ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 21/11
DATE: 20120515
B E T W E E N:
HER MAJESTY THE QUEEN
Elizabeth Stokes for the Respondent
Respondent
- and -
ANCIL DEDIER
David W. Russell for the Appellant
Appellant
HEARD: May 15, 2012
TROTTER J.
REASONS FOR JUDGMENT
INTRODUCTION
[ 1 ] It is a basic principle of evidence that a prosecutor must not ask an accused person whether he or she knows of any motivation for a witness to lie. As Mr. Robert J. Frater has pointed out in his helpful book, Prosecutorial Misconduct (Aurora, Ont.: Canada Law Book, 2009), at p. 146, this line of questioning seems to be pursued with “great frequency in sexual assault trials.” Just as frequently, appellate courts have disapproved of this line of questioning.
[ 2 ] In this sexual assault case, it was not the prosecutor who pursued this line of questioning; it was the trial judge who asked the questions, over the objection of the prosecutor. This prompted the appellant to provide what can only be described as a terrible answer. In the end, the trial judge rejected his evidence and found him guilty. For the reasons that follow, the appeal is allowed and a new trial is ordered.
BACKGROUND AND FACTS
[ 3 ] The appellant was tried on a single count of sexual assault before the Honourable Justice B. Cavion of the Ontario Court of Justice. The trial was brief and straightforward. The alleged sexual assault occurred in a hotel room where the complainant and her daughter were staying with the complainant’s friend and her daughter. The appellant was invited to the room by the complainant’s friend. The appellant and the complainant’s friend were on a cot, between two beds in the hotel room. The complainant was on one of the beds and testified that the appellant touched her sexually on a number of occasions.
[ 4 ] The appellant testified that he was having sex on the cot with the complainant’s friend and that he might have had accidental and incidental non-sexual contact with the complainant. Towards the end of the Crown’s cross-examination, the learned trial judge intervened with his own questions about the appellant’s relationship with the complainant’s friend and whether she had any reason to be upset with the appellant, apart from the complainant’s allegation of sexual assault. The following exchange then took place:
THE COURT: Now, can you offer any, I’m sure you’ve thought about it for a long time, and you offer what explanation, do you have any explanation, or any thoughts, or opinions, as to why [the complainant] would wake up in the middle of the night, and plant a lie like this on you?
THE ACCUSED: Maybe because we were - -
THE CROWN: Well - -
THE COURT: I’m going to ask it anyway.
THE ACCUSED: Maybe because we were having sex, and throughout the course of the night, she was saying oh, I wish I had a dude to get lucky with, and she – and I thought that me and [the complainant’s friend] having sex –
THE COURT: Yes.
THE ACCUSED: -- and it – she was insulted by that, she was –
THE COURT: Oh, I see.
THE ACCUSED: -- she was upset about the fact that we had sex, in her presence, and she came to realize that we were having sex.
[ 5 ] Shortly after the completion of the accused’s evidence, the trial judge heard submissions. The trial judge rendered brief Reasons for Judgment. The trial judge properly instructed himself on the principles of reasonable doubt as it applies to the issue of credibility: R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.). He reviewed the evidence of the complainant, including certain purported shortcomings as outlined by defence counsel at trial (not Mr. Russell). The trial judge concluded that “there is not a scintilla of doubt in my mind, not a shred of doubt, that [the complainant] is telling the truth and his denials ring false. Why?” The trial judge reviewed aspects of the complainant’s evidence again and concluded by saying: “I totally reject his denial. There is not a shred of doubt in my mind that he did what she said he did.”
[ 6 ] The appellant was convicted and sentenced to three months’ imprisonment. He has since served his sentence.
ANALYSIS
[ 7 ] The appellant challenges his conviction on two, interrelated bases. First, the appellant argues that the trial judge’s own questioning during his testimony was improper. Secondly, he argues that the trial judge’s reasons were inadequate.
[ 8 ] As I noted at the outset of these reasons, the line of questioning pursued by the trial judge during the testimony of the appellant was improper. Typically, this complaint arises on appeal when the prosecutor has asked these types of questions. Appellate decisions disapproving of this line of questioning are legion. [1] It is sufficient to quote from a recent pronouncement on this issue from the Court of Appeal in R. v. L.(L.) (2009), 244 C.C.C. (3d) 149 (Ont. C.A.), in which Simmons J.A. said the following at pp. 154-155:
Questions in cross-examination that ask an accused person to explain why a complainant would fabricate his or her allegations are improper for two reasons.
First, as a general matter, it is improper to invite one witness to comment on the veracity of another: R. v. Brown (1982), 1 C.C.C. (3d) 107 (Alta. C.A.) affirmed [1985] 2 S.C.R. 273. This principle has particular application to an accuser and the accused. As noted by Charron J.A. in R. v. Rose (2001), 53 O.R. (3d) 417 (C.A.) at para. 27, this court "has held repeatedly that it is improper to call upon an accused to comment on the credibility of his accusers".
Second, questions of this type create a risk of shifting the burden of proof because they may mislead the trier of fact into focussing on whether the accused can provide an explanation for the complainant's allegations instead of focussing on the central issue of whether the Crown has proved beyond a reasonable doubt that the allegations are true: R. v. S.(W.) (1994), 18 O.R. (3d) 509 (C.A.), leave to appeal to the S.C.C. refused, [1994] S.C.C.A. No. 290; R. v. Ellard (2003), 172 C.C.C. (3rd) 28 (B.C.C.A.). As this court said in R. v. F.(C.), [1996] O.J. No. 297, such questions create a risk that the jury may draw an adverse inference if the accused fails to provide a "reasoned or persuasive" response.
Ultimately, the Court concluded that any prejudice that resulted from this line of questioning was cured by a clear instruction to the jury.
[ 9 ] This case is different. First of all, it was the trial judge himself who asked the offending questions, even after an objection by the prosecutor. Secondly, this was a trial by judge alone. The question then turns to whether the trial judge’s reasons dispel any concern about the misuse of this evidence. In my view, they do not.
[ 10 ] As noted above, the trial judge’s reasons are extremely brief. And while the trial judge scrutinized the complainant’s evidence before accepting it, he dealt with the appellant’s evidence in a conclusory manner, simply asserting “his denials ring false” and “I totally reject his denial.” He never explained why he rejected the appellant’s evidence. Moreover, the trial judge never dispelled the very real concern that he may have relied upon the damaging evidence that he elicited through his own improper questioning: R. v. Wojcik (2002), 166 C.C.C. (3d) 418 (Man. C.A.), at pp. 426-427.
[ 11 ] In the end, I am left wondering why the trial judge rejected the appellant’s evidence and whether the improperly elicited evidence played any role along the path to conviction: R. v. D. (S.J.) (2004), 186 C.C.C. (3d) 304 (Ont. C.A.), at p. 313. Moreover, this is not one of those cases in which it can be said that the trial judge’s wholesale acceptance of the complainant’s evidence lead inexorably to the rejection of the appellant’s evidence: see R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.).
CONCLUSION
[ 12 ] For these reasons, the appeal is allowed, the conviction is set aside and a new trial is ordered.
TROTTER J.
Released: May 15, 2012
COURT FILE NO.: 21/11
DATE: 20110515
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and - ANCIL DEDIER Appellant REASONS FOR JUDGMENT TROTTER J.
Released: May 15, 2012
[1] See Frater, Prosecutorial Misconduct, supra, at p. 146, fn. 36 in which a number of these cases are collected.