Court of Appeal for Ontario
Date: July 26, 2017 Docket: C54171
Justices: MacPherson, Blair and Watt JJ.A.
Between
Her Majesty the Queen Respondent
and
Curt John Appellant
Counsel:
- Brian Snell, for the appellant
- Mabel Lai, for the responding party
Heard: November 17, 2016
On appeal from the conviction entered on June 14, 2010, and the sentence imposed on June 29, 2010, by Justice Eugene Ewaschuk of the Superior Court of Justice, sitting with a jury.
Watt J.A.:
Introduction
[1] Olivia Bow reported a car-jacking to police. In video statements she explained how it happened. She said that "Germaine" did it. Described the clothing he and his accomplice were wearing. Identified "Germaine" in a surveillance video. "Germaine" is Curt John. Police found his fingerprint on the doorframe of the stolen vehicle.
[2] At the preliminary inquiry a few months later, Ms. Bow's story left out some details. But a judge ordered Curt John to stand trial.
[3] However, at trial, Olivia Bow could not really remember any of the details of what had happened. The trial judge let the Crown introduce her videotaped statements and her preliminary inquiry testimony to prove the case.
[4] The jury decided that Curt John was guilty of robbery, but not guilty of using an imitation firearm in committing the robbery.
[5] Curt John appeals. He says that his trial was unfair because the trial judge intervened too much in his lawyer's cross-examination of Ms. Bow and made several mistakes in his charge to the jury. In addition, the trial judge imposed a sentence that did not give enough credit for time spent in custody prior to sentence.
[6] These reasons explain why I would dismiss the appeal from conviction, but allow the appeal from sentence to reflect proper credit for pre-sentence custody.
The Background Facts
[7] Olivia Bow and Curt John met about a month before the alleged offence. Bow approached John at a shopping mall. They exchanged telephone numbers and "hooked up" several times in the weeks that followed. Ms. Bow drove expensive cars, a different vehicle each time they met.
The Meeting
[8] One afternoon in late January, Bow was driving an SUV owned by a friend. She received a call from Curt John. As it happened, they were both in the Jane and Finch area of the city. They agreed to meet. Bow would pick up John at a specific exit at the Jane Finch Mall.
[9] As Bow waited in the vehicle near the mall exit, she saw John walking out of the mall with another man, a cousin, whom she had met before. This displeased Ms. Bow who had expected only John.
[10] Both men got in the SUV. John sat in the front, his cousin, in the rear.
The Plan
[11] Curt John explained to Ms. Bow that his cousin was to meet somebody nearby and needed a ride there. John directed Ms. Bow to an apartment building near Tobermory and Niska, a few minutes away from the mall. As Ms. Bow talked with the owner of the vehicle on her cellphone, John directed her to drive to the rear of the apartment building.
The Wait
[12] Curt John's cousin called the person he was to meet from the parked SUV, but the person was not available. At John's direction, Ms. Bow parked the vehicle in the parking lot at the apartment building. She, John and John's cousin waited in the vehicle.
The Robbery
[13] A few minutes later, Curt John reached behind his back, pulled out a gun and set it on his lap. He demanded money from Ms. Bow. He wanted $20,000. As she continued to talk on her cellphone, Ms. Bow explained to John that she did not have ready access to that amount of money, but she could help him out later. John's cousin took the cellphone from Ms. Bow.
[14] Curt John told Ms. Bow to get out of the vehicle so she could talk to him. She accused him of intending to steal the SUV. He denied any such intention. Satisfied, Ms. Bow complied. Outside the vehicle, John persisted in his demand for money. This time a little bit louder. Ms. Bow continued to deny having access to that amount of money. John stopped his demands.
[15] Curt John, rebuffed in his demands for money, then told Ms. Bow to walk to the back of the parking lot. She again accused him of intending to steal the vehicle. Again, he denied any such intention. Ms. Bow walked to the back of the parking lot.
The Escape
[16] Curt John got into the driver's seat of the vehicle and began to drive away. As the vehicle moved slowly away, Ms. Bow ran after the vehicle, opened the front passenger door and grabbed a handle inside. As the car sped up, her boots came off and she fell to the ground. John hit her.
The Police Report
[17] Shortly before 4 o'clock that afternoon, Ms. Bow flagged down another vehicle and called 911. She reported her vehicle had been stolen and she had been threatened with a gun. The police responded. An officer noticed a bruise under Ms. Bow's left eye. At the scene, Ms. Bow told the police that she had been hit in the face with a gun or "pistol-whipped", but she declined medical assistance.
The Police Statement
[18] The officers who responded to the 911 call took Ms. Bow back to the police station. There she gave a videotaped statement and identified Curt John (whom she knew as "Germaine") from a photo lineup. She also described the clothing he was wearing. The description matched the images from surveillance cameras at the Jane Finch mall.
The Recovery of the Vehicle
[19] About two weeks later, police recovered the SUV. An expert in fingerprint identification comparison and analysis located what was admitted to be a print of the index finger on Curt John's left hand. The print had been placed there when the driver's door of the vehicle was open.
The Preliminary Inquiry
[20] Five months later, Olivia Bow testified at Curt John's preliminary inquiry. There, she admitted that she had lied in her video statement when she told police that John had hit her.
The Trial Proceedings
[21] Prior to trial, Ms. Bow received copies of her police statements and testimony at the preliminary inquiry to review in preparation for giving evidence at trial. At various times during her testimony at trial, she claimed that neither her statements nor her evidence at the preliminary helped to refresh her memory about the relevant events. She just could not remember the details of what had occurred.
[22] The trial judge held a voir dire to determine whether the police statements and preliminary inquiry evidence should be admitted under the principled hearsay exception. Satisfied that the conditions precedent of necessity and reliability had been met, the trial judge admitted the evidence. Crown counsel never asked that either be filed as a numbered exhibit.
[23] Curt John did not testify or call any witnesses in his defence.
The Grounds of Appeal
[24] Curt John ("the appellant") appeals both conviction and sentence. On the appeal from conviction, the appellant finds fault with the trial judge's conduct during the course of the evidence of Olivia Bow and with several aspects of his final instructions to the jury. I would paraphrase the grounds of appeal in this way:
i. undue interference during the cross-examination of Olivia Bow by defence counsel;
ii. instructing the jury that they could find Ms. Bow's memory loss was due to fear of the appellant;
iii. instructing the jury on the absence of motive of Ms. Bow to fabricate her account of relevant events;
iv. instructing the jury that there was no issue that the appellant stole the motor vehicle; and
v. criticizing defence counsel's closing address to the jury.
[25] On the appeal from sentence, the appellant protests the trial judge's failure to award proper credit for time spent in pre-disposition custody.
The Appeal From Conviction
Ground #1: Interference in the Cross-examination of Olivia Bow
[26] Olivia Bow was a critical, but uncooperative witness for the Crown. The trial judge sparred with her frequently during the voir dire to determine the admissibility of her videotaped statements and her preliminary inquiry testimony, as well as during the trial.
The Essential Background
[27] In general terms, trial counsel for the appellant (not Mr. Snell) sought to cross-examine Olivia Bow on inconsistent accounts she had provided on a variety of subjects in her videotaped statements, testimony at the preliminary inquiry and in her evidence on the voir dire at trial. Among the subjects were Bow's activities as an escort and some outstanding charges she was then facing arising out of an alleged incident with a cab driver.
The Escort Business
[28] In her video statements, Olivia Bow volunteered information about her involvement in the escort business. The police were properly not concerned with the details of her work.
[29] At the preliminary inquiry, Olivia Bow denied having worked as an escort. She acknowledged that on about five occasions she had sex for money with patrons of clubs where she had performed as an exotic dancer. She had no repeat customers and stopped this activity in March, 2009. She had also made arrangements for others to have sex for money, but denied that she allowed her home to be used for these purposes.
[30] On the voir dire at trial, Ms. Bow testified that for about two years ending in August, 2009, she had worked as an escort several times each week. Sometimes, she met clients at hotels or motels and had repeat customers. She did not make arrangements for other escorts, but did let them use her place.
[31] At trial, defence counsel opened his cross-examination of Ms. Bow by questioning her on the history of her relationship with the appellant and the events of the day when she alleged the offence had occurred. Shortly after proceedings resumed after the luncheon recess (Ms. Bow was late for the fourth time), defence counsel turned to the subject of Ms. Bow's work as an escort.
[32] When defence counsel asked Ms. Bow:
You met clients at clubs?
The trial judge asked:
Okay, where are we going with this line?
Defence counsel explained that he would not be long in pursuit of this line of questioning. He proposed to repeat the questions he had asked Ms. Bow on the voir dire, the answers to which the jury had not yet heard.
[33] In the absence of the jury, but with the witness present, the colloquy between defence counsel and the judge continued:
THE COURT: …Where do you want to go, specifically?
[DEFENCE COUNSEL]: Nowhere. Just the same points that I ---
THE COURT: I don't remember the point particularly. Where do you want to go to that's additional to what you've got already?
Several clients a week; she did it for two years; she was a paid escort.
[DEFENCE COUNSEL]: Several more questions after that, m'lord, not much.
THE COURT: I want to know what general area you want to develop.
[DEFENCE COUNSEL]: Well, again, m'lord, my objection –
THE COURT: She's heard it before. She heard it two days ago. She was here. You put the questions to her. Let's not be naïve.
[DEFENCE COUNSEL]: M'lord, I'm simply trying to apply some consistency to a proceeding that has been very inconsistent. That's my sheer goal.
THE COURT: You've already done that. Multiple inconsistencies. Tell me something specific, otherwise we're going to shut it down.
[DEFENCE COUNSEL]: Where the service was to the client, working out of the home – pretty much it, m'lord.
I'm trying to address inconsistencies. That's the only reason I do this. I don't do this to offend the Court --
THE COURT: I'll give you ten more questions.
[34] Defence counsel resumed his cross-examination with a few (but not ten) questions about how Ms. Bow met her clients and set up dates for others. The trial judge interrupted:
Okay, this area's done. So let's move on to a new subject matter.
Counsel then proceeded to ask whether Ms. Bow met clients at hotel rooms. The trial judge intervened immediately:
THE COURT: We're not going to the clients. The clients are done. You've got new subject matter, go to new subject matter.
[DEFENCE COUNSEL]: Again, m'lord, my submission is, it's relevant. This was asked at the previous voir dire.
THE COURT: I've ruled on it. Thank you. Carry on. New subject matter. She's a paid escort; she received money for sex – the jury knows that – for approximately two years. Let's get on with it.
[DEFENCE COUNSEL]: There's a purpose to my question, m'lord.
THE COURT: That's it. I've made a ruling. Do you understand that, [Defence counsel]?
The Outstanding Charges
[35] On the voir dire to determine the admissibility of her video statements and preliminary inquiry testimony, Olivia Bow was cross-examined about an incident in which she was alleged to have been involved with a cab driver about a year after the offences with which the appellant was charged. As a result of the later incident, Ms. Bow was charged with mischief, assault and transportation fraud.
[36] When defence counsel began to explore the subject of the outstanding charges and, to some extent, the circumstances surrounding them, the trial judge interceded. He pointed out that Ms. Bow, who denied any participation in the events underpinning the charges, was presumed to be innocent of those charges. Further, the trial judge pointed out, counsel was bound by Ms. Bow's answers and could not adduce any evidence to contradict them.
[37] In the presence of the jury, counsel suggested to Ms. Bow that she had been involved in an altercation with a cab driver on February 5, 2010. Ms. Bow denied the suggestion. When counsel persisted by suggesting the circumstances in which the dispute arose, Ms. Bow maintained her denial. The trial judge prohibited any further questions about the incident.
The Arguments on Appeal
[38] The appellant says that in a case that depended largely, if not entirely on Ms. Bow's testimony, defence counsel was entitled to cross-examine her on inconsistencies in the various accounts she had provided. It was significant to the defence's case to show that the witness had perjured herself on details of her employment.
[39] In addition, the appellant continues, trial counsel was entitled to cross-examine Ms. Bow on the fact and circumstances of the criminal charges that were outstanding against her. Her responses were relevant to establish her character or disposition, which was in turn relevant to her credibility as a witness. The outstanding charges were also relevant to establish a motive for her to testify favourably for the Crown and adversely to the appellant, thus relevant to establish testimonial bias on her part.
[40] The appellant submits that curtailment of cross-examination on these subjects rendered the trial unfair and resulted in a miscarriage of justice.
[41] The respondent rejects any suggestion of judicial error, much less unfairness resulting from the trial judge's curtailment of cross-examination.
[42] To begin, the respondent says, the trial judge has the authority to manage the conduct of a trial to ensure that the proceedings are effective, efficient and fair to both sides. This includes supervision of cross-examination to protect witnesses from questioning that is repetitious and irrelevant to the substantive issues or the witness' credibility. Here, evidence about Ms. Bow's activities as an escort was canvassed extensively at the preliminary inquiry. The evidence adduced there was admitted at trial as proof of the truth of what was said and read to the jury. There was no need for it to be repeated.
[43] Second, it was readily acknowledged at trial that Ms. Bow had been an escort for two years. She had several clients per week. What was cut short, and properly so, were details of the places and arrangements of her sex-for-pay activities. These details were of no real probative value and could not legitimately assist the jurors in their assessment of her credibility and the reliability of her evidence.
[44] Third, the trial judge had a preview of the cross-examination on the outstanding charges, the circumstances surrounding them and Ms. Bow's responses during the voir dire. This evidence could not advance the defence position in any meaningful way. It was of dubious probative value, likely to protract proceedings and to distract the jury from its task. Further, it was strictly collateral and Ms. Bow's denials could not be contradicted by other evidence.
[45] Finally, even if the rulings imposing limitations on the cross-examination were erroneous, there was no prejudice occasioned to the appellant as a result of the trial judge's interventions. The trial judge instructed the jury that it could not accept Ms. Bow's evidence unless it was confirmed by other evidence admitted at trial.
The Governing Principles
[46] This ground of appeal may be resolved by the application of principles that describe the trial management authority of a judge presiding at a criminal trial, as well as those that govern cross-examination of non-accused witnesses on incidents that disclose their character and give rise to outstanding criminal charges.
[47] Trial judges have a firmly rooted authority to control proceedings over which they preside. In the exercise of that authority, they may intervene when counsel or witnesses fail to follow the rules or rulings made during the course of the trial. Judges are entitled to control the procedure of trial to ensure, as best they can, that the proceedings are effective, efficient and fair to all parties, including those required to give evidence: R. v. Snow, 190 C.C.C. (3d) 317 (Ont. C.A.), at para. 24; R. v. Felderhof, 180 CCC (3d) 498 (Ont. C.A.), at paras. 36-40; R. v. Valley, 26 C.C.C. (3d) 207 (Ont. C.A.), at pp. 230-32, leave to appeal refused, [1986] 1 S.C.R. xiii (note).
[48] The position of established neutrality occupied by trial judges requires them to confine themselves as much as possible to their own responsibilities, and to leave to counsel and to the jury their respective functions: R. v. Torbiak and Campbell, 18 C.C.C. (2d) 229 (Ont. C.A.), at pp. 230-31. When judges intervene, for example in the conduct of cross-examination, we begin from a strong presumption that they have not done so unduly, and that there are many proper reasons why the judge may do so: R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at para. 29, leave to appeal refused, 304 O.A.C. 395 (note), 304 O.A.C. 397 (note), and 303 O.A.C. 398 (note).
[49] The limits of permissible judicial conduct are not absolute. They are relative, a function of the idiosyncrasies of the trial proceedings in which they emerge. And so it is that every alleged departure from the accepted standards of judicial conduct during a trial requires close examination to determine its effect on the fairness of the trial in which it occurred, not in some hypothetical trial constructed for comparative analysis: Torbiak and Campbell, at p. 231; Valley, at p. 231.
[50] The analysis of judicial interventions is contextual. The interventions are not judged in isolation, rather in the context of the entire trial. We are to assess the record in its entirety and evaluate the interventions cumulatively, not as isolated occurrences: Hamilton, at para. 32; R. v. Stucky, 2009 ONCA 251, 240 C.CC. (3d) 141, at para. 72.
[51] The ultimate question to be decided is whether the trial judge's interventions create the appearance of an unfair trial to a reasonable person present throughout the trial proceedings. In making this determination, the critical focus is on what occurred in the presence of the jury. Events that took place in their absence, at least in most cases, cannot affect them or their decision: Valley, at p. 235.
[52] A specific incident of the trial judge's trial management power is the ability to control cross-examinations. While, no one can gainsay the importance of the right of an accused to cross-examine witnesses for the prosecution – indeed, we now recognize that right as being protected by ss. 7 and 11(d) of the Charter – it is a right, however jealously protected and broadly construed, that must not be abused. Counsel are bound by the rules of relevancy. It is not open season on witnesses. Counsel are barred from resorting to harassment, misrepresentation, repetitiveness or, more generally, from putting questions to witnesses the prejudicial effect of which exceeds their probative value: R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at paras. 41-44.
[53] On the other hand, where credibility is the central issue at trial, the importance of cross-examination becomes even more critical: Lyttle, at paras. 69-70. Improperly limiting cross-examination of a witness is an error. The ultimate question an appellate court must determine is whether there is a reasonable possibility that the verdict would have been different had the error not been made: Lyttle, at para. 68.
[54] I now turn to the two specific areas of cross-examination said to be improperly curtailed by the trial judge.
[55] A non-accused witness may be cross-examined on discreditable conduct, irrespective of whether that conduct amounts to an offence or has resulted in a conviction. By this cross-examination, counsel endeavours to evidence the character of the witness, which, in its turn, is a relevant factor for the trier of fact to consider in assessing the credibility of the witness and the reliability of his or her testimony: R. v. Bradbury, 14 C.C.C. (2d) 139 (Ont. C.A.), at pp. 141-142.
[56] Where the purpose of cross-examination on discreditable conduct is to establish a character trait or disposition relevant to a non-accused witness' testimonial reliability, what is elicited must be relevant to establish the character trait or disposition, which must itself be relevant to the issue of testimonial reliability. The answers of the witness relate to a collateral issue – the witness' credibility – thus may not be the subject of contradictory evidence because of the collateral facts rule.
[57] Finally, cross-examination of a non-accused witness on outstanding criminal charges and the circumstances that underpin them.
[58] The fact that a person is charged with an offence cannot degrade their character or impair their credibility: R. v. Gonzague, 4 C.C.C. (3d) 505 (Ont. C.A.), at pp. 510-511. After all, the fact of charge arises from the opinion of an informant of a reasonably grounded belief in the commission of an offence, hardly the stuff of character impeachment.
[59] Although the fact that a non-accused witness is charged with a criminal offence has no bearing on the credibility of the witness, thus cross-examination on the fact of charge would not be permitted on account of irrelevance, where a proper foundation has been laid, the cross-examination may be permitted. One basis that provides a proper foundation for cross-examination on an outstanding charge occurs when the circumstances support an inference that the witness has a motive to seek favour from the prosecution because of the outstanding charge: Gonzague, at p. 511; R. v. Chartrand, 170 C.C.C. (3d) 97 (Ont. C.A.), at para. 10; R. v. Gassyt, 127 C.C.C. (3d) 546 (Ont. C.A.), at paras. 36, 38, leave to appeal refused, 136 C.C.C. (3d) vi (S.C.C.).
[60] Two further points arise from the nature of the issue to which cross-examination on the facts underlying outstanding charges relate. Although these facts may have some relevance to the credibility of the witness, greater or lesser depending on the circumstances of each case, they are generally irrelevant to any other issue at trial. As a result, a trial judge has the discretion to curtail cross-examination so that it remains within reasonable limits and does not become more distracting than informative. Further, as a witness' answers seem likely to consist of general denials, the record will remain barren of any contradictory evidence, and a jury instruction to that effect may become necessary: Gassyt, at para 39.
The Principles Applied
[61] As I will explain, I would not give effect to this ground of appeal. I am not satisfied that the interventions of which the appellant complains caused a miscarriage of justice by compromising the actual or apparent fairness of the trial. I have reached this conclusion for several reasons.
[62] First, as the authorities teach, I begin from a presumption that the trial judge has not unduly intervened, and with a corresponding reluctance to interfere on the basis of improper intervention. The complaint here is grounded on the manner in which the trial judge exercised a specific incident of the trial management power – the authority to control the manner in which witnesses are questioned by counsel. This is a core component of the trial management power, which requires on the spot decision-making, not detached reflection based on a lifeless transcript.
[63] Second, the analysis is a contextual one which rejects any adjudication of each intervention in isolation, in favour of a cumulative evaluation in the context of the entire trial. Isolated instances of impatience or annoyance do not themselves create actual or apparent unfairness. The fundamental issue is whether, from the perspective of a reasonable observer present throughout the entire trial, the interventions created the impression of an unfair trial. They did not do so here.
[64] Third, the interventions did not prevent, or even significantly impede, defence counsel from advancing the appellant's defence at trial that Bow was a witness unworthy of belief whose testimony fell far short of the standard of proof required of the Crown.
[65] Fourth, consider the two subjects of cross-examination about which complaint is made – disreputable character as evidenced by employment as an escort, and outstanding criminal charges. The former, if at all relevant, lies at the outer boundaries of relevance. The evidence has no substantive purpose, and is of tenuous probative value on the issue of credibility. Further, as we have seen, the mere fact that a witness is facing outstanding charges generally has no bearing on the witness' credibility and cross-examination on the fact of charges is generally not permitted. The exception, where the witness may have a motive to favour the prosecution because of the outstanding charges, requires an evidentiary foundation which is lacking here. No basis has been advanced in this case to bring it within the exception. While the situation is different with respect to the underlying facts, the trial judge has the authority to keep the cross-examination within reasonable limits, especially since the witness' denials cannot be contradicted by other evidence.
[66] Fifth, as the respondent points out, the great majority of this evidence got before the jury when Bow's testimony from the preliminary inquiry was read into the record as part of the case for the Crown.
[67] Finally, we cannot lose sight of the manner in which the trial judge dealt with Ms. Bow's evidence in his charge to the jury. He directed the jury not to convict in the absence of confirmation of her evidence, essentially making confirmation a condition precedent to a finding of guilt.
Ground #2: Instructions on Fear as a Basis for Memory Loss
[68] The second ground of appeal alleges error in the trial judge's charge to the jury about the reason underlying Olivia Bow's claimed memory loss concerning the circumstances of the offences charged. A brief reference in the impugned portion of the charge, counsel's objection and the evidentiary basis for the instruction will provide the background essential to an assessment of this ground of appeal.
The Charge to the Jury
[69] The trial judge explained to the jury that it was not open to them to convict the appellant of any offence "[i]n the absence of any extrinsic evidence tending to confirm the reliability of [Ms. Bow's] evidence that the accused Curt John robbed her of the Ford SUV and her purse and its contents while armed with what appeared to her to be a real gun".
[70] After reiterating the need for jurors to determine whether there was any "confirmatory evidence which rehabilitates Ms. Bow as a reliable witness", the trial judge suggested that the jurors ought begin by asking why Ms. Bow's memory had failed. He said:
Start first by asking yourselves why Ms. Bow purportedly does not remember or did not remember her dealings with the accused on January 28th, 2009. She obviously remembered them when she spoke to Constable Landry at the scene, and she remembered them during the videotaped evidence. Five months later, at the Preliminary Inquiry, Ms. Bow purported also to remember the events, even though she attempted to resile from her previous evidence that the accused had used force against her. Nonetheless, she was consistent that the accused had the pistol on his lap in the SUV – she had said that in her videotaped statement, she said that at the Preliminary Inquiry.
About one year later, Ms. Bow now claims that she has a total memory loss of the events of January 28th, 2009. Why is that so?
It is not disputed that it is open to you to find that Ms. Bow's claim of memory loss is feigned. It is also open to you to find that her claim of memory loss is due to fear; she's frightened. This is so particularly if you find as fact that the accused was in possession of a handgun on January 29th [sic] and showed it to Ms. Bow in the SUV.
The Objections to the Charge
[71] Defence counsel objected to the instruction:
[DEFENCE COUNSEL]: Just with respect to the statement from the bench with respect to fear, again my submission is that there's been no evidence with respect to fear on behalf of Ms. Bow, and that's simply referencing something that's not in evidence, m'lord.
[72] The trial judge did not re-charge the jury.
The Evidentiary Background
[73] The jury heard evidence, admitted under the principled exception to the hearsay rule, of what Ms. Bow told police during a video interview at the police station and what she testified to at the preliminary inquiry. In each case, she described the appellant pulling out a gun as they sat in the front seat of the SUV parked by the apartment building. At trial, she said she did not recall the details of the incident, except that the appellant took the SUV. She was not sure whether a gun had been involved.
The Arguments on Appeal
[74] The appellant submits there was no evidence, direct or circumstantial, that Ms. Bow's memory loss was due to fear. She claimed that the deficit was due to stress and the passage of time. Nobody asked her at trial whether she had been threatened, thus she gave no evidence on the issue. And no such inference could be drawn from the nature of her relationship with the appellant, a casual sexual alliance apparently satisfactory to both parties.
[75] The appellant says that the manner in which the evidence or issue was left to the jury invited use of tautological reasoning. The purpose of the inquiry into memory loss was an assessment of the reliability of Ms. Bow's evidence, including her earlier claim that she had been threatened when the appellant pulled out a gun. But the judge invited the jury to find that her testimonial volte face was caused by the threat she said occurred in the SUV, thereby presuming the veracity of her evidence on this point.
[76] The respondent takes issue with both aspects of the appellant's submissions. As a matter of common sense and logic, the jury can find that Ms. Bow's claimed memory loss was feigned. By a similar path of reasoning, the jury could conclude that the memory loss was attributable to self-interest and fear. Further, the instruction did not invite jurors to engage in circular reasoning.
[77] Ultimately, the respondent says, the appellant was not convicted of any firearm related charges. Therefore, even if the trial judge erred in his instruction, it is clear that the jury did not find beyond a reasonable doubt that the appellant had a gun. The appellant suffered no prejudice.
The Governing Principles
[78] To inform a decision about this ground of appeal, it is helpful to recall two basic principles of the law of evidence. The first concerns the distinction between inference and speculation; the second, the relevance of evidence of fear and threats.
[79] An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. An inference which does not follow logically and reasonably from established facts is forbidden, since it amounts to conjecture and speculation: R. v. Morrissey, 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 209.
[80] Evidence of fear or threats may be relevant to several different issues in a criminal trial, among them, the state of mind of a person who testifies in those proceedings. Threats to a witness, or fear on the part of a witness about consequences following the giving of evidence or testifying in a certain manner, may explain why a witness has strayed from prior versions of the same events: R. v. Speid, 20 C.C.C. (3d) 534 (Ont. C.A.), at pp. 546-547; R. v. Cuadra, 125 C.C.C. (3d) 289 (B.C.C.A), at para. 29; R. v. Lawrence, 52 C.C.C. (3d) 452 (Ont. C.A.), at p. 456.
The Principles Applied
[81] As I will briefly explain, I agree with the appellant that the trial judge's instruction which left it open to the jury to conclude that Ms. Bow's claimed memory loss was feigned due to fear was a direction that invited jurors to speculate in the absence of an evidentiary foundation. But I do not consider this error of sufficient gravity, despite the centrality of the evidence of Ms. Bow to the proof of guilt, to warrant our interference.
[82] No one could gainsay that Ms. Bow's claimed amnesia about the details of the car-jacking was anything other than feigned. She said it was due to the passage of time and stress. The trial judge left fear as a basis to rebut the reasons advanced by Ms. Bow for her memory loss. He did not assign fear any wider influence, as for example, as confirmatory of the truth of her original statements. He limited this fear to production of the handgun in the SUV. But it was plain that the jury rejected that part of Ms. Bow's testimony. They convicted of robbery only, not robbery with a firearm, and acquitted of using an imitation firearm during the commission of an indictable offence. In these circumstances, it seems inconceivable that the impugned reference to fear linked to the presence of the firearm could have exerted any influence on the jury's verdict.
Ground #3: Jury Instructions on the Absence of Motive to Fabricate
[83] This ground of appeal also challenges a portion of the trial judge's final instructions relating to the testimony of Olivia Bow. Brief reference to the addresses of counsel, the evidence adduced at trial and the judge's final instructions will provide a suitable backdrop for the discussion that follows.
The Closing Addresses of Counsel
[84] Understandably, counsel spent much of their closing addresses on the credibility of Ms. Bow and the reliability of her evidence, including her prior statements. Among the subjects each canvassed were Ms. Bow's claimed loss of memory and why the jury should accept or reject her prior statements of the alleged events admitted under the principled exception to the hearsay rule.
[85] The trial Crown submitted that Ms. Bow had no motive to lie about what happened and who was responsible. Defence counsel suggested that people say and do things for a reason, but that there was no onus on the appellant to prove that Olivia Bow had a motive to lie.
The Evidence
[86] The jury heard no evidence of any animus or antipathy between the appellant and Olivia Bow. Ms. Bow was annoyed at the appellant for having brought his cousin along with him. She had expected the appellant, with whom she shared a mutually satisfactory casual sexual relationship, to be alone when she picked him up at the Jane Finch Mall.
The Charge to the Jury
[87] In response to the Crown's closing address, the defence requested an instruction that there was no onus on the defence to prove motive. This request was not incorporated into the jury charge. Instead, in instructing the jury about evidence that tended to confirm the reliability of Olivia Bow's out-of-court statements about how the offences charged occurred, the trial judge said:
Finally, consider the motivation for Ms. Bow to have made a false accusation as to the identity of the person who had stolen the SUV.
She testified she knew the accused only as Germane [sic], that they had been intimate on a number of occasions, and that she had never had any problems with him except for the unwanted presence of his cousin.
The absence of any motive to have made a false accusation against the accused may tend to confirm the reliability of her accusations against him.
[88] Defence counsel repeated his concern about the issue of motive after the charge was delivered to the jury. His submissions were focused on the fact that the defence had no burden to prove a lack of motive. No recharge was given.
The Arguments on Appeal
[89] The appellant says that the trial judge made two errors in this passage in his final instructions.
[90] First, the absence of evidence of a motive to fabricate is not the same thing as the absence of a motive to fabricate. Here, at best, there was no evidence of a motive to fabricate. Not only is this not the same thing as the absence of a motive to fabricate, but also it does not follow that the witness, in this case Ms. Bow, must be telling the truth. The trial judge erred when he instructed the jury that the absence of a motive to fabricate may tend to confirm the reliability of Ms. Bow's evidence.
[91] Second, according to the appellant, there is evidence that Olivia Bow had a motive to fabricate her initial accounts of her encounter with the appellant: she was upset at him because he was not alone when he met her at the mall. And so it follows that any instruction about the absence of a motive to fabricate, or absence of evidence of a motive to fabricate, was contrary to the evidence adduced at trial.
[92] The respondent rebuffs the suggestion that the trial judge conflated the absence of evidence of a motive to fabricate with the absence of a motive to fabricate. But more importantly, the respondent says, there is evidence on the basis of which the jury could find that Olivia Bow had no motive to fabricate an account of events that inculpated the appellant. The evidence negated any suggestion of animus. The couple had a mutually satisfactory casual sexual relationship. The trajectory of proceedings, from the initial inculpatory statements, to the tepid version of accounts at the preliminary and the steadfast claim of amnesia at trial amply supported an unswerving reluctance to implicate the appellant.
The Governing Principles
[93] The law maintains a distinction between absence of evidence of a motive to fabricate and absence of a motive to fabricate. The former is not the equivalent of the latter, nor is the latter the same as the former: R. v. L. (L.), 2009 ONCA 413, 244 C.C.C. (3d) 149, at para. 44. Said in another way, it does not logically follow that, because a witness has no apparent reason to lie, the witness must be telling the truth: R. v. B. (R.W.), 1993, 24 B.C.A.C. 1, at para. 28. The fact that a witness has no apparent motive to fabricate does not mean that the witness has no motive to fabricate: L. (L.), at para. 44.
[94] Second, in the context of a witness' motive to fabricate, evidence of a good relationship between the witness and the prospective accused does no more than reinforce the absence of evidence of a proven motive, not prove the absence of motive: L. (L.), at para. 45.
[95] In instructing juries on motive to fabricate, trial judges must avoid making any suggestion that:
i. an accused has an onus to demonstrate that a complainant or witness has a motive to fabricate evidence;
ii. the absence of a demonstrated motive to fabricate necessarily means that there was no motive to fabricate; or
iii. that the absence of a motive to fabricate conclusively establishes that the complainant or witness is telling the truth.
See, R. v. Batte, 145 C.C.C. (3d) 449 (Ont. C.A.), at para. 121; L. (L.), at para. 48.
The Principles Applied
[96] I would reject this ground of appeal despite its introduction of a needless complication into a case that was otherwise quite straightforward.
[97] The distinction between absence of evidence of a motive to fabricate and absence of a motive to fabricate is not easily digestible. Here, it was left, without objection, as potentially confirmatory of the out-of-court statements of a witness whose testimony was the subject of a very strong and not undeserved Vetrovec-like warning. It is at best unclear how the absence of a motive on the part of a witness to fabricate can be confirmatory of the evidence of a witness whose evidence is subject to a warning of the nature given here. The absence of a motive to fabricate lacks the essential quality of independence.
[98] In the end, however, I am satisfied that the inclusion of the impugned instruction caused no harm to the appellant. It did not shift the onus to the appellant to demonstrate a motive to fabricate. Nor did it expressly or impliedly advise the jury that the absence of a demonstrated motive to fabricate necessarily meant that there was no such motive. The jury was not instructed that the absence of a motive to fabricate conclusively established that the witness was telling the truth.
Ground #4: Instructions on Elements of the Offence
[99] This ground of appeal challenges the correctness of the trial judge's charge on an essential element of the principal offence charged – robbery. A brief reference to the instruction and the positions advanced by the parties at trial will provide sufficient background for an assessment of its merits.
The Instructions of the Trial Judge
[100] In instructing the jury on the essential elements of robbery, the trial judge posed several questions for the jurors to consider during their deliberations. Each question reflected an essential element of robbery. After explaining that the first issue the jurors had to decide was whether someone had taken the SUV from Olivia Bow, the trial judge described the second issue as:
…was that someone who took the SUV the accused Curt John?
then continued:
This issue again does not appear to be in dispute, however it may be, but does not appear to be in dispute given the accused's appearance on the videotape, given Ms. Bow's immediate complaint to the police that Germane (ph) had taken the SUV, given her later selection of the accused as the taker of the SUV from the photo lineup, and given the accused's fingerprint on the side door of the SUV.
So the second question is, if you were satisfied that the SUV was taken from Olivia Bow on January 28th, 2009, was the person who took the SUV the accused Curt John. That's the second question.
The Defence Position at Trial
[101] At trial, counsel for the appellant acknowledged that the appellant and Ms. Bow met at the Jane Finch Mall when she picked him and his cousin up in the SUV. Counsel also acknowledged that the appellant's fingerprint was on the doorframe on the driver's side of the SUV. But the appellant took issue with Olivia Bow's account about how he got the vehicle, in particular, that he used violence and produced a gun.
The Arguments on Appeal
[102] The appellant does not quarrel with the manner in which the trial judge framed the second question for the jurors to consider. The core of his complaint is the trial judge's suggestion that the issue "does not appear to be in dispute".
[103] The appellant says that the impugned portion of the instruction was unfair. The issue was not conceded at trial, rather was the subject of dispute. The brief reference to the evidence was unfair. Olivia Bow's credibility was very much in issue and the fingerprint evidence of limited probative value. That Ms. Bow picked the appellant's photograph out of a series of pictures added nothing to her account about how the SUV was taken from her. These frailties should have been highlighted to the jury in order to properly balance the charge.
[104] The appellant adds that, to the extent this part of the trial judge's instructions could be characterized as an expression of the judge's opinion on an issue of fact, it goes too far. Such a comment is much stronger than the evidence warranted and was unfairly prejudicial to the appellant.
[105] The respondent rejects any suggestion of error, much less prejudicial error, in the trial judge's instructions.
[106] The respondent points out that the trial judge did not say that the defence had conceded that this essential element had been proven. The trial judge simply narrowed the issues the jury was required to decide, consistent with the evidence adduced at trial. Considered as a judicial comment on an issue of fact, what the trial judge said was fully warranted by the evidence, and did not extend beyond permissible limits.
[107] The respondent reminds us of the undoubted right of a trial judge to comment on the evidence adduced at trial and the resolution of factual issues. The comments here were measured and moderate, made about a very narrow issue that was largely uncontroversial. The SUV was missing. So was the appellant, a person whose fingerprint was found on the driver's door. Left undisturbed was the critical issue of the means by which the appellant obtained the vehicle and whether his conduct amounted to robbery. The trial judge also made it clear that the jury was not bound by any views he might express about the evidence or factual issues.
The Governing Principles
[108] The parties share common ground that a trial judge is entitled to express opinions on issues of fact, as strongly as the circumstances permit, provided that what is said amounts to advice, not direction, and the judge makes it clear that the jury is not bound by the judge's views on these issues: R. v. Lawes, 206 C.C.C. (3d) 15 (Ont. C.A.), at paras. 20-21, 34, leave to appeal refused, 228 O.A.C. 399 (note); R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, at para. 27.
[109] A significant limitation is that a trial judge's opinion can only be expressed as strongly as the circumstances permit. A trial judge is entitled to express his or her own view of the facts or of the credibility of witnesses and to express that opinion in strong terms. But sometimes, even where a judge has told the jury that it is not bound by the judge's views on the evidence, a judge may go too far by expressing an opinion that is far stronger than the facts warrant or by expressing the opinion so strongly that the jury is likely to be overawed by it: Lawes, at para. 22; R. v. Garofoli, 41 C.C.C. (3d) 97 (Ont. C.A.), at p. 133, reversed on other grounds, [1990] 2 S.C.R. 1421.
[110] The judge must not use such language as leads the jury to think that they must find the facts in the way the judge has indicated. And the charge must not deprive the accused of a fair presentation of the defence case to the jury: Garofoli, at p. 133. In each case, it is a question of degree and of fairness: Lawes, at para. 23.
[111] The other firm limitation on the trial judge's ability to comment is that a trial judge is not entitled to assess the evidence and make a determination that the Crown has proven one or more of the essential elements of an offence and to direct the jury accordingly. Trial judges may offer opinions on factual issues, but not give directions on how issues put to the jury are to be decided: Gunning, at para. 31.
The Principles Applied
[112] As I will explain, I would reject this ground of appeal.
[113] In his instructions to the jury on the count charging robbery, the trial judge summarized the essential elements of the offence in a series of questions. On each issue, he made brief reference to the evidence of Ms. Bow and left the issue to the jurors to decide. For all practical purposes, the evidence of Ms. Bow was the only evidence on the issue. The appellant did not testify and no evidence was adduced on his behalf.
[114] To begin, the trial judge did not tell the jury that the second issue was conceded, much less direct the jury to find this essential element established. Had he done so, the trial judge would not only have been factually inaccurate, since this was not the position of the defence, but also legally wrong, because he would have determined himself an issue that was not his, but the jury's, to decide. The words used – "does not appear to be in dispute, however it may be" – considered in their entirety and context, cannot fairly be said to amount to a direction that this essential element had been proven with the necessary degree of certainty. Importantly, the jury charge also included reference to the defence position:
The accused conceded that he met Ms. Bow at the Jane/Finch mall. That is not in issue. What is in issue is what happened thereafter.
It would have been clear to the jury that this essential element had not been conceded.
[115] Second, the trial judge expressly instructed the jury that it was not bound to follow and free to ignore any views he expressed on factual issues.
[116] Third, trial counsel did not object to this aspect of the trial judge's instructions. While not fatal, the failure to object affords some indication that trial counsel did not consider the instruction prejudicial to the defence advanced at trial.
[117] Fourth, on all the evidence adduced at trial, in particular, Ms. Bow's out-of-court statements, the conclusion that the appellant took the SUV from Ms. Bow was not in serious dispute. The vehicle was gone when police arrived. So was the appellant. Ms. Bow identified him as the thief. The vehicle was found weeks later with the appellant's fingerprint on the doorframe on the driver's door. It was a vehicle he had not previously occupied. The strength of the trial judge's opinion was therefore commensurate with the circumstances.
[118] Finally, the real focus of the defence at trial was on the legal character, not the fact of the taking. And on that issue, the impugned instruction had nothing to say.
Ground #5: The Defence Closing
[119] The final ground of appeal against conviction claims the trial judge erred in giving a correcting instruction to the jury about a portion of defence counsel's closing address to the jury. Brief reference to the closing address and the corrective instruction are all that is required as context for this allegation of error.
The Closing Address
[120] In his closing address, trial counsel for the appellant suggested an analogy for jurors to consider in assessing the evidence of Ms. Bow:
If I can use an analogy, that you're at a restaurant, and there's a fly in your soup – you order a bowl, there's a fly in it – do you simply remove the fly and eat the rest of the soup? Absolutely not. You would never do this. The soup is tainted. Simply plucking out the fly will not alleviate the concern. You're going to throw out the entire bowl. You can't trust the soup.
In this case, again, the flies are Ms. Bow's lies, the inconsistencies, severe inconsistencies, and lying when she affirms to tell the truth. In my submission, there's an infestation of flies in this case.
Simply, ladies and gentlemen, Ms. Bow is not credible, is not reliable. She's not consistent in her version of events. Her version of events does not make sense. As a result, I ask you to find Mr. John, and I submit you must find Mr. John, not guilty.
The Charge to the Jury
[121] In discussing the evidence of Olivia Bow, the trial judge made specific reference to the analogy offered by defence counsel in his closing address:
It has been suggested to you that a criminal trial may be viewed as a bowl of soup ordered in a restaurant, and that if there is an apparent flaw in the soup, the soup must be rejected, as must be the Crown's case.
That is not so. The analogy is false. A criminal trial is not like a bowl of soup ordered in a restaurant.
Proof, in a criminal case, must be assessed in its entirety, and one flaw or even multiple flaws do not necessarily destroy the strength of the Crown's case. Instead, you must determine whether the flaws are offset by reliable confirmatory evidence.
[122] Trial counsel did not object to this portion of the charge.
The Arguments on Appeal
[123] The appellant says that the trial judge's corrective instruction unfairly prejudiced him. Trial counsel was simply making a legitimate argument about the many flaws in the case for the Crown. Olivia Bow, at least her out-of-court statements, were the case for the Crown. The many flaws in her evidence contaminated the case and tainted it to such an extent that it fell short of the standard of proof required.
[124] The respondent contends that the trial judge was properly concerned that defence counsel's colourful analogy might unintentionally mislead the jury about the effect of a single flaw in Ms. Bow's evidence on the standard of proof required of the Crown. On its face, the analogy contradicted the basic principle of fact-finding that, in determining whether the case had been proven beyond a reasonable doubt, the trier of fact could accept some, none or all of the evidence of a witness. Further, the correction involved the exercise of discretion in the management of the trial process, a determination that is entitled to significant deference on appeal.
The Governing Principles
[125] Two brief points warrant mention.
[126] The first has to do with interrupting the closing address of counsel and including remedial directions in final instructions.
[127] As a general rule, trial judges are disinclined to interrupt the closing address of counsel. Despite this general disinclination, trial judges are entitled to intervene when counsel strays beyond the boundaries of permissible subject-matter or method: Snow, at para. 26.
[128] In some cases, a trial judge may decide that the better course is not to interrupt the address, but to give correcting or cleansing instructions in advance or as part of the charge to the jury. Whether, when, how and to what extent to intervene lies within the discretion of the trial judge: R. v. Trakas, 2008 ONCA 410, 233 C.C.C. (3d) 172, at paras. 26-28, 38.
[129] Second, the authority available to the trial judge is an incident of the trial management power, or writ large, the inherent authority to control the trial process as it unfolds to ensure fairness for all concerned.
The Principles Applied
[130] This ground of appeal fails.
[131] Nothing forecloses resourceful counsel from arguing by analogy in a closing address. However, the wise counsel clears the analogy with the trial judge prior to closing to ensure that it is not apt to mislead. Perfect analogies are rare.
[132] In this case, I would not interfere with the trial judge's decision to give a corrective or cleansing instruction to ensure that jurors were not confused about the impact of a single inconsistency or falsehood in Ms. Bow's evidence. What was said by counsel in closing was inconsistent with jury instructions on the assessment of evidence; the role of inconsistencies in the assessment of a witness' credibility and the reliability of his or her evidence; and the instruction that jurors can believe some, none or all of what a witness says. This was a correction of an inapt analogy, not of counsel who invoked it.
[133] In the result, I would dismiss the appeal from conviction.
The Appeal From Sentence
[134] The appellant also seeks leave to appeal sentence. In oral submissions, he abandoned one of his two grounds of appeal. What remains is a claim that the trial judge did not award the appellant proper credit for time spent in pre-disposition custody.
The Positions at Trial
[135] The trial Crown emphasized the appellant's record, which included two prior convictions for robbery; the fact that the appellant was on probation for a prior conviction of robbery when he committed the offence of which he was convicted; the use of personal violence against Ms. Bow; elements of planning that went into committing the offence; and the principles of denunciation and deterrence. The Crown sought a sentence of two years less one day in addition to the time spent in pre-sentence custody and the usual ancillary orders. The Crown did not take a position on the calculation of credit for pre-sentence custody, instead deferred to the trial judge's determination.
[136] Defence counsel sought a sentence of 9-12 months, with credit for pre-disposition custody calculated at the rate of two days credit for each day of custody for the entire period from arrest to sentence.
Pre-disposition Custody
[137] The appellant was arrested on February 1, 2009 and sentenced on June 29, 2010, a period of 17 months. The Truth in Sentencing Act, S.C. 2009, c. 29 ("TSA") came into force on February 22, 2010, and applied only to those persons charged after it came into effect without regard to when the offence occurred.
The Sentence Imposed
[138] The trial judge considered a fit sentence for the offence was a term of imprisonment of three years. He imposed a net sentence of six months after awarding the appellant a credit of 30 months for time spent in pre-disposition custody. The judge limited the credit to one day for each day of custody from February 1, 2010 until sentence to reflect his "policy" in connection with the TSA.
The Arguments on Appeal
[139] The appellant says the trial judge erred in applying the TSA to limit credit for time spent in pre-disposition custody to one day credit for each day of custody between February 1, 2010 (under the trial judge's mistaken belief that the TSA came into force on that day) and June 29, 2010. The TSA only applied to persons charged after February 22, 2010 (the date the Act came into force), thus had no application to this case. Credit for pre-disposition custody should have been awarded at the rate of two days credit for each day of pre-disposition custody for the entire period from arrest until sentence.
[140] The respondent acknowledges that the trial judge did not award the appellant appropriate credit for time spent in pre-disposition custody. The TSA and its limits on credit for pre-disposition custody were not in play in this case. The appropriate rate of exchange for pre-disposition custody was two days credit for each day of pre-disposition custody. The net effect of the error is a reduction of the sentence imposed by four months.
The Governing Principles
[141] One basic principle informs our decision on this issue, namely the application of the TSA.
[142] The TSA, with its cap on credit for pre-disposition custody, came into force on February 22, 2010. By its terms, the TSA applies only to an accused charged after the legislation came into force. It is of no moment that the offence charged occurred prior to February 22, 2010: R. v. MacFarlane, 2012 ONCA 82, at para. 7; R. v. Clarke, 2014 SCC 28, [2014] 1 S.C.R. 612, at paras. 4, 11.
The Principles Applied
[143] As I will briefly explain, I would give effect to the argument that the trial judge erred in his calculation of credit for pre-disposition custody.
[144] It was common ground at trial that, subject to the potential influence of the TSA for a period of four months from the time the provision became law until the date of sentence, the appellant was entitled to credit for two days for each day spent in pre-disposition custody.
[145] Early in the sentencing proceedings, the trial judge announced that it was his "policy" to award only 1:1 credit for time spent in pre-disposition custody after the TSA became law. Unfortunately, the trial judge's "policy" was at odds with the provisions of the TSA. Judicial "policy" cannot trump the provisions of the statute. By its terms, the TSA had no application: the appellant was charged before, not after the TSA came into force, thus the capping provisions the Act enacted were not in play at the time of sentencing. It follows, that the trial judge was wrong in his award of credit for pre-disposition custody.
[146] The appellant was entitled to a credit of 34 months for the 17 months he spent in pre-disposition custody, not 30 months as awarded by the trial judge. Applied to the net sentence imposed by the trial judge – six months – the remainder of the sentence is two months.
Conclusion
[147] For these reasons, I would dismiss the appeal from conviction, grant leave to appeal sentence, allow the appeal from sentence and reduce the sentence to a term of two months.
Released: July 26, 2017
"David Watt J.A."
"I agree. J.C. MacPherson J.A."
"I agree. R.A. Blair J.A."
