COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mackenzie, 2015 ONCA 93

DATE: 20150209

DOCKET: C55529

Watt, Pepall and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Luke Mackenzie

Appellant

Michael Davies, for the appellant

Michelle Campbell, for the respondent

Heard and released orally: January 29, 2015

On appeal from the conviction entered on November 18, 2011 by Justice Paul F. Lalonde of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] Luke Mackenzie appeals several convictions arising out of an incident that occurred early on August 31, 2010. The complainant was a neighbour with whom the appellant was apparently intimate from time to time. The true nature of their relationship is not entirely clear, but it is of no moment to the issues raised on appeal.

[2] The appellant says that the convictions recorded by the trial judge are flawed because the judge relied on inadmissible evidence in reaching his conclusion that the complainant’s account of relevant events was credible and reliable and sufficient to sustain the standard of proof required of the Crown.

[3] In general terms, the evidence with which the appellant takes issue consists of:

(i) the testimony of a police officer, experienced in the investigation of domestic assaults, that the complainant’s demeanour was consistent with that of a person who had been assaulted, confined and threatened, her injuries inconsistent with her claim of falling on a doorknob, and her lack of cooperation with investigators attributable to a fear of reprisal; and

(ii) the testimony of various witnesses about what the complainant said to them about the cause of her injuries shortly after her return home from the appellant’s apartment.

[4] The evidence about the events that occurred in the appellant’s apartment and preceded the complainant’s hastened return to her nearby home came from the principals – the complainant and the appellant. Their versions differed significantly especially in connection with how the complainant’s injuries had occurred.

[5] The trial record, viewed as a whole, reveals ample reasons for close scrutiny of the credibility of the evidence of each of the protagonists and careful consideration of the reliability of their evidence.

[6] It appears clear to us that the trial judge was not prepared to rest a conclusion of guilt entirely on the testimony of the complainant. As he said:

I had to look for some corroboration of what she said happened.

Apart from his use of the term “corroboration”, which is best relegated to the dustbin of legal history, we agree with his conclusion that confirmation was desirable.

[7] The problem in this case is the evidence on which the trial judge relied for confirmation. The confirmation consisted of a combination of the opinions proffered by an investigating officer and of evidence of the complainant’s statements to her daughter and to police officers who responded to a 911 call.

[8] To take first the evidence of the lead investigator, the trial judge said this:

The evidence of Sergeant Pulfer is to be given a lot of weight. He is an officer who has during the last of 15 years has seen all kinds of domestic assault cases. He was not there when the assault took place but he could tell with a degree of certainty if Ms. Ethier’s demeanour was consistent with someone who was physically assaulted, confined and threatened with death. He saw Ms. Ethier within an hour of her coming home naked and described her as upset, crying, not saying much, both eyes swollen and having one eye closed shut. He saw the hand marks on her thighs and told the Court that they could not have been made by Ms. Ethier. The marks on Ms. Ethier’s neck were consistent with someone who had been strangled. He said that he did not believe the doorknob theory.

More importantly Sergeant Pulfer testified that he was certain that it was fear that caused Ms. Ethier’s lack of cooperation at the initial interview with the police. In other words he was telling the Court that Ms. Ethier seriously believed that harm would come to her and to her daughters if she told him what had happened.

[9] We do not dispute that the officer was entitled to testify about his observations of the physical conditions and emotional state of the complainant. But his evidence extended much further. It ventured into opinions expressed by a witness who was not qualified to express an expert opinion and beyond the “compendious statement of facts” exception for lay opinion evidence. While at least some aspects of the evidence were properly admissible as narrative, as for example, to explain why certain investigative steps were later taken, this was not the purpose for which the trial judge used the evidence. He assigned the evidence “a lot of weight” in reaching his conclusion of guilt. The irresistible conclusion is that the proffered opinions were used to shore up the credibility of the complainant and enhance the reliability of her evidence. This use was not permissible.

[10] In a similar way, the trial judge relied upon certain statements admitted, in some cases at least, as part of the res gestae, as confirmation of the complainant’s account.

[11] The relevant evidence was provided by the complainant’s daughter and several police witnesses who, as I have said, responded to the 911 call. The daughter’s evidence was proffered by the Crown under the common law res gestae exception and admitted on that basis. To the extent that the statements coincided with the complainant’s trial evidence, they were prior consistent statements not admissible for their truth, and thus not capable of providing substantive support for the complainant’s testimony. Their use however, was not so limited.

[12] After anxious consideration, we have reached the conclusion that these convictions cannot stand. The trial judge rightly sought confirmation of the complainant’s testimony in deciding whether Crown counsel had proven the appellant’s guilt beyond a reasonable doubt. The evidence upon which he relied as confirmation consisted of an amalgam of inadmissible opinion and of evidence of the complainant’s statements that was properly admissible for one purpose, but not for that purpose used by the trial judge. The absence of objection from trial counsel is a factor we have considered, but not one that is dispositive of the result, in the circumstances of this case.

[13] For these reasons, the appeal from conviction is allowed, the convictions set aside and a new trial ordered. The appeal from sentence is dismissed as abandoned.

“David Watt J.A.”

“S.E. Pepall J.A.”

“Huscroft J.A.”