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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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).
486.4(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.
486.4(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.
486.4(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.
486.6(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 Information
Court of Appeal for Ontario
Date: 2017-06-08
Docket: C57359
Judges: Feldman, Gillese and Pepall JJ.A.
Between:
Her Majesty the Queen Respondent
and
Wayne Michael Sanderson Appellant
Counsel:
- Mark Halfyard and Breana Vandebeek, for the appellant
- Andrew Cappell, for the respondent
Heard: February 2, 2017
On appeal from: The conviction entered on December 7, 2012 by Justice Bonnie L. Croll of the Superior Court of Justice, sitting without a jury.
Decision
Pepall J.A.:
A. Introduction
[1] The appellant was charged with eight counts of sexual assault of an historical nature. He was acquitted of six counts relating to one complainant that were alleged to have taken place in the years 1982 and 1984. He was convicted of one count of indecent assault and one count of gross indecency relating to the complainant TS for which he received a 12-month conditional sentence which has now been served. The events in issue took place in 1978. He appeals from the two convictions. For the reasons that follow, I would dismiss the appeal.
B. Background Facts
[2] TS was a skater. The appellant became her skating coach when she was 14 or 15 years old and he was 21. In the late fall of 1978, when she was 16, the complainant asked the appellant to drive her home from skating one night. When asked, the appellant hemmed and hawed because he had to get back to the rink for his next lesson. In the end, he did drive her home.
[3] At trial, the appellant was self-represented but had the assistance of amicus in the cross-examination of the complainant. Both the complainant and the appellant testified. Their descriptions of events on their arrival at the complainant's home that evening varied.
(1) Complainant's Evidence
[4] I will first describe the complainant's evidence. At trial, she testified that when she and the appellant arrived at her home, the appellant initially declined her offer to come into her home for a drink but moments later, he knocked on the door. She gave him something clear to drink, a soft drink or water, and after taking one sip, the appellant told her there was something that he always wanted to do. She testified that he then kissed her, put his hands down her pants and touched her pubic area. She pushed him away and asked, "What about your wife, MJ, don't you love her?" to which he replied that of course he did. He then asked whether she wanted to go upstairs for a "quickie". She told him that it was not a good idea as her parents were not home and the neighbours would be checking on her. The appellant then left.
[5] In cross-examination, the complainant testified that although she had a huge crush on the appellant when he was her coach, she was angry and scared by his behavior that night. Amicus questioned her about her boyfriend ("MS"), the state of their relationship, and how the complainant might have used a false story about their mutual skating coach to make her boyfriend jealous:
Q.: Well, I am suggesting that you told your boyfriend that you guys were fighting, kind of rocky, and you told him that [the appellant] had shown interest in you and your boyfriend went out and confronted him in the parking lot?
A.: I don't know anything about that.
[6] The complainant acknowledged that her relationship with MS was "rocky" at that time, but denied telling him about the incident at the time it happened and had no recollection of MS ever confronting the appellant in the parking lot of the rink.
[7] The complainant testified that she did not tell anyone for a while and only told MS after they both stopped taking lessons from the appellant in April 1979.
[8] The complainant went to the police about this incident in 2009 after learning of the other charges the appellant was facing.
(2) Appellant's Evidence
[9] Turning then to the appellant's evidence, he denied all the allegations made against him and denied that he went into the complainant's house.
[10] He testified that he was able to drive her home and only be a few minutes late for his lessons depending on the traffic. He had some 15 minutes while the ice was flooded before his next lesson and he calculated that he would be, at most, one to three minutes late if he drove the complainant home. He also testified that the ride to her home was about ten minutes each way.
[11] He gave evidence on coaching practice at the time and testified that the coaching and scheduling arrangements were such that he would never ask another coach to watch his students until he arrived. He also testified about the strictness of ice time and that coaches were not permitted to be on the ice beyond their allocated time.
[12] After driving the complainant home, the appellant returned to the rink to give his private figure skating lessons. The lessons did not have a free skate component where the coach did not need to be in attendance.
[13] The appellant testified in chief that he had a confrontation with MS in the parking lot of the skating rink a couple of days after he drove the complainant home. He testified that MS asked him why he kissed the complainant. He replied that nothing had happened and that he did not know what MS was talking about. He told MS that if he had a complaint, he should go to the president of the skating club. The appellant was then cross-examined on his evidence about this alleged parking lot confrontation and his version of events remained unchanged.
C. Trial Judge's Decision
[14] In reviewing the evidence, the trial judge observed that given the appellant's testimony that the ride to the complainant's home was 10 minutes each way, this would suggest that the appellant would be at least more than five minutes late for his next lesson. She found that the appellant's evidence that he could have driven the complainant home and returned in time for his next lesson did not ring true, especially in light of his apparent conscientiousness as a coach.
[15] She said:
Stated differently, timing was the focus of [the appellant's] evidence – the time for the drive to and from [the complainant's] house, and the timing of the lessons and ice time – and the contradictions and inconsistencies on this issue cause me to reject his evidence. For these reasons, [the appellant's] evidence does not leave me with a reasonable doubt about his guilt.
[16] The trial judge found the complainant to be clear and logical in her evidence and her evidence was "sequential, common sensible and credible". The trial judge was satisfied that the appellant kissed and touched the complainant in the manner she described and that she did not consent to this activity. Having considered the circumstances as a whole, she was satisfied beyond a reasonable doubt of the appellant's guilt.
D. Analysis of Grounds of Appeal
(1) Credibility Findings
[17] The appellant challenges the trial judge's credibility findings. He submits that the trial judge's assessment, including her basis for rejecting the appellant's evidence, under the first and second branches of R. v. W.D., [1991] 1 S.C.R. 742 was unreasonable, as was her assessment of the complainant's evidence under the third branch of W.D.
[18] I do not accept this submission. As the appellant readily acknowledged, assessments of credibility are entitled to strong deference on appeal. An appellate court may only intervene if the credibility findings are based on palpable and overriding error. No such error is present here. The trial judge's reasons for her credibility findings were admittedly brief but they did explain why, following a four-day judge alone trial, she found as she did.
[19] The trial judge rejected the appellant's version of events as a result of perceived inconsistencies between the appellant's version of what occurred and his skating schedule and coaching practices. She observed that timing was the focus of the appellant's evidence. In essence, she found that his testimony of professed rigorous adherence to the skating schedule such that he could not have spent much time at the complainant's home was at odds with his willingness to be late for the lesson on the night in issue.
[20] As for her findings relating to the complainant, the trial judge clearly accepted her evidence and her findings are not infected by any error in that regard.
(2) Reply Evidence
[21] The appellant's other arguments relate to the evidence called in reply by the Crown.
[22] At the commencement of the trial, the trial judge made an order excluding witnesses. When the complainant began to give her evidence-in-chief, amicus observed that the complainant's husband, MS, was present in the courtroom. The Crown advised the court that she was not calling him as a witness and did not know if amicus potentially could. The exchange continued:
Judge: Counsel, there's an order excluding witnesses and if there's a possibility that [the complainant's] partner is going to be a witness for either side, we've got an order.
Crown: It wouldn't be from the Crown. He has never spoken to police. It's just my friend is anticipating defence evidence and what might be revealed from that.
Amicus: I was just alerting my friend to a point, but I will leave it at that.
Court: All right, so we are content.
Amicus: We can continue.
[23] Following this exchange, the complainant was asked about MS in cross-examination:
Q. I am going to suggest to you that, in fact, you never confronted [the appellant] about this, what you did do was you told [MS] about it at that time when you were 16 and it was [MS] that went and confronted [the appellant] in the parking lot of the arena. Does that ring a bell?
A. No, not at all.
Q. So that's not your recollection?
A. I don't recall any of that.
Q. Okay. But do you recall telling - - your recollection is that you told [MS] later than that, told your husband, [MS], later?
A. Yes, absolutely. I didn't tell him until after we were done with [the appellant] because I was afraid to.
Q. Well, I am suggesting that you told your boyfriend that you guys were fighting, kind of rocky, and you told him that [the appellant] had shown interest in you and your boyfriend went out and confronted him in the parking lot?
A. I don't know anything of that.
Q. And in fact invited him to make a complaint if that was the case to the president of the arena. You don't have any recollection of that?
A. No, not at all. I actually don't have any idea what you are talking about, the president of the arena. Are you talking about the president of our club?
Q. Of the club, sorry.
A. No, I had no thoughts or any idea of anything like that ever happening.
Q. No, you didn't make a complaint at that time?
A. No, no. Like I said, I didn't say anything to anybody. I told my girlfriend Cheryl from high school. I told her. She was the first person and only person I had told and after we were finished with [the appellant], I then told [MS], my boyfriend at the time. Those were the only people that ever knew up until more recently.
Q. And I understand that this Cheryl you don't know her last name?
A. I can't remember what her last name is, no. I don't remember.
Q. And you have lost all touch with her so we don't have any way of getting a hold of her?
A. She was a high school friend, you know. I haven't kept in touch with anybody from high school.
Q. And so the only other person that you told then was [MS]?
A. Exactly.
[24] As I have previously described, the appellant then gave evidence that he was confronted by MS in the parking lot where MS accused him of having kissed the complainant.
[25] Following the appellant's testimony, the Crown sought to call MS in reply. The trial judge observed that the issue of the confrontation arose during the Crown's case in chief because it was raised during the cross-examination of the complainant. She also noted that the Crown is prohibited from introducing evidence that initially should have been part of the Crown's case.
[26] However, she accepted the Crown's submission that there was no positive evidence adduced in the cross-examination of the complainant, in that she had responded that she did not know anything about the confrontation. The questions had been suggestive in nature and had not elicited any actual evidence.
[27] The trial judge stated at p. 362:
[T]he Crown can lead further evidence to rebut evidence that you have introduced. The question is the Crown is right; it isn't evidence when [ amicus ] merely asks a question about it, it's evidence when you introduce it and the Crown is entitled to do that.
The Crown is prohibited from introducing evidence that should initially have been part of the Crown's case, but there is no evidence about this. There has [ sic ] only been questions about it, so I am prepared to let the Crown call the rebuttal witness, but it is very clear to me and it is clear to you and certainly the Crown is aware that the weight to be given to this evidence is potentially affected by the fact that he has been in here the entire time, no question about that, and that [the complainant] was under no prohibition to not discuss things after her evidence concluded as well.
[28] She went on to say that the weight to be given to the evidence was potentially affected by the fact that MS had been in the courtroom during the trial and the complainant had not been under any prohibition to refrain from any discussions following the conclusion of her evidence. Ultimately, she permitted the Crown to call MS in reply.
[29] MS then testified that the confrontation described by the appellant did not take place. MS only heard from the complainant about the inappropriate behaviour after the skating season had ended.
[30] The trial judge did not refer to any of the evidence given in reply in her reasons for decision.
[31] On appeal, the appellant submits that the trial judge erred in admitting the reply evidence. He relies on two grounds: first, allowing the reply evidence improperly permitted the Crown to split its case, and second, it offended the collateral fact rule.
Splitting of Crown's Case
[32] Dealing first with the issue of splitting the Crown's case, the general rule is that the Crown is not allowed to split its case. As stated by McIntyre J. in R. v. Krause, [1986] 2 S.C.R. 466 at p. 473, as part of its case, the Crown must enter all the clearly relevant evidence it has, or that it intends to rely upon, to establish its case with respect to the issues raised in the indictment and any particulars. As McIntyre J. explained, at the close of the Crown's case, the accused is entitled to know the full case that must be met.
[33] In R. v. G.P., 31 O.R. (3d) 504 (C.A.), Rosenberg J.A. observed at p. 514, that both the rule against splitting the Crown's case and the collateral fact rule attempt to balance fairness to the parties with the need for trial economy:
They are designed, so far as is possible, to avoid unfair surprise, confusion of the issues, and prejudice. The rules ensure that trials are not unduly prolonged but that, as it was put by McIntyre J. in Krause … "at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other".
[34] However, where the defence evidence raises a new matter, a new fact, or a defence which the Crown had no opportunity to deal with, or could not have reasonably anticipated, McIntyre J. observed in Krause at p. 474:
[T]he 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 … could not reasonably have anticipated. But rebuttal will not be permitted regarding matters which merely confirm or reinforce earlier evidence adduced in the Crown's case which could have been brought before the defence was made.
[35] As Rosenberg J.A. noted in G.P. at p. 514, despite the broad language from Krause, it has always been understood that the trial judge has discretion to admit evidence in reply concerning an issue that was of only marginal importance during the prosecution's case in chief, but took on added significance as a result of the defence evidence.
[36] The Supreme Court in R. v. Chaulk, [1990] 3 S.C.R. 1303 at p. 1364, adopted the following statement from R. v. Drake, 1 C.C.C. (2d) 396 (Sask. Q.B.):
There is a well-known principle that evidence which is clearly relevant to the issues and within the possession of the Crown should be advanced by the Crown as part of its case, and such evidence cannot properly be admitted after the evidence of the defence by way of rebuttal. In other words, the law regards it as unfair for the Crown to lie in wait and to permit the accused to trap himself. The principle, however, does not apply to evidence which is only marginally, minimally or doubtfully relevant.
[37] Bearing these principles in mind, I turn to the appellant's submissions. The appellant argues that, in compliance with the rule in Browne v. Dunn, (1893), 6 R. 87 (H.L. (Eng.)), amicus questioned the complainant on the confrontation between MS and the appellant and on when she told MS about the incident. He submits that the issue of MS's evidence was therefore foreshadowed by amicus' cross-examination of the complainant and the Crown was on notice to call evidence on the issue in its case in chief.
[38] It is true that compliance with Browne v. Dunn, as a general matter, may give "notice" of potential issues that the opposing party wishes to explore. That does not mean, however, that every suggestion put to a witness in compliance with the rule in Browne v. Dunn, or any question which foreshadows a possible attack on a witness's credibility, necessitates the Crown calling evidence on the issue in its case in chief. Such a rule would amount to chasing after every shadow. This is particularly true where the witness has not accepted a suggestion advanced and where, at the end of the Crown's case, the witness has not been successfully impeached and there is no need to rehabilitate the witness: G.P., at p. 515.
[39] Moreover, while a cross-examination may reveal part or all of an accused's defence or version of events, the relevance of a particular line of inquiry may be only marginal at this stage. As stated in McWilliams' Canadian Criminal Evidence, loose-leaf, 5th ed. (Toronto: Thomson Reuters Canada Limited, 2017), at para. 21:50:60:
[…] Sometimes the Crown learns of a possible defence before the close of its case, for example through questions asked during the cross-examination of prosecution witnesses, or as a result of out-of-court communications with defence counsel. Crown counsel thus knows that certain evidence may, or even will, be required to counter the anticipated defence.
Nonetheless, in such circumstances the rule against case-splitting does not impose a general obligation to lead the countering evidence as part of the prosecution case in chief. This is so because Crown counsel will often be unsure whether the defence will be called, and even where certain on this point will usually be unaware of its precise contours and/or the specific evidence to be presented in support. To force the Crown to call evidence to refute an anticipated defence would thus frequently waste court time and create confusion, and may also cause unfairness by forcing the Crown to call the very evidence that it seeks to refute.
[40] For these reasons, as concisely summarized in McWilliams at para. 21:50.30:
[T]he law is now clear: evidence marginally relevant, and thus strictly speaking admissible as part of the Crown case in chief, may nonetheless be admissible in reply where it takes on real significance only because of a position advanced during the defence case. Another way of saying the same thing, adopted in several Canadian cases, is that the matter to which the proposed reply evidence relates only became a "live issue" once the defence put in its case.
[41] This court's decision in R. v. Campbell, 17 O.R. (2d) 673 (C.A.) is frequently cited for this principle. In Campbell, Martin J.A. held that even though the accused's version of events was foreshadowed by the cross-examination of the complainant, its relevance was only marginal at that stage and arose when the accused testified. It was accordingly within the trial judge's discretion to admit reply evidence from the Crown.
[42] In this case, in her cross-examination, the complainant did not adopt amicus' suggestion that she had told MS about the incident shortly after it occurred and that MS had confronted the appellant in the parking lot of the skating rink. There was no affirmative evidence of any confrontation and in any event, at that stage, it had little to no relevance.
[43] Only when the appellant testified did it gain significance, not only because it contradicted the complainant's evidence that she had not told MS about the assault until much later, but because the evidence, if accepted, allowed for an inference that the complainant may have fabricated the story to make her boyfriend jealous, thus prompting a confrontation. The reply evidence became necessary to provide the trial judge with accurate facts of what happened after the assault and, from the Crown's perspective, correct the distorted picture created by the appellant's evidence that the complainant was motivated to make a false allegation and use the false story to make MS jealous, thus provoking a confrontation between MS and the appellant.
[44] Finally, I would note that even if one concluded that MS's evidence could or should have been called in the Crown's case in chief, it cannot be said that allowing the reply evidence created an unfair advantage in favour of the Crown, nor that the appellant was caught off guard by the evidence. It was the appellant who anticipated the issue through his cross-examination of the complainant. Moreover, the Crown was not "in possession" of any evidence from MS. It is apparent from the transcript that he had not given a statement to the police and that the Crown did not anticipate MS to be a witness in the proceedings. Lastly, it bears noting that this was a judge alone trial and the risk that the late introduction of the evidence might magnify its importance beyond what was warranted is much less significant: R. v. T.K., 2013 ONCA 257 (Ont. C.A.), at para. 46; R. v. Markman, [2002] O.J. No. 4250 (Ont. C.A.), at para. 3.
[45] In summary, when the complainant was cross-examined, the relevance of the evidence about MS was, at best, marginal. It was within the trial judge's discretion to permit MS to be called in reply in this judge alone trial. Moreover, the evidence provided the trial judge with a more complete and accurate picture of what actually happened. The appellant incurred no prejudice as a result of the trial judge's decision to allow the reply evidence. In these circumstances, it was properly within the trial judge's discretion to permit the Crown to call MS in reply. I would therefore not give effect to this submission by the appellant.
No Contravention of the Collateral Fact Rule
[46] This brings me to the second arm of the appellant's submission on the reply evidence, namely that it impermissibly contravened the collateral fact rule. In G.P., at p. 516, Rosenberg J.A. summarized the effect of the collateral fact rule:
The effect of the collateral fact rule is that, subject to certain exceptions, a party is not entitled to introduce extrinsic evidence to contradict the testimony of an adversary's witness unless that extrinsic evidence is relevant to some other issue in the case other than merely to contradict the witness.
[47] Watt's Manual of Criminal Evidence (Toronto: Carswell, Thomson Canada Limited, 2002), describes the rule as follows at para. 22.03, p. 265:
The collateral facts rule prohibits the introduction of evidence for the sole purpose of contradicting a witness' testimony concerning a collateral fact. The rule seeks to avoid confusion and proliferation of issues, wasting of time and introduction of evidence of negligible assistance to the trier of fact in determining the real issues of the case. It endeavours to ensure that the sideshow does not take over the circus. In general, matters that relate wholly and exclusively to the credibility of a non-accused witness are collateral, hence beyond the reach of contradictory evidence.
[48] The appellant asserts that the only purpose of allowing MS to testify in reply was to impeach the appellant's credibility by suggesting that his narrative was inaccurate. I disagree. MS's evidence in this case was relevant to more than a general attack on the appellant's credibility. If believed, the evidence of MS could undermine the defence position that the complainant was an emotional teenager who, angry at the appellant because she was not special to him, and in the midst of a rocky relationship with her boyfriend, fabricated a story of sexual assault, then told that story to her boyfriend, which in turn resulted in a confrontation.
[49] The question of whether or not a confrontation happened goes to understanding the context and, in my view, bears directly on the question of whether the complainant had a reason to fabricate a story, and ultimately, on whether a reasonable doubt was raised. Rosenberg J.A. observed in G.P. at p. 516:
As part of the defence case, the appellant was entitled to lead evidence to show that Ms. P. had a motive for falsely testifying and for putting her daughter up to making a false allegation: see R. v. Busby, (1982), 75 Cr. App. R. 79 (C.C.A.); R. v. Shaw, (1888), 16 Cox C.C. 503. The appellant's evidence, if believed, cast the relationship between him and Ms. P. in an entirely different light. That evidence not only contradicted Ms. P. but provided a motive on the part of Ms. P. to fabricate her evidence. The Crown was then entitled to lead evidence, if it had any, to rehabilitate its witness by showing that she did not have the motive to fabricate alleged against her. The motive of the complainant to falsely charge the appellant was an essential element of the case. It was central to the theory of the defence and as the case was developed by the defence the relationship between Ms. P. and the appellant related to that question. Viewed this way, evidence concerning motive to fabricate could not be collateral.
[50] Similarly, in R. v. Prebtani, 2008 ONCA 735, 240 C.C.C. (3d) 237, Rosenberg J.A. explained at para. 130:
I agree with the appellant that admission of this evidence would not offend the collateral fact rule.
In this case, the cousin's evidence would not merely contradict the complainant's assertion that she did not swear at the appellant on the occasion in question. The evidence, if believed, could undermine the complainant's assertion that the appellant, rather than she, was the verbally abusive party in the relationship. It could also undermine her broad assertion that she would never swear at the appellant for fear that he would abuse her.
[51] See also R. v. Lawes, 1996 ABCA 417, 187 A.R. 321, affirmed, [1997] 3 S.C.R. 694.
[52] In this case, the evidence could serve to debunk the picture painted by the appellant that the complainant was motivated to make a false allegation against the appellant and to use that story to provoke jealousy in her boyfriend, which in turn resulted in a confrontation. I therefore would not give effect to the appellant's submission on the collateral fact rule.
E. Disposition
[53] For these reasons, I would dismiss the appeal.
Released: June 8, 2017
"KF" "S.E. Pepall J.A."
"JUN -8 2017" "I agree K. Feldman J.A."
"I agree E.E. Gillese J.A."
