WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences.
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application.
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.
486.6 Offence.
(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.
Court Information
Court File No.: St. Catharines - 2111-998-10-F2502-00
Date: 2012-05-02
Ontario Court of Justice (Central West Region)
Parties
Between:
Her Majesty the Queen Respondent
— And —
Rodney Thomas Applicant
Before the Court
Before: Justice D.A. Harris
Heard on: April 2, 3 and 5, 2012
Ruling released: May 2, 2012
Counsel
G. Leach — for Crown
S. Nichols — for Rodney Thomas
Ruling
HARRIS J.:
The Charges
[1] Rodney Thomas has been charged with one count of sexual assault and one count of sexual interference, both involving 12-year-old EPW.
[2] Crown counsel has objected to the introduction of certain evidence on the basis that this evidence offends the collateral fact rule.
The Allegations
[3] The allegations against Mr. Thomas are that on a number of occasions, he touched EPW on or near her vagina and her breasts.
[4] EPW has given evidence in this regard.
[5] Her six-year-old sister, KW, also gave evidence stating that she observed certain of these incidents.
[6] Their mother LW also gave evidence. She was not a witness to the alleged offences. LW's evidence was as to the circumstances leading up to the alleged offences and with regard to EPW reporting them to her and with regard to LW notifying the police.
The Defence Theory
[7] The theory of the defence is that LW had been babysitting Mr. Thomas' autistic son and had behaved in an inappropriate fashion towards the son, grabbing him and shaking him violently while screaming in his face. In order to deflect responsibility away from herself, LW then called Niagara Regional Police and falsely accused Mr. Thomas of the offences which are now before me. The further position of the defence is that LW coached her daughters to back up the false allegations that LW had made.
Proposed Evidence
[8] Counsel for Mr. Thomas now proposes to call certain evidence to impeach the credibility of LW and to support the above theory. This evidence falls into three categories.
[9] The first category of evidence would come from Mr. Thomas and his wife, Mrs. Thomas. This evidence would pertain to allegations made by LW with respect to Mr. Thomas allegedly breaching the terms of the recognizance signed by him in order to secure his release with respect to the charges before me. LW was questioned about this and she testified that her allegations were true, that she had seen Mr. Thomas in his vehicle with his children contrary to the terms of his recognizance.
[10] The second category of evidence would also come from Mrs. Thomas. This evidence would pertain to alleged acts by LW which prompted Mrs. Thomas to apply for a peace bond pursuant to section 810 of the Criminal Code. These acts are all alleged to have occurred after Mr. Thomas was charged. LW was also questioned about this. She denied the allegations.
[11] The final category of evidence would come from one Tanya Evans and would pertain to the incident referred to above where LW allegedly behaved inappropriately with the Thomases' son. It is proposed that Ms. Evans would testify about what happened between LW and the boy and about Ms. Evans reporting this incident to Mr. and Mrs. Thomas. Mrs. Thomas would then give evidence as to her attempts to communicate with LW about this event. LW gave evidence with respect to this incident. I will say more about that evidence later.
The Collateral Fact Rule
[12] Counsel provided me with a number of cases summarizing the law with respect to the collateral fact rule. I thank them for this. I also thank J.A. Thorburn J. for the excellent summary of that law set out in paras. 10 through 20 of R. v. M.C., 2012 ONSC 1131.
[13] The collateral fact rule prohibits a party from calling extrinsic evidence to contradict the other side's witness on a collateral issue.
[14] A matter is collateral where it is "not determinative of an issue arising in the pleadings or indictment or not relevant to matters which must be proved for the determination of the case."
[15] This rule is not based on lack of relevance or probative value. Evidence adduced to contradict a witness has some probative value as it may establish that the witness is not telling the truth or is not accurate.
[16] The rule is based on policy considerations of trial efficiency. Allowing proof on collateral matters may confuse the trier of fact by engaging in distracting side issues, may take undue time to develop, and may unfairly surprise a witness who will not be prepared to answer the collateral evidence.
Exceptions to the Collateral Fact Rule
[17] The collateral fact rule is subject to certain exceptions including the following:
(i) bias or partiality in favour of the opposing party;
(ii) a witness has previously been convicted of a criminal offence(s);
(iii) a previously inconsistent statement was made by a witness where the foundation has been laid;
(iv) medical evidence to prove that, by reason of a physical or mental condition, the witness is incapable of telling or unlikely to tell the truth;
(v) an adverse witness has a general reputation for untruthfulness and the witness testifying to such reputation would not believe the impugned witness under oath.
Two Approaches to Determining Collateral Evidence
[18] There are two general approaches to determine whether the evidence is collateral. They can be summarized as follows.
[19] The Wigmore Test: Could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction? This test includes facts relevant to a material issue and facts that go to discredit a witness' credibility.
[20] The Phipson Test: Proof may only be given on matters relevant directly to the substantive issues in the case. Proof of contradiction going to credibility is prohibited unless it falls within certain exceptions.
Discretionary Exception
[21] However, in R. v. Prebtani, 2008 ONCA 735, Rosenberg J.A. on behalf of the Court held that an exception to the collateral fact rule can be made without fitting the evidence into one of the categories listed above.
Balancing Probative Value Against Prejudicial Effect
[22] Several appellate decisions have made it clear that in exercising my discretion, I must weigh the probative value against the prejudicial effect of the proposed line of inquiry. See: R. v. Riley; R. v. W. (B.A.); R. v. A.R.B.; R. v. Hoohing, 2007 ONCA 577.
[23] Thorburn J. restates this in para. 20 of R. v. M.C., supra:
The question to be asked is: Is the evidence offered of sufficient value and importance to the issues before the court that we ought to hear it, bearing in mind the necessary court time required, potential confusion of issues and any unfairness and prejudice to the witness?
Application of the Test
[24] So how do I apply this test here?
[25] I note that certain facts are not in dispute in this case. Everyone agrees that the incident between LW and the Thomases' son occurred shortly before the allegations of sexual assault. Everyone agrees that prior to the occurrence of these two events, LW got along quite well with both Mr. and Mrs. Thomas. Finally, everyone agrees that since the occurrence of these two events, that relationship has been sundered and LW has felt hostile towards Mr. Thomas.
[26] Counsel for Mr. Thomas takes the position that LW's hostility is supportive of the defence theory that LW called Niagara Regional Police and falsely accused Mr. Thomas of sexual assault in order to deflect responsibility away from herself. The corollary to the position of the defence is that LW coached her daughters to back up the false allegations that LW had made.
[27] A major difficulty that I have with respect to the first two categories of evidence which counsel is proposing to lead is that one could also quite properly infer that LW is hostile toward Mr. Thomas because she believes that he did sexually assault her daughter.
[28] Her belief of course is not proof of anything in this case. LW does not claim to have seen any inappropriate touching. She claims to be relying on information that was given to her by her daughters. Even if I am satisfied that they did give this information to their mother, that too is not proof of anything here.
[29] In my view, an attack on LW's credibility is not of the same significance as an attack on the credibility of an actual witness to the alleged offences.
[30] The second difficulty I have with this evidence is that LW was not even asked if she told her daughters what to say or coached them in any way. She was asked if she called Niagara Regional Police and falsely accused Mr. Thomas of sexual assault in order to deflect responsibility away from herself. She denied that. She was not however asked if she had enlisted her daughters into a scheme to make false allegations against Mr. Thomas.
[31] Neither was EPW asked that question.
Evidence of EPW
[32] During her evidence in-chief, EPW stated that "My sister had already told my mom what had happened so my mom asked me what happened and I told her exactly what happened."
[33] Later EPW stated that nobody had coached her or put words into her head. Neither her mother nor anybody else had given her information or details that she did not know herself or did not remember.
[34] At the end of her cross-examination EPW was asked the following questions and gave the following answers:
Q. Okay. Now I'm gonna suggest to you, Miss [W.], that the, the story that you've told us today about, about Rod Thomas touching you inappropriately is not true. Do you agree with that?
A. No.
Q. Would you agree with me that this is a, a story that you made up?
A. No.
Q. And I'm gonna suggest to you, Miss [W.], that none of this really happened at all, did it?
A. Yes it did.
Q. Okay, those are my questions. Thank you very much.
[35] It was suggested to her that she, not her mother, had made everything up.
Evidence of KW
[36] Things are not so clear-cut in the evidence of six-year-old KW.
[37] KW testified in-chief that she told her mother what she had seen because her mother needed to know.
[38] During cross-examination, she was asked the following questions and gave the following answers:
Q. Okay. And it must be, it, it must have been a bit hard for you to remember what had happened all that time ago.
A. Yes.
Q. You'd agree with that?
A. Yes.
Q. Okay, and did the video help you remember?
A. Yes.
Q. Okay, and did talking to your mom and sister help you remember?
A. Yes.
Q. Okay. Because your mom helped you try to remember what happened back then, right?
A. Yes.
Q. And reminded you what you needed to tell the court about what you saw?
A. Yes.
Q. And your mom did that. She reminded you what you needed to say, right?
A. Yes.
[39] But later she answered clearly that she was recounting the events that she remembered seeing.
[40] The final question and answer from her cross-examination were as follows:
Q. … Now [KW], isn't it true that, that the story about Rod touching your sister wasn't something that you really saw but it was a story that you were told, right?
A. Yes.
[41] Crown counsel asked the following questions and received the following answers during re-examination:
Q. [KW], you just told Ms. Nichol [sic], Stacey, that the story about what you told the judge about Rod touching [EPW], was that true or make-believe?
A. True.
Q. And but you told Stacey, Ms. Nichols, that it was make-believe.
A. Oh, I forgot, it's not.
Q. Well, who told you that story?
A. Oh, I forgot. It was actually true.
Q. Okay. Well, let's talk about that. Did anybody tell you about this and you didn't really see it?
A. I did.
Q. Okay, and Ms. Nichol [sic], Stacey, this lady asked you if your mom helped you remember and you said yes.
A. Yes.
Q. Okay. What did your mom do to help you remember?
A. She just told me what to do.
Q. Told – what did she say?
A. She said always to tell the truth.
Q. Okay, and you said [EPW] told you, helped you to remember. What did your sister [EPW] do to help you remember?
A. She didn't. Only my mom.
Q. Okay, and did your mom tell you what to say?
A. Mmm, I don't remember.
[42] So, at one point KW said that her mother helped her remember what had happened and told her what to do. However, taken in context, it appears KW was referring to something that happened shortly before KW was to testify at trial. KW was never specifically asked if her mother had helped her remember things before KW first spoke to the police.
[43] Further, during re-examination KW elaborated that her mother had told her to always tell the truth. She also reiterated that the events described by her were true.
Analysis and Conclusion
[44] After considering all of the above, I find that the proposed evidence will have limited probative value.
[45] Against this, I have to balance the fact that to allow the leading of the proposed evidence would, to paraphrase the language of the Ontario Court of Appeal in Riley, supra, only introduce a collateral issue of credibility which would be as difficult to resolve as that which is already before me.
[46] Applying the test set out in M.C., supra, I find that the evidence contained in the first two categories proposed by counsel for Mr. Thomas is not of "sufficient value and importance to the issues before the court that we ought to hear it, bearing in mind the necessary court time required, potential confusion of issues and any unfairness and prejudice to the witness."
[47] Counsel for Mr. Thomas will not be permitted to lead evidence with respect to allegations made by LW with respect to Mr. Thomas allegedly breaching the terms of his recognizance or about alleged acts by LW which prompted Mrs. Thomas to apply for a peace bond.
[48] I would have reached the same conclusion with respect to the third category of evidence except that during his examination in-chief Crown counsel questioned LW about the incident with the Thomases' son. I suspect that he may simply have been attempting to deal first with something that he anticipated would be raised in cross-examination anyway. However, I am of the view that the evidence ought not to have been led unless counsel believed that it was relevant to the case. I note as well that Crown counsel did not object when counsel for Mr. Thomas did in fact cross-examine LW on this event. That would suggest that he still believed that it was relevant.
[49] Counsel for Mr. Thomas will be permitted to call Tanya Evans to give evidence about what happened between LW and the Thomases' son and about Ms. Evans reporting this incident to Mr. or Mrs. Thomas. Counsel will also be permitted to call Mrs. Thomas to give evidence as to her attempts to communicate with LW about this event.
Released: May 2, 2012
Signed: "Justice D.A. Harris"
Justice D.A. Harris