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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 2423

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 8 and 9, 2015

REASONS FOR RULING ON EVIDENCE

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information that may identify the person described in this ruling as the complainant, his/her parents or witnesses, may not be published, broadcasted or transmitted in any manner.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 offenses 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. The complainant has given evidence at trial. The Crown subsequently called another witness, Ms. D.K., who testified that she observed sexual activity between the complainant and the defendant. During the cross-examination of Ms. D.K., she was questioned about a charge she faced earlier of obstructing a court proceeding, which is unrelated to the issues in this case. This charge was subsequently withdrawn. Following completion of the defence cross-examination, the Crown raised objections with respect to the questioning of Ms. D.K. on that criminal charge. I provided brief oral reasons of my decision during the trial and advised that I would provide further written reasons for my decision. These are those reasons.

Nature of the Questioning of Ms. D.K. Regarding the Charge of Obstructing a Court Proceeding

[2] During the course of the cross-examination, defence counsel suggested to the witness that she had been accused of lying. He then raised the issue about a criminal charge which she had faced earlier for obstructing a court proceeding. The witness responded by stating that this matter involved her giving evidence on two different occasions about a date on which an event had occurred. It appeared that in her evidence on the two occasions, she had given conflicting dates. Ms. D.K. stated that it had been a lapse of memory on her part and that the charges had gone away. She further stated that, as part of the arrangements, she had agreed to perform some community service and make a charitable donation. Defence counsel pursued the line of inquiry on this issue and suggested to the witness that people don’t get charged and arrested for “lapses in memory”. It was further suggested to the witness that she did not take the case all the way to trial, saying that it was a lapse of memory and that she should never have been charged. The witness was further questioned about why she had to do community service if it was simply a lapse of memory.

[3] The clear inference from the questions posed by the defence to the witness is that there had to be some substance to the allegations made against her. Otherwise, she would not have been charged or agreed to a disposition which involved community service and a charitable donation.

Position of the Crown

[4] The Crown conceded that she had delayed in making her objection until the end of the cross-examination of the witness. She initially had believed that it was appropriate for defence counsel to refer the witness to the criminal charges. However, she argued that the defence questioning went well beyond that by suggesting that only guilty people are charged and that by failing to take the case to trial, the witness had acknowledged her guilt on the charges. The result, the Crown argued, was that an inappropriate impression would be left with the jury that the witness was likely guilty of the charge despite her assertion that there had been no deliberate attempt to mislead the court in the earlier case.

Position of the Defence

[5] The defence acknowledged that, in many cases, the laying of a criminal charge against a witness has no place in cross-examination. However, in this case, the defence maintained that the nature of the charge against the witness went directly to her credibility. In other words, the elements of the offense that she was charged with involved an allegation that she gave false evidence at a legal proceeding. This in turn had a direct bearing on her credibility in this trial. The defence further argued the initiation of the charge was an indication that the police felt there were reasonable grounds for a charge and that the charge was probative of the witness’s credibility at trial.

[6] The defence acknowledged that if there had been an acquittal on the charge, it would constitute clear evidence of the witness’s innocence on the charges. However, in this case, because the charge had been withdrawn, there was no basis to assume that the witness was innocent of the crime charged.

[7] Finally, the defence took the position that they had been prejudiced by the failure of the Crown to object until the completion of the cross-examination. The defence argued that it lost the opportunity to clarify any ambiguity in the witness’s evidence if the jury were given an instruction to disregard the evidence that she had been charged with a criminal offense.

Analysis

[8] I have great difficulty in accepting the defence position that a criminal charge which is subsequently withdrawn would generally carry any probative value about the witness’s credibility. This is tantamount to an argument that where there is smoke, there must be fire. There are many reasons why the Crown may elect to withdraw a charge which include the possibility that a person should not have been charged in the first place. Similarly there may be many reasons why an individual might agree to an undertaking for community service or making a charitable donation as part of a process leading to the withdrawal of a charge. I do not accept that, as a general rule, one can safely assume an accused person acknowledges some element of guilt in agreeing to a withdrawal of a charge or by agreeing to do some community service. On the contrary, our criminal justice system is based on the assumption that an accused is entitled to the presumption of innocence until there has been proof beyond a reasonable doubt of guilt at trial. For the defence to argue that a criminal charge is probative of a witness’s credibility runs contrary to this principle. The defence has not put forward any authority to support its position on this point

[9] In R. v. Gassyt, (1998), 1998 5976 (ON CA), 127 CCC (3d) 546, the Ontario Court of Appeal commented on the effect of a criminal charge and stated that in keeping with the presumption of innocence, the fact that a witness is charged with an offense will generally have no bearing on his or her credibility and cross-examination on that fact will not be permitted. They go on to comment that an exception is recognized in circumstances where a witness may have a motive to favour a party by reason of the outstanding charge and in those circumstances, because the outstanding charge is relevant to credibility, cross-examination on that fact will be permitted. The court refers, for example, to a situation where an outstanding charge can be shown to provide the witness with a motive to favour the prosecution.

[10] The court notes in the Gassyt case that cross-examination on any facts underlying an outstanding charge is a different matter where cross-examination is permitted. In this regard, the court states,

In any case, an ordinary witness, unlike an accused, may be cross-examined on the underlying facts to the extent that those facts may be relevant to the witness’s credibility or to another issue in the trial. This distinction between cross-examination with respect to the existence of charges which have not resulted in a conviction, and cross-examination on the underlying facts of the outstanding charges is made in R. v. Gonzague, (1983), 1983 3541 (ON CA), 4 CCC (3d) 505 at 510-11 (ONT.C.A.):

Clearly, the fact that a person is charged with an offense cannot degrade his character or impair his credibility, but an ordinary witness, unlike an accused, may be cross-examined with respect to misconduct on unrelated matters, which has not resulted in a conviction…. Consequently, counsel was entitled to cross-examine the witness, Charbonneau, on the facts underlying the fifteen charges of fraud in order to impeach his credibility.

[11] From the decision in Gassyt, the following principles emerge with respect to the cross-examination of a non-accused witness:

(a) Generally, cross-examination on an outstanding charge will have no bearing on a witness’s credibility and cross-examination on that fact will not be permitted.

(b) An exception to this rule is recognized in circumstances where the outstanding charge is relevant to the issue of credibility such as in a situation where the witness may have a motive to favour the prosecution by reason of the outstanding charge.

(c) Cross-examination on the facts underlying an outstanding charge is a different matter and an ordinary witness, unlike an accused, may be cross-examined on the underlying facts to the extent that these facts are relevant to the witness’s credibility or to another issue in the trial.

[12] It is apparent that the reasoning in the Gassyt decision was in relation to an outstanding charge. I have considered whether there should be any difference between this situation and the situation where a charge is withdrawn prior to any formal adjudication. In my view, the result should be the same. This conclusion is supported by the decision in R. v. Hoilett, (1991) 1991 7285 (ON CA), 3 O.R (3d) 449. In this case, the Court of Appeal considered the situation where a witness was cross examined on a series of charges which had been withdrawn at the time of the appellant’s trial. The court stated,

In our view, the entire cross-examination was improper, particularly with respect to charges which had been withdrawn, suggesting to the witness that she was “getting off” or had “got off” charges, giving rise to the possible implication that she was guilty of these charges all along. The error in allowing this cross-examination, also the subject of an objection, was compounded by the trial judge’s direction quoted earlier, whereby the witness’s “past experiences with the criminal law system” and earlier “brushes with the law” were left to the jury, without any distinction, as being capable of assisting in the determination of the witness’s credibility

[13] Crown counsel did make me aware of a decision of this court in R. v. Frater, [2008] O.J. No. 5329. This case also dealt with a situation where cross-examination was proposed for a witness who had a number of charges withdrawn. At least on the surface this decision appears to contemplate that cross-examination regarding withdrawn charges under the Youth Criminal Justice Act might be appropriate. However, the precise circumstances of the case are not entirely clear, and in any event, it would appear that the principles laid out in the Gassyt and Hoilett decisions are binding upon me.

[14] In the present case, no foundation has been laid to support a conclusion that any charges against Ms. D.K. provide a motive for her to favour the prosecution. The charges themselves have been withdrawn and there is no reason to believe that she would alter her evidence because of a previous criminal charge which was subsequently withdrawn by the Crown.

Ruling

[15] I find that the questions posed by the defence to the witness on the issue of the charge of obstructing a court proceeding ought not to have been put to the witness on cross-examination. A mid-trial instruction will be provided to the jury advising them that the fact the witness was charged with an offense which was subsequently withdrawn is not evidence which they are entitled to consider in assessing the witness’s character or credibility or the reliability of her evidence. The jury will be instructed that they are entitled to consider the witness’s evidence with respect to the facts underlying the charge.

[16] With respect to the defence position that it may have been prejudiced by the delay of the Crown in raising any objection until the end of the cross-examination, I am granting an order that the defence may have an opportunity through further cross-examination to clarify the witness’s evidence on the facts relating to the charge on the following terms:

(a) This additional cross-examination will be limited to the issues arising out of the Crown’s objection.

(b) Any further cross-examination will be conducted in accordance with these reasons.

(c) If there are any questions or clarifications required with respect to the scope of the continued cross-examination, they will be canvassed with the court prior to the resumption of the cross-examination.

Justice M.K. McKelvey

Released: April 14, 2015