. And she gave several reasons why she was convinced beyond a reasonable doubt of the appellant’s guilt.
[7] Pivotal to the trial judge’s assessment of the evidence were J.M.’s reactions and demeanour after the February 9 incident in the classroom. By all accounts, even that of the appellant, J.M. was angry and emotional on the afternoon of February 9. The defence’s theory was that J.M. was angry because he had been suspended from school and would not be permitted to play in an important basketball game. The Crown’s theory was that J.M was angry and emotional, even tearful, according to some witnesses, because he had been sexually assaulted. In accepting the Crown’s theory, the trial judge relied on video surveillance evidence and on the evidence of two of his classmates and that of an educational assistant, the first adult to whom J.M. disclosed what the appellant had done.
[8] The school had a video surveillance system, which, though not used in the classrooms, intermittently scanned the school’s hallways. The video captured some of J.M.’s movements on February 9 after he left the classroom, including when he approached the appellant to speak to him about 30 minutes later. It also showed a conversation between J.M. and Vice-Principal Tim Hogan, who had suspended him. The trial judge found that the video corroborated J.M.’s evidence, as it showed that his anger was directed not towards the vice-principal, but towards the appellant.
[9] Two of J.M.’s classmates, who saw J.M. on February 9 after he left the classroom, and the educational assistant, who saw him both before and after the classroom incident, all testified about J.M.’s changed demeanour. In the light of this evidence and the video surveillance, the trial judge found that J.M.’s change in demeanour was attributable to the sexual abuse, not to his suspension.
[10] The trial judge also gave two other important reasons for rejecting the appellant’s evidence. The first was the appellant’s response when he was called to a meeting at the principal’s office on February 10, the day after the classroom incident. The appellant was told that an allegation had been made against him and that he was being suspended from teaching. He was not told the nature of the allegation, who had made it, or even whether the complainant was a male or a female student. Yet when told of the suspension, the appellant immediately asked, “Is this about [J.M.]?”
[11] The other reason the trial judge gave for rejecting the appellant’s evidence arose out of the appellant’s brief encounter with Vice-Principal Hogan on February 9, shortly after the classroom incident. As I will discuss, the evidence of the appellant and Hogan about what was said at that meeting differed significantly. The trial judge accepted the evidence of Hogan, whom she found to be a thoughtful and credible witness.
[12] The trial judge then summarized her reasons for convicting the appellant:
[M]y decision is primarily based on the independent video evidence, the post-event demeanour evidence, and the fact that there was no motive for [J.M.], the complainant, to lie about the evidence against the accused, combined with the events of the meeting of February 10, 2011, and also combined with the corroborating evidence of the other witnesses that I have articulated.
(c) The grounds of appeal
[13] In his factum, the appellant raised numerous grounds of appeal. In oral argument, however, the appellant’s counsel narrowed his appeal to three submissions. His first and main submission was that the trial judge erred by permitting the Crown to call Vice-Principal Hogan in reply. More specifically, the appellant argued that the trial judge erroneously concluded Hogan’s reply evidence was permissible under the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L. (Eng.)), yet gave no reasons for her conclusion.
[14] The appellant’s second submission was that the trial judge improperly relied on the evidence of three parties who were not called as witnesses. The appellant’s third submission was that the trial judge failed to resolve inconsistencies in the evidence of J.M., which undermined the reliability and credibility of his evidence.
[15] For the reasons that follow, I would not give effect to any of the appellant’s submissions. I would therefore dismiss his appeal.
B. The issues on appeal
(1) Did the trial judge err by permitting the Crown to call Hogan in reply?
(a) How the issue arose
[16] The Crown called as one of its witnesses, Vice-Principal Tim Hogan. In his evidence, Hogan acknowledged that on the afternoon of February 9 he met briefly with the appellant in the hallway. In cross-examination he was asked:
Q. All right. So, you’re there for a very brief period of time?
A. Yes.
Q. Exchanged pleasantries with Mr. Graziano?
A. I don’t recall, but I could have.
Q. Okay. It would be the normal thing to do, at least acknowledge that he’s there; right?
A. Yes, sure.
[17] Hogan was not questioned further about his brief encounter with the appellant.
[18] The appellant testified. During his examination-in-chief, he said that when he spoke with J.M. in the classroom, J.M. was extremely upset about his suspension and was angry at Vice-Principal Hogan. The appellant said J.M. swore and called Hogan a “fucking asshole”. Shortly after J.M. left the classroom, the appellant encountered Hogan in the hallway.
[19] The appellant claimed that during their encounter, Hogan commented to him, “that kid [J.M.] is strange”. Defence counsel then said to his client, “I think I have to stop you there, because I don’t want to hear that”.
[20] Crown counsel, however, objected that the comment the appellant attributed to Hogan had never been put to Hogan when he testified. Defence counsel then suggested that Crown counsel could ask the appellant about his encounter with Hogan.
[21] In cross-examination, Crown counsel put to the appellant that he had said nothing to Hogan about J.M.’s anger or that J.M. (according to the appellant) was “vitriolic” toward Hogan and had called him a “fucking asshole”. The appellant responded, “oh, yes, I did”. The Crown again complained that the appellant’s evidence had not been put to Hogan when he testified. Eventually the trial judge intervened and observed that a potential remedy was available: the Crown could recall Hogan. Defence counsel said nothing and the Crown continued his cross-examination about what the appellant had said to Hogan.
[22] The appellant then testified that he had a more detailed conversation with Hogan than a mere exchange of pleasantries, as Hogan had testified to in his evidence. The appellant repeated that Hogan had said “that kid is weird”. The cross-examination continued:
Q. Okay, sir. But, did you go so far as to say, “This was something I’ve never seen before, Mr. Hogan. This kid was out of control. He was calling you every name in the book. And, I’m telling you, he’s one angry kid. In fact, he left here saying the first person he sees, he’s going to punch out”?
A. Correct.
Q. Did you tell him all that?
A. Well, I did say, “He has been calling you effin’ asshole up and down and he was very angry.” He says, “I don’t care. That’s my job.”
Q. But, I’m curious. Why couldn’t Mr. Hogan have been asked that? I guess maybe you don’t know the answer to that. But, is this something you told Mr. Markle?
A. Yes.
Q. I see. And, you have related to Mr. Hogan the concerns you had for his safety, the extent of the tirade by young [J.M.] in the room. And, did you explain to him that you had, in fact, harboured [J.M.] for the 35 or 40 minutes?
A. Well, it wasn’t 35, no, 40. It was less than that. But, yes, I did tell him.
Q. I see.
A. I had nothing to hide. I explained to Mr. Hogan everything that had gone on. We had a brief discussion, the two of us. And, that was that.
[23] The next morning, counsel discussed how to deal with the appellant’s testimony about his conversation with Hogan, which Hogan had not been asked about. The Crown and the trial judge thought that the rule in Browne v. Dunn came into play. The trial judge said:
And, I made the suggestion yesterday that one way of dealing with it is to re-call Mr. Hogan. And, we’ve got to be sensitive and alive to Browne v. Dunn on the one hand, and we don’t know – we can’t split the case on the other hand, but it is an important area.
[24] And then a few minutes later, the trial judge added:
But, now this issue is out there, and we have already had this other witness in the box. So, I think it is a Browne v. Dunn situation. So, I tend to agree with the Crown that it is that type of situation. So, the question is, what do we do about it, at this point?
[25] The Crown announced that he intended to call Hogan in reply. And, just before court adjourned for the day, the Crown reiterated that he intended to re-call Hogan. Defence counsel did not then raise any objection to re-calling Hogan.[^1]
[26] Hogan testified in reply. He denied having the conversation with the appellant to which the appellant testified. He did not refer to J.M. as strange, and the appellant never told him J.M. had called him “a fucking asshole”. Hogan said that had J.M. done so, he would likely have increased the length of his suspension.
(b) The submissions at trial on Browne v. Dunn
[27] After Hogan’s reply evidence concluded, the trial judge heard submissions on a number of issues, including Browne v. Dunn. The majority of these submissions concerned the appellant’s testimony about what J.M. said to him. The Crown objected that statements attributed to J.M. were not put to him during cross-examination. The Crown said it did not wish to recall J.M., but asked that the trial judge apply the rule in Browne v. Dunn and give little or no weight to the appellant’s testimony.
[28] Defence counsel submitted that the rule in Browne v. Dunn had not been breached and that the court should not discount the appellant’s evidence. Like the Crown, the majority of the defence submissions concerned the appellant’s evidence about J.M. and whether Browne v. Dunn applied to that part of his testimony.
[29] Defence counsel’s submissions about Hogan largely concerned an issue related to solicitor-client privilege. With respect to Browne v. Dunn, defence counsel did object that it was improper for the Crown to elicit answers during cross-examination in order to rely on the rule. However, defence counsel never expressed any objection to Hogan’s having been called as a reply witness. Nor did he suggest that Hogan’s evidence should not be relied on.
(c) The trial judge’s reliance on Hogan’s evidence
[30] The trial judge found Hogan to be a credible witness and relied heavily on his evidence to disbelieve the appellant’s testimony about the incident in the classroom with J.M. Indeed, the trial judge referred to Hogan’s evidence and why she accepted it over the appellant’s evidence in three separate passages in her reasons. First she said:
Where there is a conflict between the evidence of the accused and Mr. Hogan, the Vice Principal, I accept the evidence of Mr. Hogan. Mr. Hogan is an independent witness to the matters in issue. I find he was a thoughtful, credible witness. I was impressed by his demeanour.
Mr. Hogan denied many statements that the accused said were part of the conversation between the accused and Mr. Hogan. For example, that the accused told Mr. Hogan that [J.M.] had called him, “A fucking asshole.” I accept Mr. Hogan’s evidence that had this information been given to Mr. Hogan, he would have increased [J.M.’s] suspension and he would have been shocked.
[31] Then:
I found Mr. Hogan’s evidence to be credible. I found Mr. Hogan’s evidence discredits the accused’s evidence as to what he said he had told Mr. Hogan.
This finding leads me to the conclusion that the accused’s testimony about what took place in the classroom on February 9, 2011, should not be accepted. Rather I accept [J.M.’s] testimony as to what took place in the classroom on February 9, 2011.
[32] And finally:
I also note that the reply evidence of Mr. Hogan was unchallenged by the defendant. Given this, I find an inference can be made that Mr. Graziano lied about what he says was the substance of the conversation between he and Mr. Hogan.
I find if Mr. Graziano had said things to Mr. Hogan on February 9th that he says were discussed that the meeting of February 10 in the school office would have been quite different than it in fact was.
[33] Hogan’s evidence, including his reply evidence, was central to the trial judge’s credibility findings. If she erred in permitting the Crown to call Hogan in reply, then the appellant would be entitled to a new trial.
(d) Discussion
[34] The trial judge viewed the issue as one calling for consideration of the rule in Browne v. Dunn. The appellant submits that if that was her view, she erred by failing to give any reasons for concluding that the rule allowed the Crown to call Hogan in reply.
[35] I do not think that the rule in Browne v. Dunn applies to the situation that arose on the appellant’s cross-examination. This court summarized the rule in R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 44 O.R. (3d) 628 (C.A.), at p. 636:
This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box.
[36] Here, however, defence counsel did not call contradictory evidence from his client. Quite the contrary. He did not wish to lead evidence from his client about any conversation between the appellant and Hogan. Had he done so, without first putting the contradictory evidence to Hogan on cross-examination, then depending on the significance of the evidence, the rule in Browne v. Dunn might well have been breached.
[37] But the evidence the Crown wanted to address by calling Hogan in reply came from the appellant almost entirely during his cross-examination. Thus, to the extent the trial judge relied on the rule in Browne v. Dunn to permit the Crown to call Hogan in reply, she erred. The proper approach would have been to consider whether permitting the Crown to call Hogan in reply offended the rule that prohibits the Crown from splitting its case. In Krause v. The Queen (1986), 1986 CanLII 39 (SCC), 29 C.C.C. (3d) 385 (S.C.C.), at pp. 390-91, McIntyre J. set out the rule against case-splitting and its rationale:
The general rule is that the Crown, or in civil matters the plaintiff, will not be allowed to split its case. The Crown or the plaintiff must produce and enter in its own case all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case with respect to all the issues raised in the pleadings; in a criminal case, the indictment and any particulars… The underlying reason for this rule is that the defendant or the accused is entitled at the close of the Crown’s case to have before it the full case for the Crown so that it is known from the outset what must be met in response. [Citations omitted.]
[38] In my opinion, however, the Crown’s calling Hogan in reply did not breach this rule. In Krause, at p. 391, McIntyre J. discussed the exception to the rule against case-splitting – that is, when the Crown may be entitled to call reply evidence:
The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raised some new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could not reasonably have anticipated.
[39] It seems to me the exception referred to in Krause applies here. In his examination-in-chief, the appellant had testified about J.M.’s angry and vitriolic comments about Hogan. He had also testified, albeit briefly, that he and Hogan discussed J.M. It was reasonable for the Crown to test the appellant’s evidence, as he did, by suggesting that if J.M. had said the things the appellant claimed, the appellant would have reported the exchange to Hogan. The appellant claimed he did tell Hogan, and recounted their conversation. And, even though defence counsel intentionally chose not to question his client about his conversation with Hogan, it was the appellant who brought up the conversation during his examination-in-chief, and expanded on it under cross-examination.
[40] The Crown could not reasonably have anticipated the appellant’s evidence about his conversation with Hogan, and thus had no opportunity to deal with it during Hogan’s examination-in-chief. And it was important evidence because unless it was contradicted, it seemed to support the defence’s theory that J.M. was angry and emotional because of his suspension from school, and not because he had been sexually assaulted. Thus, I think it was within the trial judge’s discretion to permit the Crown to call Hogan in reply. Moreover, defence counsel at trial made at most a lukewarm objection to this reply evidence being called. Accordingly, I would not give effect to the appellant’s main ground of appeal.
(2) Did the trial judge improperly rely on the evidence of three parties who were not called as witnesses?
[41] In her lengthy reasons, the trial judge referred to an email from a woman named Nancy Brown, who apparently commuted daily to the school with the appellant. The appellant had been ordered by the school board not to talk to anyone about the incident with J.M. The contents of Ms. Brown’s email suggested he had breached this order, and the trial judge so found. Nancy Brown, however, was not called as a witness at trial. Her email was thus inadmissible hearsay.
[42] The Crown on appeal acknowledges that the trial judge should not have used the contents of the email to comment adversely on the appellant. However, the Crown submits the trial judge’s error in doing so was harmless. I agree. In rejecting the appellant’s evidence the trial judge did not rely on the email.
[43] Similarly, in her lengthy narrative of the evidence, the trial judge referred to statements given by two other students. Although neither student was called as a witness, and thus their statements were inadmissible hearsay, the trial judge did not rely in any way on either student’s statement.
[44] I would dismiss this ground of appeal.
(3) Did the trial judge err by failing to resolve inconsistencies in the evidence of J.M.?
[45] The appellant submits that there were inconsistencies in J.M.’s evidence, that they undermined the reliability and credibility of his testimony, and that the trial judge erred by failing to resolve these inconsistencies. I do not agree with the appellant’s submission.
[46] The trial judge expressly addressed inconsistencies in J.M.’s evidence. But she found that on the two critical questions – what happened on January 26 during the French exam and what happened on February 9 in the classroom – “the thrust of [J.M.’s] evidence remained the same.” She did not err in that finding. Thus, I would not give effect to this ground of appeal.
(4) Other issues
[47] The appellant raised several other issues in his notice of appeal and his factum, which he did not press in oral submissions. These included that the trial judge erred in her application of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742; that she erred in not ruling on whether the Crown had improperly asked the appellant to waive solicitor-client privilege; and that she erred in admitting similar fact evidence. As I have said, the appellant did not pursue these issues and I see no merit to them. I would dismiss these grounds of appeal.
C. Conclusion
[48] I would dismiss the appellant’s appeal from his convictions. The sentence appeal is dismissed as abandoned.
Released: June 30, 2015 “JL”
“John Laskin J.A.”
“I agree Gloria Epstein J.A.”
“I agree K. van Rensburg J.A.”
[^1]: Crown counsel said he may also wish to call J.M. in reply because the appellant had given evidence about his conversations with J.M. which were not put to him in cross-examination. Defence counsel did express concerns about recalling J.M. This concern did not have to be resolved because the Crown elected not to call J.M. in reply.