WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

486.6 (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.

CITATION: R. v. Rayner, 2015 ONSC 2422

NEWMARKET COURT FILE NO.: CR-12-7688

DATE: 20150414

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Vanessa Rayner

Defendant

Kellie Hutchinson, for the Crown

Daniel MacAdam, for the Defendant

HEARD: April 7, 2015

REASONS FOR RULING RE: OBJECTION BY THE CROWN

RESTRICTION ON PUBLICATION: By court order made under subsection 486.4 of the Criminal Code, information that may identify the person described in this ruling as the complainant, his/her parents or witnesses, may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

McKELVEY J.:

Introduction

[1] The defendant in this case faces several charges for sexual offences against a minor. The Crown alleges that the defendant had a variety of sexual activities with the complainant over a period from October 2011 to April 2012.

[2] The complainant has given evidence at trial. His evidence was given via video link from a room outside the courtroom pursuant to s.483.2(1) of the Criminal Code.

[3] An issue was raised by the Crown with respect to the anticipated cross-examination of the complainant’s father, who was the next scheduled witness in this trial. Specifically, it was anticipated by the Crown that the defence would seek to challenge the credibility of the complainant by suggesting to the father that his son was a sophisticated eleven year old as a result of the child’s life experiences and the father’s drug addiction issues. The Crown anticipated that these suggestions might include an assertion that the complainant was able to make up an elaborate story because of this higher level of sophistication.

[4] The defendant in this case has pleaded not guilty to all charges and it is apparent that she is denying all allegations of sexual activity with the complainant.

[5] The Crown’s objection is based on an assertion that the defence should have put this theory to the complainant on his cross-examination in accordance with the rule in Browne v. Dunn, (1893), 6R 67 (H.L.).

[6] At the conclusion of argument by counsel, I advised them orally of my decision and advised that I would provide an instruction to the jury as requested by the Crown if these assertions were advanced by the defence. I also advised that I would provide further written reasons for my decision. These are those reasons.

Background

[7] In his evidence at trial, the complainant testified about the sexual activities which he says occurred between himself and the defendant. He testified that during the course of an alleged relationship, his parents had become suspicious about his relationship with the accused. His mother and father questioned him about this. He initially told his parents that nothing had happened. Later he told his mother that sexual activity, including intercourse, had occurred. His mother contacted the child’s father and the police were then notified.

[8] In his evidence at trial, the complainant described the sexual relationship, which he says occurred with the defendant between October 2011 and April 2012.

[9] Initially during the course of the argument, it was not entirely clear what theory the defence would be pursuing in connection with the complainant’s evidence. In the end, however, counsel advised that the defence would be pursuing, inter alia, two theories as to why the complainant lied in giving his evidence to the court. These two theories are as follows:

(a) It is asserted that the complainant lied to his mother and father about having sex with the complainant in order to stop his parents asking questions as to what had occurred. It is clear that initially the complainant denied all allegations of any sexual activity after his parents became suspicious. Sometime later, however, he told his mother that he had indeed had a sexual relationship with the defendant.

(b) The defence intends to suggest that the complainant lied about having a sexual relationship as a means of getting attention.

Position of the Crown

[10] The Crown asserts that the two theories set out above should have been put to the complainant in his cross-examination, but this did not occur. As a result, the Crown alleges a violation of the rule in Browne v. Dunn. The Crown accepts that the defence should be able to cross-examine the father on these issues and to pursue the theories, but that an instruction should be given to the jury. The Crown objected to the witness being recalled for further cross examination.

The Defence Position

[11] Having reviewed the record of the complainant’s cross-examination, the defence conceded during the course of argument that the complainant should have been cross-examined on the two issues set out above. The defence acknowledged that this cross-examination was required by the rule in Browne v. Dunn and was not covered in the complainant’s cross-examination. The defence argues, however, that any unfairness to the complainant can be remedied by recalling the witness so that the questions can be put to the complainant and thereby give the complainant an opportunity to respond.

Rule in Browne v. Dunn

[12] In my view, the defendant properly concedes that the cross-examination of the complainant violated the rule in Browne v. Dunn.

[13] In R. v. Dexter, 2013 ONCA 744, the Ontario Court of Appeal noted that the rule in Browne v. Dunn is not merely a procedural rule; it is a rule of trial fairness. It stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is still in the witness box. The rule is designed to prevent a witness from being “ambushed”. As noted by the court,

The rule is also a rule of common sense. By enabling the trial judge to observe and assess the witness when he or she is confronted with contradictory evidence and given an opportunity to explain his or her position, the rule promotes the accuracy of the fact finding process. In doing so, it enhances public confidence in the justice system.

[14] In “The Law of Evidence” (6th Edition) by David Paciocco and Lee Stuesser, the rule is summarized as follows,

A party who intends to impeach an opponent’s witness must direct the witness’s attention to that fact by appropriate questions during cross-examination. This is a matter of fairness to the witness. If the cross-examiner fails to do so, there is no fixed consequence; the effect depends upon the circumstances of each case. The Court should first see if the witness can be recalled. If that is not possible or appropriate, the weight of the contradictory evidence or submission may be lessened, or such evidence may be rejected in favour of the testimony of the opponent’s witness.

[15] The defence attempted to draw a distinction from the situation where contradictory evidence is going to be elicited from another witness as opposed to the situation where an allegation is going to be made in argument. I have concluded that the rule is broad enough to capture the latter category as well. This is reflected by one of the examples which is given by Paciocco and Stuesser in their text, and which is described as follows,

Three Crown witnesses testify that they were sexually assaulted in a similar manner by the accused. In closing argument, defence counsel suggests that three witnesses colluded. The suggestion of collusion was never put to any of the witnesses.

[16] In the present case, the defence has made it clear that it intends to argue at the end of the case the two theories set out above. Whether this position is advanced through the attempted introduction of contradictory evidence by way of cross-examination of the father or whether it is intended to assert this by way of submissions to the jury at the conclusion of the evidence, I have concluded that fairness dictates that the complainant should have been put on notice of the allegations and allowed to respond and provide an explanation. This is because the issues are very significant in the context of this case and go to the heart of whether the complainant is telling the truth. The importance of this factor is highlighted by the decision of the Ontario Court of Appeal in R. v. Paris, 2000 17031 (ON CA), [2000] O.J. No. 4687. In that case, the court quotes with approval, the text from Professor Mewett, Witnesses, 2nd Edition (1999), who states,

…The cost is how much credence a fact finder will give to evidence that is introduced for the first time after the witness whose testimony is now being questioned has finished testifying and who no longer has an opportunity to tell his or her side of the story. As such, it may be unwise not to cross-examine an opposing witness when he or she is on the stand if it is intended to contradict that witness’s evidence …. The trier of fact may well wonder why there was no cross-examination, and take that into account in determining what weight to give to the contradictory testimony.

[17] I conclude, therefore, that the failure to cross-examine the complainant on the two theories being advanced by the defence was a very significant omission which goes to the heart of whether the witness is telling the truth.

Should the Witness be Called for Further Cross-Examination or Should an Instruction be Given to the Jury About the Defence Allegations?

[18] While the defence concedes that the allegations in issue should have been put to the complainant in cross-examination, it also argues that any unfairness can be addressed by recalling the complainant and allowing him to respond and provide an explanation. It is acknowledged by both parties that the complainant is available for cross-examination.

[19] In considering this issue, I am guided by the comments of the Court of Appeal in R. v. McNeill, (2000), 2000 4897 (ON CA), 144 CCC (3d) 551. In that decision, the court considers available remedies and states,

In cases such as this, where the concern lies in a witness’s inability to present his or her side of the story, it seems to me that the first option worth exploring is whether the witness is available for recall. If so, then assuming the trial judge is otherwise satisfied, after weighing the pros and cons, that recall is appropriate, the aggrieved party can either take up the opportunity or decline it. If the opportunity is declined, then, in my view, no special instruction to the jury is required beyond the normal instruction that the jury is entitled to believe all, part or none of a witness’s evidence, regardless of whether the evidence is uncontradicted.

[20] The court goes on to state that where it is impossible or highly impractical to have the witness recalled or where the judge otherwise determines that a recall is inappropriate, it should be left to the trial judge to decide whether special instructions should be given to the jury. If one is warranted, then the jury should be told that in assessing the weight to be given to the uncontradicted evidence, they may properly take into account the fact that the opposing witness was not questioned about it. The jury should also be told that they may take this into account in assessing the credibility of the opposing witness.

[21] I have concluded that this is not an appropriate case to compel the complainant to re-attend for further cross-examination.

[22] The complainant is a vulnerable witness. At the time of the events in question he was eleven years old. He is currently fourteen. This court granted an order which was not opposed under s.486.2(1) which provided that the complainant would testify from another room via video-link. His evidence was given over a period of three days. I agree with the Crown’s position that to compel the complainant, who is a vulnerable witness, to re-attend to face further cross-examination would subject him to an unreasonable burden.

[23] In addition, it will difficult to explain to the jury why this witness is being recalled without highlighting the significance of the complainant’s evidence on the issues which will follow on the two issues in question. There is, therefore, a significant risk that the jury will give this evidence disproportionate attention.

[24] No other remedy, other than recalling the witness or an instruction to the jury, has been suggested by either party. I have concluded that, in considering the pros and cons of recalling the complainant to face further cross-examination, the balance favours providing an instruction to the jury. This remedy allows the defence to advance its theory and to pursue the cross-examination which it wishes to conduct of the father. It also allows the defence to adduce further evidence on these issues, if it elects to do so. On the other hand, an instruction to the jury will allow them to consider the fact that the witness did not have an opportunity specifically to respond to these assertions. Counsel will, of course, have an opportunity to review my draft charge to the jury on these issues and I will receive further submissions from counsel with respect to the proposed instruction to the jury.

Justice M.K. McKelvey

Released: April 14, 2015