R. v. Polanco, 2017 ONSC 3765

CITATION: R. v. Polanco, 2017 ONSC 3765

COURT FILE NO.: CR-16-40000083-00AP

DATE: 20170616

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL

TORONTO REGION

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

EMARK ROBERT POLANCO Appellant

Tanya M. Kranjc, for the Respondent

Matthew R. Gourlay, for the Appellant

HEARD: April 20, 2017

K.P. WRIGHT J.

Introduction

[1] The Appellant, Emark Robert Polanco, was convicted of nine counts of assault (including five counts of assault with a weapon and one count of assault causing bodily harm) and one count of theft, after a 12 day trial in the Ontario Court of Justice.

[2] The Appellant appeals his conviction and submits that the trial judge erred in law as follows:

(1) Improperly pre-screening and curtailing cross-examination on photographs defence intended to put to the complainant;

(2) Subjecting the defence evidence to a more onerous level of scrutiny than the evidence of the Crown;

(3) Improperly relying on the content of prior consistent statements of the complainant, Nancy Lee, in order to find the complainant’s evidence had been corroborated.

[3] The Appellant also appeals the sentence imposed on the basis that it was demonstrably unfit in all the circumstances of the case.

Evidence at Trial

[4] What follows is a very brief overview of the evidence. I will make further reference to the evidence in my analysis when required.

[5] The complainant, Nancy Lee, was the main Crown witness. She testified that she was in an intimate relationship with the Appellant for approximately eight months in 2013. She alleged that shortly after their relationship began, the Appellant became increasingly jealous, controlling, and eventually violent. She described an escalating series of assaults which included the use of a wooden brush, a belt, and a candle as weapons.

[6] Vicky Ho was the main witness for the defence at trial. She testified that she had been the Appellant’s girlfriend since 2010 and that Nancy Lee was a third wheel. She testified that the three of them were friends and spent a great deal of time together over the course of 2013, including going on vacation and living together for a short period of time. She testified that she never observed the Appellant assault Nancy Lee.

Analysis

Issue: The Trial Judge Wrongly Pre-Screened and Curtailed Cross-Examination on the Photographs.

[7] On the second day of cross-examination, defence counsel attempted to show the complainant a photograph. Crown Counsel objected to the introduction of this photo on the basis of relevance. Defence counsel told the court that this was one out of approximately 115 photographs that he wanted to put to the complainant to potentially contradict her evidence regarding her visible injuries and to undermine her evidence that as the relationship progressed, she was increasingly isolated and controlled by the Appellant. Crown Counsel then took the position that he objected to all photographs being tendered on the basis of relevance.

[8] As a result, the trial judge engaged in an all-day vetting procedure and inquiry into the relevance of each photograph. At the end of the day, approximately 45 photographs were excluded out of approximately 173. It is important to note that an unknown portion of the 173 photographs related to the Appellant’s surgery and were not the subject of the vetting process. There were also a number of photographs where the complainant was nude or partially nude that were dealt with separately and ultimately made sealed exhibits.

[9] The Appellant argues that the trial judge fell into error by intervening in the absence of any valid objection.

[10] The Respondent takes the position that the initial objection by the trial Crown on the basis of relevance required the trial judge to make an evidentiary determination on each photograph.

[11] The general rule of evidence is that, subject to certain conditions, all relevant evidence is admissible.

R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] 1 S.C.R. 1378.

[12] Relevance is assessed in the context of the entire case and the positions of counsel. Evidence that as a matter of logic and common sense will help resolve an issue at trial, is to be considered relevant, material and prima facie admissible.

R. v. Cloutier, 1979 CanLII 25 (SCC), [1979] 2 S.C.R. 709.

R. v. While, 2011 SCC 13, [2011] 1S.C.R. 433.

[13] Trial judges have the discretion to exclude evidence which is otherwise admissible in certain circumstances. Admissible defence evidence may only be excluded where its probative value is substantially outweighed by its prejudicial effect.

[14] I question the validity of Crown Counsel’s blanket relevancy objection prior to viewing any of the photographs. It seems to me that it was the volume of photographs, as opposed to their content, that created concern and triggered the inquiry. Be that as it may, I find no fault with the trial judge’s decision to vet the more than 100 photographs in advance of their introduction. The process was clearly intended to be efficient and focused.

[15] It is the vetting procedure followed by the trial judge that is problematic.

[16] At the outset of the vetting process, defence counsel clearly and repeatedly submitted that the photographs were being tendered to demonstrate an absence of injury and to portray the dynamics of the relationship between the complainant and the accused. They were being introduced for a dual purpose of equal importance. Despite these repeated assertions, the trial judge only assessed relevancy in relation to injury. She erred in failing to assess relevancy in relation to the relation to the relationship narrative.

[17] The inquiry proceeded quite rapidly from that point forward, sometimes looking at individual photos and often looking at groups of photos. When presented with a group of photos, the trial judge would ask the defence to pick which one in the group he wanted to rely upon. I am mindful that the trial judge retains the discretion to curtail cross-examination that has become repetitive, abusive or otherwise improper or unnecessary. That was not the case here. The cross- examination had not yet begun and the finding of repetitiveness was premature.

[18] Often the trial judge gave no reason for not allowing a photo and simply said “next”. There were times when the trial judge indicated that a particular photo was not relevant because it did not depict an injury or lack of injury, again without any regard for the defence position vis-a-vis the relationship narrative.

[19] I am mindful that during this vetting process, defence counsel appeared to be in agreement with the trial judge’s selections. In the context of the voir dire, I find this was not an abandonment of their original position. In my view, defence had clearly communicated their concerns and position regarding the admissibility of the photographs and the nature of the process, and were left with little option but to participate in the process.

[20] The vetting procedure lacked consistency and was often confusing. It appears that different standards and tests were being applied to different photographs. On one occasion, in relation to one photograph, the trial judge found that the probative value did not outweigh the prejudicial effect. This is not the correct test. As stated in Seaboyer, the correct test that the “prejudice must substantially outweigh the value of evidence before a judge can exclude evidence relevant to a defence allowed by law.” Nowhere in the judgment does the trial judge avert to the correct test.

R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] S.C.J. No. 62 at para. 49.

[21] It appears that the trial judge’s intervention was ostensibly intended to be a time saving measure, to keep the trial on track and moving forward. A laudable goal to be sure, the flaw, however, was in the execution. I know first-hand the pressure on trial judges to ensure that matters are advancing in a timely fashion. We, as trial judges, however, must be vigilant to ensure that efficiency does not undermine the integrity of the process. It is a difficult task when you are in the thick of it. Even the most experienced judge with the best of intentions can lose sight of this fundamental principle when immersed in a lengthy and onerous trial.

[22] In this case, the error prevented the defence from cross-examining the complainant on approximately 45 photographs.

Curative Proviso

[23] The question becomes, does the error amount to a miscarriage of justice or is this an appropriate situation for the curative proviso?

[24] The Supreme Court of Canada described the proviso as follows in R. v. Mayuran, 2012 SCC 31, [2012] 2 S.C.R. 162. at para. 45:

The curative provision can be applied in two situations: where the error is so harmless or minor that it could not have had any impact on the verdict; and where even if the error is not minor, the evidence against the accused is so overwhelming that any other verdict would have been impossible to obtain. (R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716 (S.C.C.), at para. 34; R. v. Trochyn, 2007 SCC 6, [2007] 1 S.C.R. 239 (S.C.C.), at para. 81; R. v. Khan (S.C.C.), 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 26).

[25] The Ontario Court of Appeal recently provided further guidance regarding when the curative proviso may be applied. In R. v. G. (P.) the appellant was convicted of three counts of sexual assault in the Ontario Court of Justice. At trial, the judge limited the defence’s ability to cross-examine the complainant on her psychiatric diagnosis. The thrust of the defence was that the complaint was fabricated, and thus credibility was a central issue.

R. v. G. (P.), 2017 ONCA 351, 2017 CarswellOnt 6486.

[26] The appellant appealed to the Superior Court. The summary conviction appeal judge (SCAJ) found that while the trial judge erred in limiting the cross-examination, the error did not cause a substantial wrong or miscarriage of justice and thus applied the curative proviso and dismissed the appeal.

[27] Writing for a unanimous court, MacFarland J.A. found that the SCAJ erred in applying the curative proviso. The Court held that a SCAJ may only apply the curative proviso where it is explicitly raised by the Crown, and this was not done. MacFarland J.A. went on to find that in any event, in light of the credibility issue, this case was not appropriate for the curative proviso:

The thrust of the defence position was that the complainant fabricated the allegations. Her credibility was the key issue. To preclude proper cross-examination in a key area was a serious error on the trial judge’s part. The error impeded the appellant’s ability to make a full answer and defence. Even if the Crown had raised the proviso in argument, this would not have been an appropriate case for its application. The error was not a minor one.

R. v. G. (P.), at para. 18.

[28] The case before me similarly turned on the credibility of the complainant.

[29] There is no question about the important role cross-examination plays in our criminal justice system. Cross-examination is all the more crucial to the accused’s ability to make full answer and defence when credibility, as in this case, is the central issue at trial.

R. v. Anandmalik (1984), 6 O.A.C. 143 (C.A.)

[30] On my count, defence counsel introduced approximately 100 photographs in the course of cross-examination. Some unknown portion of those images were of the Appellant’s surgery. Six images were of the complainant nude and marked as a sealed exhibit. Approximately 45 photographs were excluded.

[31] I do not have access to the 45 excluded photographs. They were not made lettered exhibits at trial. They were not included in the materials filed on appeal. In that regard, the evidentiary record is deficient. The descriptions of the images provided during the vetting process were confusing and of no assistance to me in assessing relevance. I am persuaded that many of the excluded images were relationship/narrative based. The trial judge discounted the value of the images that defence relied on at trial. The trial judge was concerned that there was no evidence as to how many other photos actually existed, how the photographs shown were selected, and whether or not they were representative of the whole. Ultimately, the trial judge placed no weight on the defence photos and found that they did not contradict the complainant’s evidence.

[32] Even without knowing the specific content of the excluded photographs, I am persuaded that the photographs were a key component of the defence and their exclusion limited the Appellant’s ability to make full answer and defence. I am mindful that some of the photos had a repetitive quality to them. That, however, does not make them necessarily less relevant or of less value to the cross-examiner. There may be subtle differences that are exposed in the course of cross-examination. Even seeing the same image from different angles can trigger different and inconsistent responses from a witness. The value of an image reaches far beyond what is on the printed page. It is the reaction and interpretation of the viewer/witness that often drives the cross-examination and determines relevance.

[33] The evidence against the Appellant at trial was, in my view, far from overwhelming; the case turned almost entirely on the credibility of the complainant. The improper exclusion of photographs limited the Appellant’s right to fully cross-examine the complainant which amounts to a serious error.

[34] Accordingly, I find that it would be inappropriate in these circumstances to apply the curative proviso.

[35] Appeal allowed, conviction set aside and a new trial ordered

K.P. Wright J.

Released: June 16, 2017

CITATION: R. v. Polanco, 2017 ONSC 376 COURT FILE NO.: CR-16-40000083-00AP DATE: 20170616

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent

– and –

EMARK ROBERT POLANCO Appellant

REASONS FOR DECISION

K.P. WRIGHT, J.

Released: June 16, 2017