R. v. Faris, 2015 ONSC 774
COURT FILE NO.: 13-1854
DATE: 2015/02/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
AHMED FARIS
Applicant
Bruce Lee-Shanok, for the Crown
Norm Boxall, for the Applicant
HEARD: February 2, 2015 at Ottawa
RULING ON APPLICATION
PHILLIPS J.
[1] This is an application brought at the outset of trial to determine the propriety of the accused cross‑examining the complainant with respect to whether he has engaged in adulterous affairs other than the one which contextualizes the specific charges before this Court.
[2] Defense counsel asserts that questions about the complainant’s prior relationships are probative with respect to whether others had the same motive to injure the complainant as the accused allegedly had. Moreover, defense argues that questions relating to the complainant’s promiscuity and defiance of the boundaries of matrimony bear on his character and are thus probative with respect to his credibility.
[3] The Crown resists questioning in the area on the basis that motive alone is insufficiently probative of anything. Equally, the Crown argues that unless otherwise relevant a person’s sexual history has little to do with his credibility as a witness. In fact, introducing extrinsic evidence relating to the complainant’s relationships would run afoul of the collateral fact rule.
The Facts
[4] It would be fair to say that prior to February 26, 2013, the complainant and the accused became known to one another. Apparently, in March 2012 the complainant engaged in a sexual relationship with the accused’s wife. Thereafter, upon suspecting the affair, the accused began contacting the complainant asking to meet. Eventually, a meeting occurred during which the accused threatened the complainant’s life and otherwise warned him of consequences should he continue to engage in the adultery.
[5] In spite of this threat, the complainant continued his involvement with the accused’s wife.
[6] During the early morning of February 26, 2013, the complainant was asleep in his bed. Three masked men, one armed with a bat, entered his home and severely beat him, breaking his wrists, fingers and shattering his elbow. Before leaving, one of the assailants said: “Remember me?” The complainant recognized the voice as that of the accused.
The Law
(a) Evidence of third‑party suspects
[7] I agree that the leading judicial pronouncement on this issue is the decision of Martin J.A. in R. v. McMillan (1975), 1975 43 (ON CA), 23 C.C.C. (2d) 160 (Ont. C.A.), aff’d (1977), 1977 19 (SCC), 33 C.C.C. (2d) 360 (S.C.C.) where it was confirmed that the defense of the existence of a third-party suspect is indeed available under our law:
I take it to be self-evident that if A is charged with the murder of X, then A is entitled by way of defense, to adduce evidence to prove that B, not A, murdered X … A may prove that B murdered X either by direct or circumstantial evidence.
Evidence that a third person had a motive to commit the murder with which the accused is charged, or had made threats against the deceased, is commonly admitted on this principle. Evidence directed to prove that the crime was committed by a third person, rather than the accused, must, of course, meet the test of relevancy and must have sufficient probative value to justify its reception. Consequently, the courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value….
[8] When assessing probative value, it is useful to keep in mind that the connection between the “third person” and the crime charged must involve more than merely the presence of motive. As MacPherson J.A. put it in R. v. Shchavinsky (2000), 2000 16877 (ON CA), 148 C.C.C. (3d) 400 (Ont. C.A.) at para. 45:
The trial judge reviewed McMillan, Arcangioli and other authorities and said:
These cases state that before such evidence can be proffered there must be a link between the third party suspect and the crime charged. Such a link, in my view, must be evidentially based, rather than simply motive based.
In my view, this statement of legal principle flowing from the case law is correct.
(b) Sexual activity as relevant to character and credibility
[9] Borins J. aptly outlined the proper scope of character impeachment during cross‑examination in R. v. Rowbotham (No.5) (1977) 1977 3351 (ON SC), 2 C.R. (3d) 293 (Ont. Ct. G.S.P.) at paras. 8-9:
The credibility of a witness is generally tested by probing his means of knowledge, opportunity of observation, reasons for recollection or belief, experience, powers of memory and perception and any special circumstances affecting his competency to speak to the particular case. A cross-examination touching any or all of these matters will, of necessity, flow from the testimony given in examination in chief. However, in addition, a witness may upon cross-examination be asked any question concerning his antecedents, associations or mode of life which, although irrelevant to the testimony given in chief or to any issue in the case, would be likely to discredit his testimony or degrade his character….
However, the fact that the rules of evidence provide or permit one to put in issue the credibility of a witness by means of a cross examination the purpose of which is to impeach his character does not mean that the cross-examiner is given carte blanche to raise any and every occurrence in the life of the witness which may be seen as reflecting badly upon his character. As I have stated, the principle of relevancy applies as well to cross-examination as to examination in chief. It is to be remembered that at the forefront of a cross-examination designed to impeach character is the credibility of the witness. This is the legal norm that establishes the permissible limits or relevancy of a cross-examination. Thus, the trial judge has the discretion to excuse and answer when the truth of the matter suggested would not, in his opinion, affect the credibility of the witness as to the subject matter of his testimony….
Analysis
[10] In my view, the central issue for the Court to decide is whether the proposed questioning is more probative than prejudicial. While I appreciate that significant latitude ought to be extended to any cross-examiner, evidence sought to be admitted via cross-examination must still conform to the rules of admissibility.
[11] I find the probative value of questions relating to whether the complainant has engaged in adulterous affairs with other women to be very low. On the facts as described, the notion that such behavior gives rise to alternate suspects is pure speculation. The mere possibility of alternative suspects does not amount to evidence of same. As such, there is an absence of evidentiary connection between the questions about the adulterous behaviour and the desired inference of alternate suspects said to arise from them. On the other side of the equation, questioning on the subject of other affairs with other women is prejudicial in that it will distract from the relevant issues and cause confusion and undue time consumption. It seems to me that inquiry into the complainant’s adulterous history runs a serious risk of turning the trial into an investigation of irrelevant facts. Ultimately, I find that the prejudicial effect of questioning the complainant on his romantic and sexual affairs outweighs any probative value to be gained from that information.
[12] I also find the probative value with respect to questions about the complainant’s promiscuity and disregard for monogamy and marriage to be lower than the prejudicial effect of engaging in such inquiry. Such questions strike me as a tangent unconnected from the actual issues relevant to this trial, and in particular from assessment of the credibility of the witness. Simply put, I do not see much connection between decision‑making in sexual affairs and truth telling in court. Sexual behaviour is so multi‑faceted and subjective that it does not lend itself to useful objective review. The prejudicial effect of such questions is high. Inquiry into the witness’ sexual mores would be a time‑consuming infringement into privacy that would have very little, if any, upside.
Conclusion
[13] I conclude that cross‑examination shall not occur with respect to other extramarital affairs or sexual activities engaged in by the complainant. Questioning in that regard is more prejudicial than probative.
Mr. Justice Kevin B. Phillips
Released: February 3, 2015
CITATION: R. v. Faris, 2015 ONSC 774
COURT FILE NO.: 13-1854
DATE: 2015/02/03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
AHMED FARIS
Applicant
RULING ON APPLICATION
Phillips J.
Released: February 3, 2015