Ontario Superior Court of Justice

Court File No.: 10-10000739-0000
Date: 20120131

WARNING

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code .

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – M.C.

N. Golwalla, for the Crown
M. Czuma, for Mr. M. C.

HEARD: January 27 and 30, 2012

THORBURN J.

APPLICATION TO INTRODUCE THIRD PARTY EVIDENCE

1. THE ISSUE

[1] M.C. is charged with sexual assault, unlawful confinement, sexual touching of a person under fourteen years of age, and two counts of uttering death threats to the Complainant. The accused elected to be tried by judge alone.

[2] M.C.’s counsel, Mr. Czuma seeks to adduce third party evidence to contradict evidence given by the Complainant. The Crown objects to the introduction of this evidence on the basis that it offends the collateral fact rule.

2. EVIDENCE ADDUCED FROM THE COMPLAINANT

[3] During the Complainant’s examination in chief, the Crown adduced evidence from the Complainant that his father and his uncle, M.C., forced him to drink alcohol when he was approximately seven years old and that the Complainant’s father took him swimming and pushed his head under water such that the Complainant was afraid he would drown. This evidence was adduced for the truth of its contents.

[4] In Cross-examination, Mr. Czuma suggested to the Complainant that these incidents did not happen and that the Complainant was lying. The Complainant denied those suggestions.

[5] Mr. Czuma raised with the Complainant for the first time on cross examination that some time before the alleged sexual assault in this case, he ran into his cousin’s house in a state of panic and shouted that someone was trying to shoot him although no one was in fact trying to shoot him. The Complainant did not recall this incident.

3. THE POSITIONS OF THE PARTIES

[6] Mr. Czuma on behalf of the accused, seeks leave to adduce the following third party evidence at trial:

(a) M.C. never forced the Complainant to drink alcohol at family parties when the Complainant was a young child;

(b) M.C.’s brother (the Complainant’s father) never tried to push the Complainant’s head under water while they were swimming at a pool together; and

(c) some time prior to these allegations when the Complainant and his cousin were playing outside, the Complainant ran in screaming that someone was trying to shoot him. M.C. seeks to adduce third party evidence that there was no one was trying to shoot the Complainant.

[7] The issue of whether the accused and his brother forced the Complainant to drink alcohol and the allegation that the Complainant’s father’s attempted to drown him were lead by the Crown during the Complainant’s examination in chief. They were introduced for the truth of their contents on the consent of both parties. The Complainant disclosed these incidents to police at the same time as he disclosed that he had been sexually assaulted. The Crown explained that this was done so that Mr. Czuma could cross-examine the Complainant.

[8] Mr. Czuma claims that third party evidence as to the truth of these three incidents, is relevant and material to this case as this evidence, if accepted, could show a personality trait of a child inclined to imagine things that do not happen. If Defence evidence as to some or all of these incidents is accepted, it could explain why the Complainant disclosed that he was sexually assaulted by M.C. and thereby raise a reasonable doubt as to his guilt.

[9] The Crown objects to the introduction of this third party evidence. He takes the position that none of this evidence should be admitted because it offends the collateral fact rule.

4. THE LAW

Defining Collateral Fact

[10] The words “collateral fact” are defined in Black’s Law Dictionary as, “A fact not directly connected to the issue in dispute esp. because it involves a different transaction from the one at issue.” (Black’s Law Dictionary 8 th ed, sub verbo “collateral fact”.) Collateral fact is defined in The Oxford English Dictionary , 2 nd ed, sub verbo “collateral fact” as “a fact not considered relevant to the matter in dispute in an action.”

[11] The collateral fact rule prohibits a party from calling extrinsic evidence to contradict the other side’s witness on a collateral issue. ( R. v. Cargill , [1913] 2 K.B. 271 (C.C.A.) ; R. v. Hrechuk (1950), 1950 382 (MB CA) , 10 C.R. 132 (Man. C.A.) , at p. 135 ; R. v. Rafael (1972), 1972 640 (ON CA) , 3 O.R. 238 (C.A.) , at p. 330 ; Latour v. The Queen , 1976 145 (SCC) , [1978] 1 S.C.R. 361 , at p. 367 ; R. v. Cassibo (1982), 1982 1953 (ON CA) , 39 O.R. (2d) 288 (C.A.) , at p. 506 .)

[12] 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.” ( R. v. Krause , 1986 39 (SCC) , [1986] 2 S.C.R. 466, per McIntyre J. and Attorney-General v . Hitchcock (1847), 1 Ex. 91 , 154 E.R. 38 , at p. 42 per Pollock C.B. )

[13] 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.

[14] The rule is based on policy considerations of trial efficiency. Allowing proof on collateral matters may confuse the trier of fact by engaging 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. (D. Paciocco and L. Struesser , The Law of Evidence , 3 rd ed. (Toronto: Irwin Law, 2002), at pp. 348 and 349.)

[15] 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. (Bryant, Lederman and Fuerst, Evidence (3d) at pp. 1165 to 1176, and R. v. Jason C. Boyd 2006 MBQB 128 () , [2006] 11 WWR 721; 203 Man R (2d) 282, (Man. Q.B.))

[16] Bias, interest, and corruption may affect the witness’s credibility and mental defects may affect the reliability of the witness’s testimony. The witness’s reputation for truthfulness goes to the heart of the witness’s evidence.

Determining Whether Evidence is Collateral

[17] There are two general approaches to determine whether the evidence is collateral:

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’s credibility.

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. (Paciocco and Struesser , The Law of Evidence , supra at pp. 348 and 349.)

[18] In R. v. B. (A.R.) (1998), 1998 14603 (ON CA) , 41 O.R. (3d) 361 (C.A.), aff’d 2000 SCC 30 , the accused was charged with sexually assaulting the Complainant. Evidence related to other alleged sexual assaults by family members of the accused, which had been referred to by the Complainant in her statement to the police, was not admissible due to the collateral fact rule.

[19] However, in R. v. Prebtani , 2008 ONCA 735 , the accused was charged with assault, assault with a weapon and uttering a death threat. 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. (See para 15 above.) He went on to state that,

129 ... Crown counsel objected to the evidence of the appellant's young cousin. She would have testified to an incident when the complainant apparently swore at the appellant in her presence. This evidence, if believed, would have contradicted the complainant on her assertion that she would never do any such thing for fear it would "trigger him off".

130 ... In this case, the cousin's evidence would not merely contradict the complainant's assertion that she did not swear at the appellant on the occasion in question. The evidence, if believed, could undermine the complainant's assertion that the appellant, rather than she, was the verbally abusive party in the relationship. It could also undermine her broad assertion that she would never swear at the appellant for fear that he would abuse her.

[20] 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?

5. APPLICATION OF THE LAW TO THE FACTS

[21] In this case, the Complainant disclosed the details of this alleged sexual assault over a prolonged period. The circumstances of the Complainant’s disclosure that he was sexually assaulted are material to this case. The Complainant’s behaviour prior to the disclosure of this alleged assault is relevant and material to the case because it may demonstrate a pattern of behaviour wherein the Complainant imagined things that did not happen. If that evidence is believed, it could provide an explanation as to why the Complainant disclosed that he had been sexually assaulted when the accused asserts this did not happen.

[22] I would distinguish the B. (A.R.) case from the case before me as the proposed evidence was sought to be introduced to contradict the witness on collateral matters so as to impugn her credibility. Finlayson J.A. for the majority held that, “The fact that others had sexually assaulted the Complainant is irrelevant to the charges against the appellant and to any defence he might have to the charges.” In the case before me, the evidence is being sought to explain the cause of the disclosure made by the Complainant regarding these charges.

[23] Secondly, the right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to challenge the evidence called by the prosecution. ( R. v . Seaboyer , 1991 76 (SCC) , [1991] 2 S.C.R. 577, per McLachlin J., for the majority, at p. 608.) For this reason, the court has the power to exclude relevant evidence tendered by the Crown on the basis that its prejudicial effect outweighs its probative value. However, when dealing with evidence led by the accused, the scope is narrower and must take into account the constitutional protection that an innocent person not be convicted which is dependent on the right to present full answer and defence. This is turn depends on the ability to challenge evidence called by the prosecution. ( R. v. Clarke (1998), 1998 14604 (ON CA) , 129 C.C.C. (3d) 1 (Ont. C.A.), at para.33; Seaboyer ( supra ) . )

[24] The Crown introduced evidence that M.C. forced the Complainant to drink alcohol when he was a very young boy and that his brother (the Complainant’s father) tried to drown the Complainant. This evidence was admitted for the truth of its contents. It would be unfair under these circumstances to refuse to allow Mr. C. to introduce third party evidence to refute the evidence the Crown tendered for the truth of its contents.

[25] Thirdly, there is a general discretion to exclude evidence where its probative value is outweighed by its prejudicial effect. Prejudice to the trial process is to be considered in addition to the prejudice that might arise with respect to any party or witness to the proceeding. ( R. v. B.(A.R.) , supra. )

[26] Much of the evidence relating to the drinking, swimming and shooting incidents has already been heard on this trial by judge alone. Mr. Czuma estimates that very little additional time will be needed to address these issues. Allowing the witness to be cross examined on these issues and to permit one other witness to testify to the shooting incident would not unduly extend the court’s resources, or confuse the issues. It is relevant and material to the reliability of the Complainant’s disclosure of the sexual assault. For this reason, the probative value of this evidence outweighs any prejudicial effect.

[27] For these reasons, the evidence as to the drinking, swimming and shooting incidents is admissible for consideration by the court in these trial proceedings.

Thorburn J.

Released: January 31, 2012

COURT FILE NO.: 10-10000739-0000
DATE: 20120131

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – M.C.

RULING RE APPLICATION TO INTRODUCE THID PARTY EVIDENCE Thorburn J.

Released: January 31, 2012