R. v. Michael Durant

COURT FILE NO.: 3283/08

DATE: 2012-11-28

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Michael Durant

BEFORE: Mr Justice Ramsay

COUNSEL: Mr D. King and Mr J. Richardson for the Crown

Mr M. Lacy and Mr B. Greenshields for the accused

HEARD: 2012-09-13 at Welland

ENDORSEMENT

[1] These are my reasons for a ruling. The Crown proposed to elicit from its witness in chief that she had given a previous inconsistent statement and ask her why. The expected answer was that she was afraid of the accused.

[2] The defence objected on the ground that it would be oath-helping, and cited R. v. Pinkus, [1999] O.J. No 4063 (SC) and R. v. Abeyewardene, [2008] O.J. No. 5753 (SC) in support. R. v. Clarke, [1981] A.J. No. 933 (CA) and R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 SCR 697 are also pertinent. As the Supreme Court said in B. (F.F.) at ¶70, the rule against oath-helping prohibits a party from presenting evidence solely for the purpose of bolstering a witness’ credibility before that witness’s credibility is attacked.

This type of evidence is of the sort that would tend to prove the truthfulness of the witness, rather than the truth of the witness' statements. It includes psychiatric evidence that the witness is likely to tell the truth in court (see, e.g., R. v. Kyselka (1962), 1962 596 (ON CA), 133 C.C.C. 103 (Ont. C.A.)), evidence of good character called solely to illustrate that a witness is likely telling the truth (see, e.g., R. v. Clarke (1981), 1981 ABCA 222, 63 C.C.C. (2d) 224 (Alta. C.A.)) and polygraph evidence (see, e.g., R. v. Béland, 1987 27 (SCC), [1987] 2 S.C.R. 398).

[3] In B. (F.F.) the testimony of two witnesses about the violent domination of the household by the accused was held to be corroborative of an issue in the trial, as opposed to evidence called for the purpose of shoring up the credibility of a previous witness. Accordingly, it was admissible.

[4] The appellate cases deal with evidence about the characteristics of the witness that tend to support his or her truthfulness. In Clarke, for instance, the Crown went so far as to elicit the witness’s Bible study as part of his rehabilitation from his previous life of crime. There is nothing like that in Pinkus or Abeyewardene.

[5] Pinkus is indistinguishable from the case before me. The witness had given a previous inconsistent statement. Abeyewardene involved asking a witness whether she had been charged as an accessory after the fact of the crime in issue. Both judges held that to canvass the question in examination in chief would be oath-helping. They both noted that witnesses are often asked in chief about their criminal records but held that that is a statutory exception to the rule against oath-helping, a necessary result of the wording of s.12 of the Canada Evidence Act.

[6] In Pinkus, McKinnon J. said at ¶17:

In my opinion, the rule against oath-helping is a sound one and worthy of application in the present case. To permit Mr. Berzins to lead the witness through an explanation as to why she made previous inconsistent statements would inevitably take some of the sting out of the cross-examination.

[7] McKinnon J. considered R. v. Lawrence, [1989] O.J. No. 2060 (CA), in which the trial judge (Campbell J.) allowed the Crown to elicit a previous inconsistent statement in chief, although not the explanation for it. The appeal did not turn on this point and the Court of Appeal did not comment on its correctness. Rather it held that the explanation was properly admitted in re-examination because of the nature of the cross-examination. There are therefore conflicting authorities in the Superior Court, namely Pinkus and Abeyewardene on the one hand and the ruling at trial in Lawrence on the other.

[8] I agree with Campbell J.’s ruling in Lawrence. Asking a witness about recanting a previous inconsistent statement (or, for that matter, the fact of being charged as an accomplice) does not prove the truthfulness of the witness. The question is not asked for that purpose. It detracts from the truthfulness of the witness. Bringing it out in chief is simply designed to dispel any impression that the Crown was hoping that the jury would not find out. It is perfectly legitimate advocacy. It has nothing to do with the rule against oath-helping. Neither does s.12 of the Canada Evidence Act. As for the explanation, some of it is tied up with the evidence of the witness’s relationship with the accused and will inevitably come out in chief. At certain relevant times the witness was married to the accused. It is also conceded that certain letters sent by the accused to the witness are admissible. Beyond that, the explanation for the previous statements should wait for cross-examination and re-examination, in the usual course.

[9] The Crown is entitled to elicit from the witness in chief the fact of the previous inconsistent statements in a general way and the timing of her change of heart.

J.A. Ramsay J.

Date: 2012-11-28