R. v. Burns, [1994] 1 S.C.R. 656
Her Majesty The Queen Appellant
v.
Robert Howard Burns Respondent
Indexed as: R. v. Burns
File No.: 23115.
1994: January 26; 1994: April 14.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Powers of court of appeal -- Accused convicted of sexual offences on basis of complainant's testimony -- Convictions overturned on appeal ‑‑ Whether Court of Appeal exceeded proper limits of appellate review ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(a)(i).
Criminal law ‑‑ Sexual offences ‑‑ Evidence ‑‑ Credibility of witnesses ‑‑ Expert evidence ‑‑ Trial judge convicting accused on basis of complainant's testimony -- Convictions overturned on appeal ‑‑ Whether Court of Appeal erred in setting aside trial judge's conclusions on credibility ‑‑ Whether Court of Appeal erred in concluding that trial judge did not err in decisions on admissibility or use of evidence.
The accused was charged with sexual assault and indecent assault. The complainant's mother had died when the complainant was four years old, leaving her to the care of her father, an admitted alcoholic. She spent the next years living in a variety of arrangements, some of the time with her father. The alleged assaults occurred when the complainant was either living with or visiting her father, who was a friend of the accused. The complainant's allegations against the accused came to light after she had been charged with sexually abusing five young boys while baby‑sitting them. While receiving counselling and psychological care as a result of these charges, she revealed that she herself had been sexually abused. She testified at trial that she had told no one about the incidents at the time for fear of being disbelieved and losing her father. The complainant's psychiatrist testified that the complainant was sexually abused and explained why he held that opinion. The accused did not testify at trial. He was convicted on both counts. The Court of Appeal set aside the convictions and ordered a new trial. In the court's view, the complainant's evidence was not overwhelming. Without saying that the complainant should not have been believed, the court held that the accused was entitled to assume that the trial judge would either apply the doctrine of reasonable doubt to the evidence and acquit him, or at least explain why the evidence did not raise a reasonable doubt, something which the trial judge had not done. This appeal is to determine whether the Court of Appeal erred in setting aside the trial judge's conclusion that the complainant was credible and in concluding that the trial judge did not err in his decisions on the admissibility or use of evidence.
Held: The appeal should be allowed and the convictions restored.
In determining whether a trial judge's verdict is unreasonable or one that cannot be supported on the evidence, under s. 686(1)(a)(i) of the Criminal Code, a court of appeal is entitled to review the evidence, re‑examining it and re‑weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge's conclusion. Provided this threshold test is met, the court is not to substitute its view for that of the trial judge or permit doubts it may have to persuade it to order a new trial. The Court of Appeal in this case held that a finding of guilty might be "a perfectly acceptable result", and thus should not have set aside the trial judge's verdict. Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal.
The Court of Appeal was correct in holding that there was no merit in the accused's objections to certain evidentiary points at trial. The psychiatrist's evidence as to sexual abuse suffered by the complainant was not unnecessary or unfair. The general rule is that expert evidence is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of the judge and jury, and the use of experts to explain human behaviour may fall within this rule. The psychiatrist's relation of the history of abuse given to him by the complainant is not inadmissible as hearsay, since the statements in question were not tendered for the truth of their contents, but rather in support of his diagnosis of the complainant's mental state and his explanation of her behaviour. Nor did his evidence violate the rule against oath‑helping since it was directed to legitimate purposes having nothing to do with whether the complainant was credible or not.
Cases Cited
Referred to: R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168; R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122; R. v. Smith, 1990 99 (SCC), [1990] 1 S.C.R. 991, aff'g (1989), 1989 ABCA 187, 95 A.R. 304; Macdonald v. The Queen, 1976 140 (SCC), [1977] 2 S.C.R. 665; Harper v. The Queen, 1982 11 (SCC), [1982] 1 S.C.R. 2; R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223; R. v. Béland, 1987 27 (SCC), [1987] 2 S.C.R. 398; R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24; R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852; Graat v. The Queen, 1982 33 (SCC), [1982] 2 S.C.R. 819; Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 2784 (ON CA), 9 O.R. (3d) 641; Wilband v. The Queen, 1966 3 (SCC), [1967] S.C.R. 14; R. v. Rosik (1970), 1970 278 (ON CA), 2 C.C.C. (2d) 351; Phillion v. The Queen, 1977 23 (SCC), [1978] 1 S.C.R. 18; R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697; R. v. Wild (1993), 24 B.C.A.C. 241.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(a).
Authors Cited
Delisle, R. J. "Children as Witnesses: The Problems Persist" (1994), 25 C.R. (4th) 39.
APPEAL from a judgment of the British Columbia Court of Appeal (1992), 1992 5998 (BC CA), 74 C.C.C. (3d) 124, 15 B.C.A.C. 264, 27 W.A.C. 264, quashing the accused's convictions on charges of sexual assault and indecent assault and ordering a new trial. Appeal allowed and convictions restored.
Alexander Budlovsky, for the appellant.
Henry S. Brown, Q.C., for the respondent.
The judgment of the Court was delivered by
McLachlin J. -- The respondent Burns was convicted on one count of sexual assault and one count of indecent assault before a trial judge, sitting alone. The Court of Appeal of British Columbia quashed the convictions and directed a new trial. The Crown now appeals from that order.
The facts may be briefly stated. The complainant was born on August 27, 1971. Her mother died when she was four years of age, leaving her to the care of her father, an admitted alcoholic. She spent the next years living in a variety of arrangements. For some of the time she lived with her father. She also lived for part of her young life with her father and his new wife and her son, and then just with the new wife and her son. Twice she was consigned to foster homes.
The alleged assaults occurred when the complainant was either living with or visiting her father. The complainant's father and Burns were friends; in this way the two came into contact.
The complainant's allegations against Burns came to light after she had been charged with sexually abusing five young boys while baby-sitting them. As a result of these charges, she received counselling and psychological care. At this time, she revealed that she herself had been sexually abused.
The complainant testified at trial that in or about 1980, Burns had driven her to a sideroad and had indecently assaulted her. She said another incident occurred in Burns' car about four years later. A third incident occurred, she said, about a year to a year and a half after that. In addition, she testified that acts of sexual touching without her consent continued throughout the time period when Burns was alone with her in her father's mobile home. She said that in 1987, while she was alone in the home, Burns entered and forcibly had sexual intercourse with her. The complainant testified that she told no one about these incidents at the time for fear of being disbelieved and losing her father.
The complainant's psychiatrist, Dr. Maddess, testified as to her condition as a consequence of what she had allegedly undergone, giving a picture of why she would have reacted as she said she did. Burns did not testify at trial. Evidence of a statement he had made to the police was ruled inadmissible by the trial judge.
Judgments Below
Trial Judge
The trial judge gave brief oral reasons at the conclusion of the trial. After reviewing the evidence, he concluded as follows:
I had the opportunity to hear the evidence of [the complainant] and to observe her demeanour in the witness stand. Although she was not sure of the exact dates of the specific acts and was confused as to some of the continuing events, she did present her evidence in an honest and straightforward manner, without equivocation. She was in my opinion a credible and believable witness. I accept her evidence as to the alleged indecent assaults from 1980 to 1983, and I also accept her evidence as to the sexual assault that occurred in January of 1987.
Based upon that evidence, I am satisfied beyond a reasonable doubt that the accused is guilty on both counts.
Court of Appeal
The Court of Appeal set aside the convictions and directed a new trial: (1992), 1992 5998 (BC CA), 74 C.C.C. (3d) 124. According to the court, there were a number of reasons why the evidence of the complainant required careful scrutiny and therefore it was not surprising that the accused declined to testify. The Crown's case depended almost entirely upon the credibility of the complainant and her evidence was not, in the view of the Court of Appeal, overwhelming. Without saying that the complainant should not have been believed, the court, per McEachern C.J.B.C., held that the respondent was entitled to assume that the trial judge would either apply the doctrine of reasonable doubt to the evidence and acquit the respondent, or at least explain why the evidence did not raise a reasonable doubt. This he found the trial judge had not done. After referring to "serious questions" arising from the evidence, McEachern C.J.B.C. concluded as follows (at p. 132):
I wish to stress that I do not say the accused should have been acquitted. That is the responsibility of the trial judge, and I would not presume to prejudge that question. I tend to believe that a finding of guilty on a careful weighing of all of the evidence, and a proper analysis of all relevant issues, may be a perfectly acceptable result.
The reasons for judgment, however, do not permit me to determine whether the learned trial judge properly directed himself to all the evidence and legal questions bearing upon the relevant issues as required by Harper [1982 11 (SCC), [1982] 1 S.C.R. 2]. This does not result simply because the learned trial judge did not give more extensive reasons, but rather because he subsumed so many issues in his findings of credibility that it is impossible to say whether the doctrine of reasonable doubt, the `thin golden thread of the law', was given proper weight in this case.
The foregoing is sufficient to dispose of this appeal, and to persuade me that the appeal must be allowed, and a new trial ordered.
The Court of Appeal also rejected the submissions that the trial judge erred in permitting the Crown to adduce unnecessary and unfair expert evidence, in receiving hearsay evidence in support of Dr. Maddess' opinion, in receiving evidence described as oath-helping, in permitting the Crown to adduce so much evidence about Burns' failed polygraph test in a voir dire designed to establish the voluntariness of a post-polygraph statement, and in allowing the accused's statement to be treated as an inculpatory statement.
Issues on Appeal
This appeal raises two issues:
(1) Did the Court of Appeal err in setting aside the trial judge's conclusion that the complainant was credible?
(2) Did the Court of Appeal err in concluding that the trial judge did not err in his decisions on admissibility or use of evidence?
Analysis
(1) Setting Aside the Trial Judge's Conclusion that the Complainant was Credible
The trial judge believed the complainant and said that he was satisfied beyond a reasonable doubt of the accused's guilt. The Court of Appeal had doubts about the credibility of the complainant and, unable to satisfy itself from the trial judge's reasons that he had considered the factors which led to these doubts, set aside the trial judge's findings of credibility and guilt and directed a new trial. The Court of Appeal's reasons raise two intertwined legal questions: (a) when may a court of appeal interfere with a trier of fact's conclusions on credibility; and (b) the need for a trial judge's reasons to address specific concerns. Although the two questions intertwine in this case, for reasons of convenience I shall consider each separately.
(a) Interfering with the Trier of Fact's Conclusions on Credibility
Section 686(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46, permits a court of appeal to allow an appeal in three cases:
- (1) . . . the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
It is not suggested that a case for miscarriage of justice was made out. Nor did the Court of Appeal find an error of law by the trial judge. The question therefore is whether the trial judge's verdict was unreasonable or one that cannot be supported on the evidence: s. 686(1)(a)(i).
In proceeding under s. 686(1)(a)(i), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge's conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it: R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168; R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122. Provided this threshold test is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial.
The Court of Appeal in this case reviewed the evidence fully, as it was entitled to do. This review, however, did not lead it to conclude that the trial judge's conclusion was unreasonable, nor that it could not be supported by the evidence. Indeed, McEachern C.J.B.C. conceded the contrary when he said "I tend to believe that a finding of guilty on a careful weighing of all of the evidence, and a proper analysis of all relevant issues, may be a perfectly acceptable result" (p. 132). This is tantamount to saying that there was sufficient evidence to reasonably support a conviction. That being the case, the Court of Appeal should not have set aside the verdict of the trial judge.
(b) Insufficiency of Reasons
The Court of Appeal's main concern was not that there was insufficient evidence to support the verdicts of guilty, nor that those verdicts were unreasonable, but that the trial judge's reasons failed to indicate that he had considered certain frailties in the complainant's evidence. Given the brevity of the trial judge's reasons, they could not be sure that he had properly considered all relevant matters.
Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal under s. 686(1)(a). This accords with the general rule that a trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points: see R. v. Smith, 1990 99 (SCC), [1990] 1 S.C.R. 991, affirming (1989), 1989 ABCA 187, 95 A.R. 304, and Macdonald v. The Queen, 1976 140 (SCC), [1977] 2 S.C.R. 665. The judge is not required to demonstrate that he or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain a reasonable doubt as to the accused's guilt. Failure to do any of these things does not, in itself, permit a court of appeal to set aside the verdict.
This rule makes good sense. To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably. Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case.
The Court of Appeal relied on the following passage from Harper v. The Queen, 1982 11 (SCC), [1982] 1 S.C.R. 2, where this Court stated (at p. 14):
Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede.
This statement should not be read as placing on trial judges a positive duty to demonstrate in their reasons that they have completely appreciated each aspect of relevant evidence. The statement does not refer to the case where the trial judge has failed to allude to difficulties in the evidence, but rather to the case where the trial judge's reasons demonstrate that he or she has failed to grasp an important point or has chosen to disregard it, leading to the conclusion that the verdict was not one which the trier of fact could reasonably have reached.
McEachern C.J.B.C. did not suggest that the trial judge had demonstrated a misapprehension or a total failure to appreciate the evidence. Rather, he said only that the subsumption of so many issues within the trial judge's finding on credibility left him unable to say whether the doctrine of reasonable doubt had been applied. These conclusions do not bring the case within Harper, as I read that case.
(2) Evidentiary Points
The balance of the respondent Burns' objections to the trial concerned evidentiary points. The Court of Appeal held that there was no merit in any of them. I agree.
Three of the objections concerned the evidence of the psychiatrist, Dr. Maddess. It was first objected that Dr. Maddess' evidence as to sexual abuse suffered by the complainant was unnecessary and unfair, it being obvious from the complainant's own evidence that she had indeed been sexually abused by her stepbrother. I agree with the Court of Appeal that this objection cannot be sustained. Dr. Maddess testified that the complainant was sexually abused and explained why he held that opinion. He also explained some of the symptoms displayed in the behaviour of sexually abused children, which, without expert testimony, may be difficult if not impossible to understand.
The general rule is that expert evidence is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of the judge and jury: R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, at p. 243 (per McLachlin J.); R. v. Béland, 1987 27 (SCC), [1987] 2 S.C.R. 398, at p. 415 (per McIntyre J.); R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24, at p. 42 (per Dickson J.). The use of experts to explain human behaviour may fall within this rule. The behaviour of a person who has been systematically abused is one example of a matter on which experts may assist. This use of expert evidence was approved by this Court in R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852, where expert evidence of the reactions and behaviour of a woman who had been repeatedly battered by her companion was admitted: see Wilson J.'s reasons at pp. 870-72.
The respondent does not argue that psychiatric evidence bearing on a witness's behaviour is for that reason inadmissible. His objection is that "the opinion of Dr. Maddess went to the very root of the issue before the learned trial judge" and that "allowing that opinion usurped the function of the trial judge": the so-called "ultimate issue rule". However, the jurisprudence does not support such a strict application of this rule. While care must be taken to ensure that the judge or jury, and not the expert, makes the final decisions on all issues in the case, it has long been accepted that expert evidence on matters of fact should not be excluded simply because it suggests answers to issues which are at the core of the dispute before the court: Graat v. The Queen, 1982 33 (SCC), [1982] 2 S.C.R. 819. See also Khan v. College of Physicians and Surgeons of Ontario (1992), 1992 2784 (ON CA), 9 O.R. (3d) 641 (C.A.), at p. 666 (per Doherty J.A).
The second objection to Dr. Maddess' evidence is that Dr. Maddess' relation of the history of abuse given to him by the complainant was hearsay. The short answer to this objection is that the statements in question were not tendered for the truth of their contents, but rather in support of Dr. Maddess' diagnosis of the complainant's mental state and his explanation of her behaviour. The complainant testified to the history of abuse against her. The statements to Dr. Maddess were therefore admissible to support his diagnosis: Wilband v. The Queen, 1966 3 (SCC), [1967] S.C.R. 14; R. v. Rosik (1970), 1970 278 (ON CA), 2 C.C.C. (2d) 351 (Ont. C.A.); Phillion v. The Queen, 1977 23 (SCC), [1978] 1 S.C.R. 18; R. v. Abbey, supra; R. v. Lavallee, supra. In assessing the weight to be placed on Dr. Maddess' opinion, the trial judge was required to take into account that it was founded in part on hearsay evidence: Lavallee, supra, at p. 896. However, there is no reason to suppose that the trial judge failed to do so.
The third objection to Dr. Maddess' evidence was to a question and answer which was said to violate the rule against oath-helping:
Q. Did at any time as far as you were aware she tell you something which was untrue?
A. Not that I am aware of.
The rule against oath-helping holds that evidence adduced solely for the purpose of proving that a witness is truthful is inadmissible: R. v. Marquard, supra. The rule finds its origins in the medieval practice of oath-helping; the accused in a criminal case or the defendant in a civil case could prove his innocence by providing a certain number of compurgators to swear to the truth of his oath: see R. v. Béland, supra, per Wilson J. at pp. 419-20. In modern times, it is defended on the ground that determinations of credibility are for the trier of fact, and that the judge or jurors are in as good a position to determine credibility as another witness. Therefore the fundamental requirement for expert evidence -- that it assist the judge or jury on a technical or scientific matter which might otherwise not be apparent -- is not met. The rule, as Iacobucci J. noted in R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697, at p. 729, goes to evidence "that would tend to prove the truthfulness of the witness, rather than the truth of the witness' statements".
Dr. Maddess' evidence does not violate the rule because it was directed to legitimate purposes having nothing to do with whether the complainant was credible or not. The fact that evidence may be inadmissible for one purpose (i.e. showing the truthfulness of a witness) does not prevent it being received for another, legitimate purpose. The evidence of Dr. Maddess in the impugned passage was admissible for the purpose of supporting the opinions Dr. Maddess expressed on other matters, such as his diagnosis of the complainant's condition and his explanation of her behaviour. His conclusions were based in large part on what she had told him. Those conclusions would be weakened if not invalidated if he did not believe what she had told him. So it was relevant to determine whether he believed her or not. See Taylor J.A. in R. v. Wild (1993), 24 B.C.A.C. 241, at pp. 247-48; R. J. Delisle, "Children as Witnesses: The Problems Persist" (1994), 25 C.R. (4th) 39, at p. 44. I conclude that the impugned question and answer were admissible for the purpose of providing a foundation for Dr. Maddess' opinions. It follows that they did not offend the rule against oath-helping.
There is nothing in the trial judge's reasons to suggest that he used the question and answer for the inference that the complainant was a truthful witness. He lists a number of factors relevant to her credibility; this is not among them. His reasons suggest that he was exercising his own independent judgment on the complainant's truthfulness, rather than relying on the opinions of others. Moreover, the evidence had been objected to on the ground that it was oath-helping. The trial judge had therefore been alerted to the impermissible use of the evidence and must be presumed to have borne this in mind. In short, there is nothing in the record to suggest that the trial judge used the statement to bolster the complainant's credibility; indeed the inference is to the contrary.
Two other reproaches made against the trial judge may be dismissed summarily. It was objected that counsel and the trial judge erred in treating a statement by Burns as to consensual sex with the complainant as inculpatory rather than exculpatory. The statement was excluded as involuntary after a voir dire. I agree with the Court of Appeal that the trial judge did not err in treating the statement as inculpatory. Likewise, the suggestion that too much evidence about Burns' failed polygraph test was permitted in the voir dire on the admissibility of the post-polygraph statement has no merit; as the Court of Appeal below pointed out, the judge proceeded properly and must be presumed to have disabused his mind of this evidence in considering the merits of the case.
Conclusion
I would allow the appeal and restore the convictions.
Appeal allowed and convictions restored.
Solicitor for the appellant: Alexander Budlovsky, Vancouver.
Solicitors for the respondent: Cram & Hood, Vancouver.