WARNING

The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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

Ontario Court of Justice

Date: 2019-11-18

Court File No.: Brampton 3111 998 17 13175

Between:

Her Majesty the Queen

— and —

Brandon Carter-Teixeira

Before: Justice G.P. Renwick

Heard on: 15 November 2019

Reasons for Judgment released on: 18 November 2019

Counsel:

• C. Sibian — counsel for the Respondent Crown
• R. Posner — counsel for the Applicant Brandon Carter-Teixeira

Reasons for Judgment

Introduction

[1] In March I found the Defendant not guilty of one count of sexual assault and guilty of another count of sexual assault involving a "second complainant," Ms. M.A. (see R. v. Carter-Teixeira, [2019] O.J. No. 5360 (C.J.)).

[2] The sentencing was adjourned for various reasons, including that the Defendant terminated his trial counsel due to a break-down in the solicitor-client relationship.

[3] On 26 September 2019, an agent appeared on behalf of the Defendant's new trial counsel and advised that in light of information that appeared in the Victim Impact Statement ("VIS") of the complainant, dated 22 July 2019, which had been recently disclosed, the Defendant would be bringing several applications: an Application to re-open the trial in aid of an Application for a mistrial, and a third-party records Application. I summarily determined that the Application to re-open the trial would be heard before the third-party records Application and one day was set for each Application.

[4] I have now received written submissions, jurisprudential support, and oral argument on the Application to re-open. Left for another day (if it were needed) is the Application for the complainant's medical records and employer's insurance documentation.

[5] The Defendant seeks to re-open the pre-verdict stage of the trial to seek a mistrial, or alternatively, to argue a third-party records Application in aid of re-opening the trial to seek a mistrial. Counsel suggests that I would be caught by the apprehensions alluded to by Justice Trotter (as he then was) in R. v. Drysdale, 2011 ONSC 5451 at paras. 28-29 if I were to re-open the trial to permit the parties to re-litigate the examination of the complainant and the ultimate value of her evidence.

[6] The Respondent prosecutor submits that the fresh evidence is unhelpful because it would only open the door to permit irrelevant and inadmissible evidence which offends the collateral fact rule. Moreover, the Defendant's trial counsel should not be permitted to re-pave the tactical path laid by former counsel when nothing prevented an examination which may have uncovered the fresh evidence. Lastly, if the court is inclined to grant a re-opening, it is suggested that a mistrial is not warranted, and I am in the best position to revisit the evidence and determine the trial outcome.

[7] In these reasons, I will discuss the law that governs, the evidence that forms the basis for this Application, my decision to permit a re-opening of the adjudicative phase of the trial, and the appropriate remedy in all of the circumstances.

Governing Legal Principles

[8] Re-opening a case after a verdict is reached is an exceptional step which requires a higher standard than before conviction in order to protect the integrity of the trial process and the need for finality.

[9] The applicable principles were re-iterated by Justice Watt in R. v. Kippax, 2011 ONCA 766:

62 A trial judge is not functus officio in a trial without a jury until she or he has imposed sentence or otherwise finally disposed of the case: R. v. Lessard (1976), 30 C.C.C. (2d) 70, (Ont. C.A.), at p. 73. It follows that a trial judge who has made a finding of guilt on disputed facts has the authority to vacate the adjudication of guilt at any time before the imposition of sentence or other final disposition: Lessard, at p. 73. This authority, to vacate an adjudication of guilt, should be exercised only in exceptional circumstances and in the clearest of cases: Lessard, at p. 73.

63 The test for re-opening the defence case when the application is made after a finding of guilt is more rigorous than that which governs a similar application prior to an adjudication of guilt: R. v. Kowall (1996), 108 C.C.C. (3d) 481 (Ont. C.A.), at p. 493. The Palmer criteria provide helpful guidance to a trial judge faced with an application to re-open after a finding of guilt has been recorded. But a trial judge must also consider whether the application to re-open is, in essence, an attempt to reverse a tactical decision made at trial: Kowall, at pp. 493-494. See also, R. v. Arabia, 2008 ONCA 565, 235 C.C.C. (3d) 354 (Ont. C.A.), at para. 46.

64 A trial judge's decision about whether to permit re-opening of the defence case after an adjudication of guilt has been made involves an exercise of judicial discretion. …

[10] The test for the introduction of fresh evidence in appeals governs applications to re-open trials after a verdict has been reached:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, [1964] S.C.R. 484.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[11] These statements of the law permit a trial judge to retreat from a conviction where material evidence could lead to a different result. The question for the trial judge becomes whether the cogency of the suggestion that the proffered evidence may have an impact on the decision-making process casts doubt upon the resiliency of the verdict.

[12] This involves a consideration of the potential of the fresh evidence to affect the verdict, not its certainty:

The cogency requirement commands a qualitative assessment of the evidence proffered on the application to re-open. This qualitative assessment begins with an identification of the purpose or purposes for which the evidence is proposed for admission. This involves an assessment of the potential (but not the actual) value of the evidence, considered in the context of the evidence adduced at trial that underpins the finding the party seeks to impeach: Truscott (2007), at para. 100. In this way, it can be determined whether the evidence is sufficiently cogent to warrant its admission. The trial judge should carefully evaluate the proposed evidence and the credibility of its source: R. v. Snyder, 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 50. However, no effort should be expended to determine the ultimate reliability of the evidence or the ultimate credibility of the witness whose evidence is tendered: Snyder, at paras. 50-51.

[13] Naturally, this assessment also involves a determination of potential admissibility, relevance, materiality, and probative value.

The Fresh Evidence

[14] For the purposes of this Application to re-open the prosecutor did not oppose the admissibility of the fresh evidence. The evidence is as follows:

i. The VIS of M.A., dated 22 July 2019;

ii. The Report of Dr. J. Rootenberg, Forensic Psychiatrist, dated 30 October 2019; and

iii. Correspondence between Applicant's counsel and former counsel, M. Schwartzentruber, dated 30 October 2019.

[15] Reliance was also placed on exhibit 4 at trial: Massage Therapy Health History Form and the trial testimony of the complainant, M.A.

[16] It will be helpful to outline the contents of the fresh evidence before discussing the substance of the Application to re-open the trial and the appropriate remedy.

The Victim Impact Statement

[17] Unbeknownst to the parties, but revealed for the first time to them in the VIS, M.A. had experienced several medical conditions, treatments, and work-related issues prior to the sexual assault and subsequent to the Defendant's trial:

i. Six weeks prior to the sexual assault, M.A. had left work on a short-term disability leave for anxiety and depression; she was seeing a psychotherapist for these conditions; she was taking 300 mgs of Effexor, and had just started taking Trazodone (for sleep) and Lamotrigine (to regulate her mood);

ii. After the sexual assault, her anxiety and depression worsened and she was diagnosed with post-traumatic stress disorder; she began seeing a psychiatrist and a social worker specializing in trauma counselling, and she attended group therapy sessions; her medications increased and she began taking Zoloft (which later increased to 150 mgs), and at the time of her VIS she began taking Lyrica (150 mgs in June), which dosage had since been increased, in addition to Xanax or Lorazepam on days when she had panic attacks; and

iii. About four months after the short-term leave began (31 May 2017), the insurance company for M.A.'s employer began discussing a return to work plan with the complainant; M.A. advised "them" about the sexual assault and her inability to return to work;

iv. In September 2017, M.A. began a long-term disability leave, which remained in place until the VIS was completed; it is unknown whether the long-term leave began before or after the complainant reported the sexual assault to the police on 24 September 2017.

The Report of Dr. J. Rootenberg

[18] For the purposes of the Application, it is uncontested that Dr. Rootenberg is a forensic psychiatrist entitled to opine upon the complainant's apparent medical condition and the effects of her medications on her ability to perceive, process, interpret, and recall the events giving rise to the complaint of sexual assault.

[19] The psychiatrist found that the combination of medications that M.A. was reportedly taking at the time of the sexual assault, "may lead to an increased risk of falls, central nervous system depression, serotonin syndrome, and bleeding." The report specifically offered the following:

i. Depending on the acuity of the complainant's symptoms, it is possible that they could have impacted on her ability to accurately recall the encounter (for example, attention, concentration, and memory are cognitive functions that are known to be adversely affected in those individuals suffering from depression). Marked anxiety can also impact upon an individual's ability to accurately recall details of an event;

ii. It is difficult to know with any certainty whether her consumption of the prescribed medication, and the resultant side effect profile, account for her walking into a closet, as opposed to trauma caused by sexual assault, but it is possible that this could have occurred if she was confused and disoriented as a result of the combination of medications she was taking at the time;

iii. It is possible that all of these medications taken by the complainant affected her ability to accurately recall her encounter with Mr. Carter-Teixeria; and

iv. In my clinical opinion, it would be helpful to obtain the complainant's medical records, including any psychiatric assessment, consultation, and treatment records, in order to better understand the complainant's underlying condition(s), including onset, duration and acuity of symptoms, and assess her response to treatment, both to psychotherapy/counselling and to pharmacological treatment, and to assess whether any other factors are present that could potentially impact upon her physical status and mental condition, such as underlying medical conditions, substance use, and personality factors.

Correspondence of Counsel

[20] The prosecutor also took no issue with the introduction of email correspondence between current and former counsel, respecting what, if any, impact the knowledge of the complainant's underlying medical condition and medications would have had upon the trial strategy pursued by former counsel.

[21] To summarize, prior counsel had no reason to suspect that exhibit 4 on the trial (Massage Therapy Health History Form) was inaccurate because there was no known information with which to challenge the assertions that there were no underlying medical conditions or on-going treatments. Counsel suggests that if she had known about the complainant's condition, treatments, and issues with returning to work, she would have:

i. requested disclosure of the medication and dosages to determine whether the medications could have had an effect on her memory or ability to perceive the events underlying the alleged offences and therefore the reliability or credibility of her evidence;

ii. cross-examined Ms. A. on these inconsistencies [concerning the responses that there were no medical conditions or treatments at the time]; and

iii. pursued disclosure of the records of her communications with the insurance company for the purpose of trying to establish a motive to fabricate.

Discussion

[22] The parties agree on the law. They disagree on the application of it in this case.

[23] The Respondent takes the position that much of the fresh evidence lacks relevance, and/or it leads to areas which are collateral and could not be challenged if M.A. had been cross-examined about these issues. As well, the prosecutor takes the position that defence diligence (or the purported lack thereof) in this case arises from tactical decisions made by former trial counsel, which cannot be re-visited by seeking to re-open the trial. Respectfully, on both positions, I disagree.

[24] The credibility and reliability of trial witnesses are key issues to be decided by a trier of fact. Cross-examination is the primary tool of counsel to expose half-truths, contradictions, motives, and dishonesty. It could hardly be said that M.A.'s credibility and reliability were collateral issues in this trial. For this reason, the evidence concerning the complainant's medical issues is relevant and admissible.

[25] Cross-examination has been described as the engine that drives the truth in trials:

There can be no question of the importance of cross-examination. It is of essential importance in determining whether a witness is credible. Even with the most honest witness cross-examination can provide the means to explore the frailties of the testimony. For example, it can demonstrate a witness's weakness of sight or hearing. It can establish that the existing weather conditions may have limited the ability of a witness to observe, or that medication taken by the witness would have distorted vision or hearing. Its importance cannot be denied. It is the ultimate means of demonstrating truth and of testing veracity. Cross-examination must be permitted so that an accused can make full answer and defence. The opportunity to cross-examine witnesses is fundamental to providing a fair trial to an accused. This is an old and well-established principle that is closely linked to the presumption of innocence.

[26] While fair and thorough cross-examination has a constitutional dimension, it does not follow that cross-examination can be unbridled or without limitation.

[27] Even if I agree with the suggestion that counsel would have been prevented from calling evidence to rebut M.A.'s testimony if she had denied her medical conditions and the several medications she was taking, either at the time of the assault, or while testifying, that does not mean I would have denied cross-examination on these issues. As a trier of fact, it would have been beneficial to have heard from M.A. about her conditions and drug therapies, and the effects, as she understood them, on her ability to perceive, interpret, and recall events.

[28] Given the manner in which these issues were raised by the complainant, by her own volition in her VIS, there is no reason to think she would not have admitted enough to have warranted a significant inquiry into these issues.

[29] As for the suggestion that current counsel cannot revisit the cross-examination strategy already pursued, I agree with counsel for the Applicant that former counsel had little to work with to challenge M.A.'s credibility. With what is now known about the inaccuracies in exhibit 4, there could have been a challenge mounted against M.A.'s credibility, which otherwise there was no reason or basis to pursue.

[30] The Respondent suggests that former counsel was not diligent for having failed to ask over the numerous times the complainant was questioned about the health history form whether or not there were any omissions or corrections to make. While I agree that nothing prevented former counsel from asking M.A. whether the statements contained in the questionnaire were accurate, I cannot fault counsel for failing to ask questions in the absence of any reason to inquire. This is information that was withheld for unknown reasons by the only person who knew of its existence.

[31] Moreover, even were I prepared to find that prior counsel was not duly diligent, a finding which is specifically unwarranted on the record at trial, this is only one factor in the assessment to re-open. I adopt the reasoning of Justice Trotter in Drysdale:

[I]f I were to conclude that the evidence might have changed my mind in terms of assessing credibility (a crucial issue in this case), then a lack of diligence should not stop me from admitting the evidence and preventing what might turn out to be a miscarriage of justice.

[32] I turn now to the ultimate issue for the determination of this Application, a consideration of the value of the fresh evidence.

[33] There is no suggestion that the fresh evidence is unpersuasive or incapable of being believed. Indeed, in respect of the complainant's revelations, such a suggestion may undermine the verdict for similar reasons if the complainant was now introducing incredible accounts unworthy of belief. The issue is whether the fresh evidence could be expected to have affected the verdict.

[34] I find that the fresh evidence could affect the verdict for the following reasons:

i. Even without the opinion evidence of Dr. Rootenberg, questions about the reliability of M.A.'s perceptions, interpretations, and recollections of her massage are critical to the determination of the value of her evidence; a trier of fact needs to hear M.A.'s evidence respecting her mental state and the effects (if any) of her medications on her ability to perceive, interpret, and recall events, in addition to any medical opinion evidence, before her reliability as a historian can be accepted;

ii. There were no corroborating witnesses or forensic evidence to support M.A.'s evidence and the Defendant did not recall having massaged M.A., and could do no more than offer a blanket denial to having sexually assaulted her; this meant that M.A.'s evidence took on a greater significance in this trial in terms of overcoming the presumption of innocence; there was no countervailing defence evidence or theory to undermine M.A.'s testimony; unexplored weaknesses in M.A.'s evidence could have left the court with a reasonable doubt;

iii. My reasons for judgment could have been different at paras. 43, 45, 46, 47, 48, 79, 80, and 81 depending on the complainant's answers to questions that counsel for the Defendant could not be faulted for failing to ask; and

iv. My reasons for judgment make it clear that I gave significance to the fact that M.A. was credible, she was not proven to be inconsistent or inaccurate, and she was a reliable witness; the fresh evidence casts a shadow on my assessment of the value of M.A.'s evidence, the explanation for her having walked into a closet following her massage, and the timing and rationale for having reported the sexual assault in the first place; my reasons indicated that "[t]his was a close case and a difficult decision to make," and I am not confident that I would have come to the same conclusion with the additional information about the complainant's mental and pharmacological states.

[35] Although written in respect of a different context, the Court of Appeal's finding in R. v. T.S., 2012 ONCA 289 assists: "The issue is not whether the undisclosed information would have made a difference in the trial outcome, but rather whether it could have made a difference." It is impossible to know with any certainty how the trial may have ended were the fresh evidence used to cross-examine M.A., but I am satisfied on a balance of probabilities that the verdict may not have been the same.

[36] The Application to re-open the trial is granted.

The Appropriate Remedy

[37] Counsel for the Applicant seeks a mistrial. The Respondent suggests it is possible to re-open the testimony of M.A. and to continue the trial until a(nother) verdict is reached.

[38] A mistrial should only be granted as a last resort, where no other remedy will adequately cure the defect in the trial process.

[39] The main purpose for which the new evidence is offered is the impeachment of M.A., on whose evidence alone, I convicted the Applicant. I would have to revisit factual findings based upon a reconsideration of the credibility and reliability of the complainant.

[40] The difficulty I would have is akin to that experienced by the trial judge in Drysdale. If I re-examined M.A.'s credibility and reliability and came to the same conclusion, any observer would wonder whether I had truly reconsidered the matter or simply chose to rehabilitate my earlier decision to convict. A suspicion would linger whether I could ever objectively judge my own deliberative process. No Defendant should have to question whether they received a fair trial.

[41] I agree with Justice Trotter, "Whatever result I reached would always be open to question. The only way to address this issue in a manner that is fair to both sides is to start all over again."

Conclusion

[42] This result is exceptional. I am satisfied that this is one of the clearest of cases where the verdict I reached respecting count 2 cannot stand.

[43] I have decided to grant a re-opening of the trial of this count, the sexual assault alleged against M.A., and for the reasons articulated above a mistrial is declared.

[44] Given this result, the date set aside for the Third-party records Application may be vacated.

Released: 18 November 2019

Justice G. Paul Renwick