CITATION: R. v. Thomas, 2017 ONSC 7023

COURT FILE: SCA(P) 1627/16

DATE: 2017 11 23

ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

B E T W E E N:

HER MAJESTY THE QUEEN

A. I. Singh, for the Respondent

Respondent

• and -

ANDRIAN THOMAS

M.C. Halfyard, B. Vandebeek, for the Appellant

Appellant

HEARD: November 14, 2017, at Brampton

REASONS FOR JUDGMENT

[on appeal from conviction by Kastner J. on January 15, 2016]

HILL J.

INTRODUCTION

[1] After a trial, Andrian Thomas was convicted of two counts of assaulting N.W., a previous domestic partner.

[2] At trial, the prosecution called as witnesses N.W. (the complainant) and Peel Regional Police Service (PRPS) Constable Ted Misev who investigated one of the assault complaints. The appellant testified on his own behalf.

[3] At trial, the complainant testified that she was assaulted by the appellant in October 2014. In his evidence, the appellant denied the assault allegation. In their respective testimonial presentations, the complainant and the appellant agreed that, on March 13, 2015, they argued. The principals gave different accounts of the cause of the argument and the circumstances of a physical confrontation between them. The complainant maintained that she was assaulted by the appellant, while the appellant testified that he was assaulted by the complainant.

[4] The appellant appeals against conviction raising a single ground of appeal that the trial judge erred in restricting defence cross-examination of the complainant. It is submitted that the trial court’s limitation of cross-examination was founded on misapplication of the law resulting in material interference with the appellant’s ability to make full answer and defence in terms of defending the case to meet. A new trial is sought by way of remedy.

FACTUAL OVERVIEW

Background

[5] From 2009 to 2015, the complainant and the appellant had an intimate relationship. The couple had a son, M., born September 7, 2013.

[6] In 2014, the complainant resided in Brampton in her mother’s house along with her mother and M. In 2015, a tenant resided in a basement apartment.

[7] As a 25-year-old, N.W. testified at trial that a friend of her mother and godfather of M., L.R. (R.), occasionally stayed over with her mother at the Brampton residence. The complainant believed that R. was about 49 years of age and had been a friend of her mother for about 14 years.

The October 2014 Assault Allegation

[8] In her in-chief evidence, the complainant informed the trial court that the appellant began accusing her of infidelity questioning whether he was in fact M.’s father:

Q. Did he ever question [M.’s] paternity?

A. Yes.

Q. …And when was that?

A. Before he was born, after he was born, and when he got mad.

[9] The complainant testified in-chief that at about midnight on a day in October 2014, in her home, when she was alone except for her son who was asleep, the appellant again accused her of “cheating on him” with R.. When the appellant wanted to know if R. had been coming over, she told him, “No”. When the appellant persisted in this line of questioning, and she maintained her answer, he hit her in the mouth with a closed fist saying that she was lying to him. She had not assaulted or threatened the appellant. She began to cry. She did not contact the police as she had “no marks” on her face to confirm her account that she had been assaulted.

[10] There was no formal custody agreement between M.’s parents. In cross-examination of the complainant, she stated that the appellant was free to come to her home “any time he wants” to see their son. The complainant maintained that because she did not trust the appellant, she did not permit M. to visit the appellant’s home. According to the complainant, her lack of trust was based on his aggression and yelling at the boy.

[11] In his in-chief testimony, the appellant stated that he had no argument with the complainant in October 2014. In cross-examination, the appellant stated that he did not accuse the complainant in October 2014 of cheating on him or question her as to whether R. had been coming to the house. The appellant testified that he at no point hit the complainant.

The March 13, 2015 Assault Allegation

[12] On March 13, 2015, after midnight, the appellant went to the complainant’s home. She was home alone.

[13] The complainant testified that, at about 2:00 a.m., the appellant phoned her asking if he could come over and talk. Although their relationship was rocky, she thought nothing of it “because we normally talk”.

[14] In cross-examination, the complainant gave this evidence:

Q. …Does he normally sleep on the couch?

A. Yes.

Q. So when he comes over, that’s the place where he usually sleeps?

A. Yes.

[15] The appellant testified that he had a good relationship with the complainant. In the appellant’s view, in referring to the complainant and to M., she “always … want to have both of us, all three of us always together”. On his evidence, the complainant called him to come over. He agreed, “[t]o spend time with her” before starting his employment shift at 5:00 a.m.

[16] The complainant testified that the appellant arrived shortly after 2:00 a.m. Almost immediately she was accused of sleeping with R. When she denied the accusation, the appellant delivered a backhand to the left side of her face. She began to cry. She told the appellant to leave. He initially agreed and headed for the front door but then charged back toward her, pinning her against a wall in the livingroom and choking her with two hands with slight pressure. The appellant’s breath smelled of alcohol – he seemed drunk. She was then hit and punched in the face as the accusation continued that she was sleeping with R. She did not strike the appellant on this or any previous occasion.

[17] According to the complainant, she fell to the floor near the stairs where she was hit, slapped and punched, and kicked by the appellant who was not wearing shoes. At a point, the appellant sat on her. She tried unsuccessfully to wriggle free. When the appellant put his hand over her mouth and nose, she felt she was being suffocated. She was terrified. When she screamed, she was ordered to be quiet or he would hurt M.

[18] The complainant recalled that, during the struggle, she scratched the appellant and elbowed him in the face in order to break free. When she then went to the kitchen to put ice on her face, the appellant sprayed cold water on her from a sink faucet.

[19] The complainant testified that after she returned to the livingroom, she was against questioned by the appellant, accused of lying and encouraged to tell him the truth. He still seemed angry. She denied that anything had happened between her and R. The appellant again became aggressive moving beside her on the couch and rolling his hand into a fist. She cried. Wanting him out of the house, she answered “okay”.

[20] In his evidence, the appellant testified that he arrived at the complainant’s residence at about 1:00 a.m. He had not consumed alcohol. The complainant was upset with him from the outset. After he arrived the complainant received a phonecall from her mother causing her to become really mad, in his view because of phonecalls he had made earlier to her mother and to R. They were not “really fighting about the custody battle”. At a point, the complainant let “fly her fist” and kicks attacking him. He tried to retreat but the complainant came at him again. “[E]verything happened so fact”. She slipped and fell on her own. He then came toward her telling her to calm down but, in the witness’ words:

… she still fired away, and I held her as much as I can. She punch me, elbow me, kicks me, knee-jerk me.

She knee-jerked me, elbowed me, scratched me. And I held her until she was calm down.

[21] According to the appellant, the side of his face was “scratched up”. He at no point made a threat to M. After a few minutes of conflict, he managed to calm the complainant down by 1:47 a.m.

[22] The appellant informed the trial court that, “[p]hysical violence is never okay”. He never beat up the complainant. There were times in their relationship when the complainant physically attacked him and when that happened, in his words, “anytime she hits me I take it”.

[23] The complainant testified that after the physical confrontation, and her false acknowledgement of sleeping with R., the appellant cried, professed his love for her and their son, and claimed that he would not do anything to hurt them. The appellant asked her not to tell her family or the police what had happened. There was conflicting evidence as to the circumstances of N.W. texting the appellant’s workplace to state that he would be absent on March 13.

[24] At trial, as discussed below, the principals provided differing accounts of what occurred throughout the entirety of the early morning hours they spent together on March 13, 2015.

[25] To the complainant’s recall, the appellant fell “slightly asleep” on the couch before 7:00 a.m. for a few minutes before leaving her residence at about 7:00 a.m. There had been no discussions about Family Court or the appellant seeking greater access rights to M. She had bruising on her face and a cut inside her mouth. She had no other visible injuries to her body. She felt scared and in shock. The complainant phoned the police at about 7:30 p.m.

[26] PRPS Const. Misev attended the complainant’s residence at 8:18 p.m. on March 13, 2015. He observed that the complainant’s right cheek was swollen, there was significant swelling and bruising under her right eye, and a small cut to the inside portion of her lower lip. The officer’s opinion was that the bruising had occurred within the prior 24 hours. The complainant’s demeanour appeared to be that she “was a bit shocked”. The officer had photos taken of the complainant’s face.

[27] To the complainant’s recall, she sought some medical attention on March 14, 2015.

[28] The appellant testified that he left the complainant’s home at about 7:00 a.m. When he left, the complainant did not have the bruising to her face depicted in the police photos. Before he left, he told N.W. that he would be seeking greater access rights regarding M. and not coming over to the house as, in his words, “I don’t like some of the stuff that’s going on over there”.

[29] The appellant acknowledged in his evidence that he had suspicions that he might not be M.’s father “because of the circumstances that was going on over the house and the situation”. The witness informed the court that he treated the boy as his son – “I love [N.W.], and I love my son”.

LIMITS PLACED ON CROSS-EXAMINATION OF THE COMPLAINANT

[30] As is apparent from the summary of the evidence described to this point, there were conflicting accounts at trial in particular as to whether there was ongoing strife between the appellant and the complainant relating to the complainant being involved in intimate relations with R., the cause of the March 13, 2015 argument, the identity of the aggressor that day during their physical confrontation, and what events transpired during the hours spent together on March 13.

[31] Three questions into his cross-examination of the complainant, defence counsel (not Mr. Halfyard or Ms. Vandebeek) inquired into the state of the relationship between the complainant and the appellant to which he received this response: “It was fine until 2012 when he started the accusations”. Asked to what accusations she was referring, the witness, in her words, stated that the appellant “believe I was cheating on him” because her mother’s friend, R., would “come over and sometimes stay”.

[32] Twenty-one questions into cross-examination, this exchange occurred:

Q. I’m going to suggest to you that the reason why these accusations start in 2012 is because you disclosed to Mr. Thomas at that time that you were sexually assaulted by [R.]. Is that correct?

A. No.

[33] At this point, Crown counsel (not Mr. Singh) began to object, “Your Honour…”, before the trial judge interjected:

You can’t ask that... Why do you say that that’s admissible?

[34] This inquiry led defence counsel into a lengthy exchange with the trial judge described more particularly at paras. 35 to 38 below. Defence counsel would ultimately advance these reasons for his line of questioning:

(1) a Browne & Dunn concern to provide the complainant an opportunity to respond to the appellant’s anticipated evidence that the couple’s “arguments” and the cause of why they were angry “on that day” (counsel did not specify whether the reference was to a day in Oct. 2014 or March 13, 2015)

(2) “… I was making a suggestion to her that that was, that, given that she disclosed to him in 2012, that’s where the accusation started”.

[35] Turning to the back-and-forth of the exchange, after defence counsel raised an evidentiary/procedural issue, (“It’s under Browne v. Dunn because that’s what Mr. Thomas is going to say”), the trial judge stated:

THE COURT: What about Section 276? I’ll prohibit you asking that without an application. Do you want to make submissions on that?

DEFENCE COUNSEL: If Your Honour likes, sure.

(emphasis added)

[36] Before defence counsel could elaborate upon his position, the court confirmed that the prosecutor was objecting:

THE COURT: [Crown counsel] you’re saying you object. What’s the basis of your objection?

CROWN COUNSEL: That there is no 276 application before this court. There’s no basis to believe that that question has any relevance to the assault charges against Mr. Thomas.

THE COURT: Yes.

(emphasis added)

[37] At this point, defence counsel submitted that, “I don’t believe Section 276 would apply in these circumstances”. Asked “Why?” by the court, counsel responded:

Because the reason why I’m putting that to the witness and that suggestion is because that’s basically the heart of the arguments of why he was angry, and she was angry on that day. And also just based on what Mr. Thomas is gonna say when he takes the stand. So if I don’t ask then my friend’s gonna –

[38] The court interjected:

THE COURT: Well if Your Honour takes the stand and indicates that he thought that he was being sexually active with someone else, that’s his thought. How is that relevant to whether or not he assaulted her?[^1]

DEFENCE COUNSEL: Well without me telling you exactly what Mr. Thomas is going to say it will be hard for Your Honour to understand.

THE COURT: Right. Well that’s the whole point of 276. You have to establish relevance.

DEFENCE COUNSEL: Right.

THE COURT: Your obligation to establish relevance with an application.

DEFENCE COUNSEL: I said the reason I was asking ’cause under Browne vs Dunn Mr. Thomas is gonna say that that was the reason why they were both angry.

THE COURT: Yes. Browne and Dunn is a common-law case, however Section 276 is legislation. So why don’t you look at it and tell me why you think that 276 doesn’t apply. It doesn’t directly relate to charges under Section 266, not the legislation. But clearly the cases do. Seaboyer would still apply, whether or not 276 specifically engages Section 266 allegations. Is there a way that you can deal with this topic without infringing that?

DEFENCE COUNSEL: That’s what I was trying to do. I understand your point Your Honour, and that’s what I was trying to do. Because as I said that’s what Mr. Thomas is going to say what the heart of the argument was about ---

THE COURT: You could ask if he told her that. If he made mention of that. You can’t ask if that happened or if it’s true.

DEFENCE COUNSEL: I think that’s where the issue, (inaudible) Your Honour might have thought I was asking that. I wasn’t asking that. What I had asked the witness was -

THE COURT: What you did ask ----

DEFENCE COUNSEL: - a suggestion.

THE COURT: You did ask because you asked her whether she disclosed a sexual assault. That engages Seaboyer. You can ask if he said something to her about it. So that would show his state of mind. You can’t ask her if she disclosed something else unrelated to this prosecution.

DEFENCE COUNSEL: Right. Well I was making a suggestion to her that that was, that, given that she disclosed that to him in 2012, that’s where the accusation started.

THE COURT: No, you can’t do that.

DEFENCE COUNSEL: Okay.

THE COURT: There is a way for you to cover this area that doesn’t infringe it.

DEFENCE COUNSEL: Okay.

THE COURT: You cannot ask this witness about anything about prior alleged sexual assault.

DEFENCE COUNSEL: Okay. Thank you.

(emphasis added)

[39] When cross-examined as to the duration of the March 13, 2015 assault she was alleging, the complainant gave this evidence:

Q. So would you agree with me that the incident as you described it lasted maybe about five minutes?

A. Pardon?

Q. Would you agree with me that the incident lasted about five minutes?

A. No.

Q. The assault. How long did it last for approximately?

A. Five hours.

Q. The assault lasted for five hours?

A. Yes. He kept going and going and going.

Q. No, I don’t want you to describe the incident again. I understand ---

THE COURT: Don’t interrupt her. She’s gonna answer your questions. So the question basically is, is how did it last that long? Not to repeat everything that happened, but just indicate why it lasted that long.

A. ’Cause he kept going, he kept going and going. He wouldn’t stop.

(emphasis added)

[40] A short time later, counsel returned to the issue of the duration of ongoing strife between the principals, asking the complainant these questions:

Q. I’m gonna suggest to you further that after about ten minutes you calmed down. Would you agree with me?

A. No.

Q. I’m gonna suggest to you that after that point –

THE COURT: Sorry, just a little slower. ’Cause I have to get it as well. After how much time?

DEFENCE COUNSEL: I’m gonna suggest to you that after that ten minutes you guys had a normal evening together, night together. Would you agree with me?

A. No.

Q. And I’m gonna suggest to you that at that time you guys had sex. Would you agree with me?

A. No.

THE COURT: [Defence counsel], I think you’re not very familiar with Seaboyer. Be careful what you ask.

DEFENCE COUNSEL: Thank Your Honour.

Q. I’m gonna suggest to you that this incident did not last five hours as you said. But it actually only lasted ten minutes. Would you agree with me?

A. No.

Q. I’m gonna suggest to you that the reason why you’re saying it was five hours was because you’re concerned that you would look less credible or less believable given that you stayed, you and Mr. Thomas stayed together ’til 7 a.m. that morning. Would you agree with me?

A. No.

(emphasis added)

[41] In his in-chief testimony, in describing how he was able to calm down the complainant, the witness gave this evidence:

A. After she got calm, me and her were on the couch. We did the male and female interaction, and then after that ----

THE COURT: Okay, just a moment.

CROWN COUNSEL: Your Honour, there have been repeated references in the course of this trial to there not being any sort of application with respect to any sexual activity. It’s not relevant to the charge that this court is hearing. And I repeat my earlier objection.

THE COURT: Yes. I indicated [defence counsel] that if you persisted in this line, that you needed an application. And I needed to hear submissions on it, and yet you’re still trying to do this through your client.

DEFENCE COUNSEL: I’m not trying to do anything Your Honour. I’m just trying to ----

THE COURT: All right. Well you should be telling him not to talk about that.

DEFENCE COUNSEL: I did over the lunch break.

THE COURT: All right. I’m totally disregarding any adduced evidence or allegations about anything to do with sexual behaviour between the two of them, given my comments earlier it’s not relevant. And more prejudicial than probative for either side actually.

DEFENCE COUNSEL: Your Honour can I explain to my client what you just advised him, just so he won’t do it again.

THE COURT: Well you can.

Q. So Mr. Thomas what Her Honour just said is that you can’t talk about or mention having sex with her or anybody having any kind of sexual relations. So please don’t do that again.

A. Okay, sorry I ---

Q. No, no, no, I just wanted to remind you.

A. Sorry about that.

(emphasis added)

[42] Shortly after the court’s ruling, still in his in-chief testimony, the appellant gave this evidence:

Q. Did you notice if she went to sleep at all?

A. Yeah. Before that, we both fell asleep on the couch…

[43] When asked, again in-chief, why the complainant was angry with him on March 13, the appellant made efforts, in light of the trial judge’s ruling, to self-edit his response:

A. She was angry because I call her mom and [R.], and I don’t like [R.] being around our son because of certain situation that she ---

THE COURT: Sorry you don’t like being around what?

A. I don’t like [R.] being around my son because of certain situation that she have brought to my attention.

Q. And was she angry about anything else?

A. No, that’s it. Just the calling. The calling and the custody thing, maybe that’s it.

(emphasis added)

[44] A similar situation occurred in the prosecutor’s cross-examination of the appellant:

Q. I’m going to suggest that she opens her front door and you come in and start accusing her of sleeping with [R.]?

A. I never accused [N.W.] of sleeping with [R.]. Whatever {N.W.] have confided in me that’s been going on since she was a young girl. That’s the only reason why I don’t like [R.] around our son.

Q. I’m gonna suggest to you that you told her that she was lying, and that she had cheated on you. Would you agree with that?

A. No. Cause there’s no reason for me to tell her that she’s cheating. We only have the one situation, and it’s just with [R.]. And the only reason I just don’t like [R.] around my son because of the situation that she said to me, that’s it.

Q. I’m going to suggest to you that you then had a conversation on the couch where you said you were going to ask the same question again with respect to her cheating on you?

A. After we got on the couch we didn’t ask no question. It was basically we, she calmed down. I calmed down. We were both sitting down. And we spent time together and I fall asleep.

(emphasis added)

TRIAL COURT’S REASONS FOR JUDGMENT

[45] For reasons articulated in his judgment, and applying a W.D. analytical approach, the trial court found the complainant’s account to be credible and rejected the appellant’s evidence.

[46] In summarizing the complainant’s evidence, the trial judge included references to that witness’ evidence that the appellant had accused her of sleeping with R. beginning in 2012, during the October 14, 2014 argument, and again on March 13, 2015.

[47] In summarizing the appellant’s testimony relating to the March 2015 allegation, the trial judge noted that the witness testified that the complainant was upset because he had phoned her mother and R. and he did not like R. being around his son. The court summarized the appellant’s evidence that he fell asleep by 2:30 a.m. on that date, with no reference to the witness’ evidence respecting sexual relations after the complainant had calmed down.

[48] As to whether the complainant’s evidence regarding the March 13 matter should be interpreted as an allegation of ongoing assaultive behaviour on the appellant’s part lasting a number of hours, the court stated:

As to the complainant’s evidence, [defence counsel] says that the March assault she says the beating lasted about five hours, from 2 a.m. to 7 a.m., and was adamant on the point even when pushed. The injuries were not consistent with a beating for five hours. On that point she was never asked in-chief how long the argument took, and I’ve reviewed what she said in cross examination, which is that he kept going and going. She did not indicate that the beating took long, more likely her expression and articulation is the entire incident took that long, which included numerous arguments about the paternity of the child.

(emphasis added)

[49] The trial judge concluded that, on March 13, 2015, the matter of child custody did not come up during the fight between the complainant and the appellant:

I believe [N.W.] that it never came up about access of this baby or custody of the baby during this fight. The fight was over paternity and cheating only.

[50] As to the court’s conclusion as to the cause of the March 13 argument, the trial judge also stated:

As to the suggestion in his evidence that she was angry because he called her mother, [N.W.’s] evidence denies that suggestion, and further as a motive for [the] attack, that catalyst does not accord with the nature of the assault. Mr. Thomas described the level of anger inconsistent with what Mr. Thomas said was the reason for such an over reaction. If he would leave on her request she submits it is hard to accept that she would engage in what was described as the telephone call to her mother. In addition he had said that the original fight was because of a call he made to her mother. What he originally said was that she was yelling and screaming and jumping up to hit him. Another time he said that he pushed her before she hit him, and then he is saying after the altercation there was a phone call by the mother when she was by the stairs, and that made her more angry and there was a secondary attack. At the beginning [N.W.] said that she was accused of sleeping around and back handed and tells him to get out, and he starts to walk and charge back. That seems to be credible. If she was so angry with him the Crown says, why would she invite him over at 1 a.m.? And it was clearly the defendant’s evidence that she was angry by the time he got there.

I make the following conclusions.

…admittedly on the question of the paternity of the child, it was a likely bone of contention between them, which admittedly aggravated him and made him angry.

When the mother called, which was not mentioned before, that she was not angry until her mother called during the argument does not make sense because he said she attacked him previously. And if she was not angry until then, why would she attack him? He also testified the relationship was still on as a booty call and a hang around. But she said it was rocky and over since he accused her of infidelity and questioned paternity. That makes more sense since he even admitted at the present that he still questions the paternity.

It does[n’t] even make sense that he goes over at 2 a.m. when his son is not there, and when he has to be at work at 5 a.m.

(emphasis added)

POSITION OF THE PARTIES

The Appellant

[51] The appellant’s position at trial was that no assault took place in October 2014. There were no arguments involving the appellant claiming that N.W. was cheating on him. The defence acknowledged a physical confrontation between N.W. and the appellant occurred on March 13, 2015. N.W. was the aggressor angered over phonecalls by the appellant to R. and to her mother. The appellant’s role was to avoid being hit by N.W. – he did not strike her but only sought to calm her down. N.W. was likely injured in the struggle and when she fell. Her injuries were accidentally sustained at that time with the bruises only becoming clearly visible some time later, or injuries were subsequently self-inflicted after the appellant left the residence in order to support a criminal charge and in turn to secure an advantage in any Family Court proceeding.

[52] On the appellant’s behalf, it is submitted in the circumstances of the non-sexual crimes charged in this case, that the trial judge erred in ruling that Seaboyer and s. 276 of the Criminal Code had any application to restricting cross-examination of the complainant upon sexual subject matter which was not only relevant to full answer and defence but also being introduced without implicating the “twin myths”.

[53] Mr. Halfyard submitted that the trial court’s ruling of prejudice to the defence as a rationale for excluding evidence the defence sought to introduce was, apart from no evidence of such prejudice, a legal misstatement of the balance required before exclusion of relevant defence evidence – that such evidence “substantially” outstrip its probative value.

[54] The appellant’s factum, in underlining the materiality of the excluded evidence, states at paras. 20 and 24:

20. … As the Court noted in Seaboyer: “the denial of the right to call evidence and challenge evidence is tantamount” to the denial of the right to full answer and defence. Both of these areas were impugned by the trial judge’s approach to this issue. The defence attempted to challenge the complainant’s narrative in cross-examination and the defence attempted to elicit evidence from the Appellant. As such, the trial judge erred in restricting the defence ability to 1) flesh out the underlying motivations for the arguments between the Appellant and the complainant, which was part of the narrative and central to the Appellant’s defence, and 2) to elicit evidence that the Appellant and complainant had sexual intercourse on the night of the assault – making it unlikely that the assault occurred in the manner she described, and account for some of the five-hour time period that the complainant alleged passed before the appellant left the residence. While the complainant maintained the assault was continuous during this period, it was the Appellant’s evidence that the complainant calmed down after he restrain[ed] her, they had sex and he slept for some of this period before she contacted his work to advise them that he would not be attending that day.

21. Whether [R.] sexually assaulted the complainant in the past, which in turn created a situation where the Appellant did not want [R.] around his child, and had precipitated a phone call earlier that day where the Appellant spoke to the mother and [R.], that led to the argument, in no way engages any “twin myths” reasoning. However, it could have supported the Appellant’s narrative that the complainant was the aggressor, and had a reason to be upset with him. Because this was not a sexual assault, there was no issue about the complainant’s willingness to consent and her being the victim of prior sexual abuse had no bearing on whether he deliberately beat her up or not. In fact, implicit in the Crown’s theory was that the assault was about the Appellant’s claim that she had committed consensual infidelity with [R.], which adds to the unfairness that the defence was not allowed to explore the area. While s. 276 only applies to the accused, if the Crown introduces evidence of prior sexual activity, it is open to the defence to cross-examine on it.

(emphasis of original)

The Crown

[55] At trial, the prosecution maintained that the appellant was jealous, possessive and untrusting of the complainant, and dubious that M. was his son. The appellant twice assaulted N.W. in the course of accusations of infidelity.

[56] On behalf of the respondent, Mr. Singh submitted that the trial judge understood that, while s. 276 of the Criminal Code did not specifically apply in a common assault prosecution, common law rules of evidence nevertheless required a proponent of evidence to establish relevance within the context of current reality.

[57] It is argued that, in any instance of eliciting facts as to a witness’ prior sexual history, a trial court must exercise a gatekeeper discretion, given the private and potentially embarrassing subject matter, to curtail cross examination “so that it remains within reasonable limits and does not become more distracting than informative”. It was submitted by the Crown that in seeking to assess whether “the value of the evidence outweighs its cost”, a court must ensure that proffered evidence is not for a purpose perpetuating “out-dated stereotypes or sexist myths that would be clearly irrelevant”.

[58] In oral submissions, Mr. Singh acknowledged that, in curtailing defence questioning, the trial judge misdescribed her admissibility concern as a s. 276 issue. While counsel agreed that logical relevance is a very modest threshold, the failure of defence counsel at trial, though given opportunities, to articulate the precise relevance of facts touching upon the complainant’s sexual history, left the court to “assume” that counsel was pursuing twin myth inferences.

[59] It was further submitted that while reading and rereading the transcript may now make obvious the relevance of the proposed questioning by the defence, with two “salient points”, this was not so for the trial judge.

[60] The Crown further submitted that should this court conclude that the trial court erred in law in its approach to the evidence it excluded, that no substantial wrong or miscarriage resulted.

ANALYSIS

Governing Principles

[61] Cross-examination is the ultimate means of demonstrating truth and testing witness veracity – such questioning “is fundamental to providing a fair trial to an accused”: R. v. Osolin (1994), 1993 CanLII 54 (SCC), 86 C.C.C. (3d) 481 (S.C.C.), at pp. 516-518. Cross-examination of prosecution witnesses is a constitutional right protected by ss. 7 and 11(d) of the Charter: R. v. John, 2017 ONCA 622, at para. 52.

[62] An accused’s right of cross-examination is not, however, absolute. “A specific incident of the trial judge’s trial management power is the ability to control cross-examinations”: John, at para. 52. There is no right to cross-examine a witness simply to abuse, humiliate, intimidate, disparage, or unfairly attack her dignity. As to the court’s discretion to control, and in appropriate circumstances, limit, cross-examination, see: R. v. Pires (2005), 2005 SCC 66, 201 C.C.C. (3d) 449 (S.C.C.), at p. 465; R. v. Windibank, 2012 ONCA 237, at paras. 14-16; R. v. Cameron (2006), 2006 CanLII 16078 (ON CA), 208 C.C.C. (3d) 481 (Ont. C.A.), at p. 491; R. v. Valley (1986), 1986 CanLII 4609 (ON CA), 26 C.C.C. 207 (Ont. C.A.), at pp. 230-1 (leave to appeal refused [1986] 1 S.C.R. xiii); R. v. Proverbs (1983), 1983 CanLII 3547 (ON CA), 9 C.C.C. (3d) 249 (Ont. C.A.), at p. 262; R. v. Mack, 2012 ABCA 42, at para. 58; R. v. Laliberte, 1877 CanLII 24 (SCC), [1877] 1 S.C.R. 117, at p. 130.

[63] Cross-examination must of course confine itself within “proper limits of relevancy and probative value”: R. v. Ertmoed (2005), 2006 BCCA 365, 211 C.C.C. (3d) 49 (B.C.C.A.), at p. 71; R. v. Lyttle (2004), 2004 SCC 5, 180 C.C.C. (3d) 476 (S.C.C.), at paras. 44-45 (counsel bound “by the rules of relevancy”).

[64] “[W]here credibility is the central issue at trial, the importance of cross-examination becomes even more critical”: John, at para. 53.

[65] Not infrequently in a criminal trial, in response to objection from an opposing party, or in answer to inquiry by the court acting on its own motion to control the process, a cross-examiner may be called upon to identify the relevance of a line of questioning: John, at para. 59 (“… where a proper foundation has been laid, the cross-examination may be permitted”); R. v. McDonald, 2017 ONCA 568, at para. 68 (“… the importance that the proponent identify the issue(s) to which the evidence is relevant”); R. v. Savojipour (2006), 2006 CanLII 3458 (ON CA), 205 C.C.C. (3d) 533 (Ont. C.A.), at para. 25 (“Absent any evidence to relate the incidents to some relevant theory, they could not meet the test of relevance or materiality”).

[66] Accordingly, when called upon to do so, counsel is obliged to justify a proposed course of cross-examination (R. v. Osman, [1996] O.J. No. 3540 (C.A.), at para. 1; 681210 Alberta Ltd. v. Hunter, 2012 ABCA 83, at para. 30), failing which the court has authority to direct counsel to “get on with some other subject”: Osman, at para. 1.

[67] Section 276(1) of the Criminal Code prescribes, in very particular circumstances, an exclusionary rule of evidence relating to a complainant’s prior sexual history:

276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

The legislation does not purport to preclude admission of evidence touching upon the prior sexual conduct of a complainant in a s. 266 common assault prosecution: R. v. M.T., 2012 ONCA 511, at paras. 29-30. That said, the illegitimate and discredited stereotypical twin myths targetted by s. 276 as irrelevant in sex crime cases will generally be equally irrelevant in other prosecutions where the traditional common law rules of evidence govern: see R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, at paras. 32, 37; R. v. L.S., 2017 ONCA 685, at para. 45.

[68] Justice fundamentally includes “society’s interest in getting to the truth of the charges as well as the interest of both society and the accused in a fair process”: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 150; R. v. Seaboyer (1991), 1991 CanLII 76 (SCC), 66 C.C.C. (3d) 321 (S.C.C.), at p. 389. Wrongful convictions and acquittals both stand as miscarriages of justice.

[69] “It is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues”: Seaboyer, at p. 389.

[70] Evidence is generally admissible where it advances in some degree the inquiry, in the sense of logical connection to a material issue in the trial. This may involve evidence “logically relevant to an available defence”: R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 45.

[71] Logical relevance arises where the proffered evidence, as a matter of logic, common sense and human experience, has some tendency to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence: R. v. J. (J.L.) (2000), 2000 SCC 51, 148 C.C.C. (3d) 487 (S.C.C.), at p. 507; McDonald, at para. 66; M.T., at para. 37; R. v. Arp (1998), 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 27; R. v. Pilon, 2009 ONCA 248, at paras. 32-33; R. v. Watson (1996), 108 C.C.C. (3d) (Ont. C.A.), at para. 33.

[72] Relevance must, of course, be assessed, not in a vacuum or “in the abstract” (R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 73), but in the context of the entirety of the evidence in a criminal trial, known and anticipated, as well the issues in the case, and the respective positions of the prosecution and the defence: R. v. Clarke (1998), 1998 CanLII 14604 (ON CA), 129 C.C.C. (3d) 1 (Ont. C.A.), at pp. 12-13; Watson, at para. 30; Arp, at para. 38; R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 (S.C.C.), at p. 218.

[73] “[E]verything which is probative should be received, unless its exclusion can be justified on some other ground”: Seaboyer, at pp. 389-390. While there is no minimum probative value required for evidence to be logically relevant (R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at p. 715 per La Forest J. dissenting in the result; R. v. Morris, 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, pp. 191-2; Clarke, at p. 12), it must be recognized that probative value “will depend in part on the strength of the connection or nexus” between the proffered evidence and the factual matter to which it is said to relate – the evidence must have a sufficient connection beyond mere conjecture or speculation: Grant, at paras. 38, 41.

[74] Not all evidence which may be said to be logically relevant at a threshold level is admissible (Grant, at para. 19) as such evidence, where not otherwise subject to an exclusionary rule, falls to be assessed as well on a legal relevance standard engaging the court’s discretionary, and highly fact-driven, gatekeeper role to consider applicable counter-balancing factors such as (1) danger of arousing the triers’ emotions of prejudice, hostility or sympathy, (2) the prospect of the admitted evidence and responding evidence creating a side issue or satellite litigation unduly distracting the jury from the main issues for its determination, (3) the risk that the evidence and any counter proof will consume an undue amount of time unduly protracting the trial, and (4) the danger of unfair surprise of the opposite party unprepared to meet the evidence in question: Seaboyer, at p. 390; Grant, at para. 61.

[75] Where the legal relevance balancing is undertaken in the context of defence-led evidence, the court asks itself whether any prejudicial effects of the proffered evidence substantially outweigh the potential probative value of the evidence: Grant, at para. 41.

[76] In the context of defence-led evidence having logical relevance, bearing in mind the presumption of innocence and the importance to full answer and defence of letting an accused “confirm and strengthen the case for his innocence” (R. v. Bishop, 2013 NUCA 2, at para. 48 (notice of discontinuance filed [2013] S.C.C.A. No. 76)), courts have understandably been cautious in restricting the power of an accused to call evidence in his or her defence and reluctant to exclude even tenuous defence evidence: Seaboyer, at pp. 388-391; R. v. Arcangioli 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, at p. 141; Bishop, at para. 51.

[77] Where it is determined that defence cross-examination has been improperly limited, it falls to be determined whether the error of the trial court occasioned a substantial wrong or miscarriage of justice. In R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53, the court stated:

As this Court has repeatedly asserted, the curative proviso can only be applied where there is no "reasonable possibility that the verdict would have been different had the error ... not been made" (R. v. Bevan, 1993 CanLII 101 (SCC), [1993] 2 S.C.R. 599, at p. 617, aff'd in R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28). Flowing from this principle, this Court affirmed in Khan that there are two situations where the use of s. 686(1)(b)(iii) is appropriate: (1) where the error is harmless or trivial; or (2) where the evidence is so overwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict (paras. 29-31).

[78] While the impact of improper limitation of defence questioning will vary case to case, an instance of incurable error respecting curtailment of defence cross-examination occurred in R. v. P.G., 2017 ONCA 351, with the court observing at para. 18:

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.

Was the Appellant’s Right to Full Answer and Defence Unfairly Restricted?

[79] While the focus of the appellant’s submissions was the submitted improper curtailment of trial counsel’s cross-examination of the complainant, the effects of the limits imposed by the trial judge bled into the examination in-chief of the appellant insofar as his ability to fully explain his position on two critical issues:

(1) his understanding of the nature of any sexual relationship between the complainant and R. – consensual, or perceived consensual, sexual relations founding persistent anger on the part of the appellant that N.W. had been unfaithful to him, or, reported sexual abuse of N.W. by R. giving rise to the appellant’s ongoing concerns of a sexual predator being around his son

(2) the intensity and duration of the physical conflict on March 13, 2015 – a course of physical abuse lasting 5 hours, or, a brief argument and physical confrontation of a few minutes’ duration with the majority of the relevant 5-hour period occupied by calm, consensual sexual relations and sleep.

[80] It was the prosecution which first raised, in the complainant’s evidence in-chief, the subject of her having sexual relations with someone other than the appellant. This was in the context of N.W.’s assertion that the appellant repeatedly accused her of cheating by engaging in consensual sexual relations with R.

[81] Defence counsel, having received information from his client that there were no cheating allegations about R., but rather that in 2012 the complainant disclosed that she had been sexually abused by R., a long-time friend of N.W.’s mother, and that as a result the appellant was troubled by the presence of R. around his son, counsel sought to challenge the complainant’s evidence as to the foundation of arguments or conflict between N.W. and the appellant relating to R.

[82] There was nothing about the text of defence counsel’s question (para. 32 above) introducing the theme of a contradictory reason for conflict between N.W. and the appellant which necessarily implicated the twin myths. Challenged by the court to explain how the complainant’s answer could be admissible, trial counsel for the appellant sought to explain to the court that he felt obliged to confront the complainant during her testimony with contradictory evidence anticipated to come later in the trial from the appellant – a Browne v. Dunn concern.

[83] Counsel was immediately confronted by the court and the prosecution with an alleged failure to have filed a s. 276 Criminal Code application before questioning the complainant about prior sexual history subject matter.

[84] Trial counsel for the appellant informed the court that his client would testify that anger on the part of the complainant and the appellant, relevant to the case, related to N.W.’s disclosure to the appellant of being sexually abused by R. and that s. 276 would not apply in these circumstances. Could defence counsel, in responding to the court, have been more articulate and detailed as to the basis of admissibility for this approach? Yes. In this regard:

(1) rather than using the prosecutor’s language of ‘accusation’ in his question, counsel more accurately could have referred to ‘arguments’

(2) counsel did not clearly explain how his initial question relating to disclosure from N.W. to his client was the origin of the appellant’s purported knowledge of N.W.’s sexual abuse by R. which in turn became the basis of his concern about M.’s wellbeing

(3) as to counsel’s concern about disclosing “exactly” what the appellant was going to say, counsel, when questioned is obliged to justify relevance when challenged which, in particular circumstances, may necessitate a degree of reciprocal disclosure and disclosure of defence strategy – defence counsel did not ask to have the witness temporarily excluded from the courtroom in order to make more fulsome submissions.

[85] Be this as it may, whether the quality of the assistance provided to the court by defence counsel was less than might be hoped for, and whether this was contributed to by such matters as inexperience, deliberate ambiguity because he was speaking in the witness’ presence, or some other cause, the role of the trial court itself cannot be discounted in truly understanding the full context of how the defence became the beneficiary of the court’s concluding ruling (“You cannot ask this witness about prior sexual assault”). In this regard, these facts fall to be considered:

(1) the court’s initial intervention, “You can’t ask that…”, was made without the benefit of submissions and appears to have operated from an assumption that counsel was unfamiliar with the rules of evidence

(2) apart from Crown counsel objecting to the lack of a s. 276 application before the court, the trial judge stated on four occasions that s. 276 of the Criminal Code prohibited the defence questioning, and that an “application”, it seems under s. 276.1, was necessary, followed by the statement that Seaboyer would in any event apply in a common assault prosecution

(3) on two occasions in his attempts to further explain his position, defence counsel was cut off by the court

(4) the trial judge did not exclude the complainant from the courtroom to allow for a more extensive exchange about relevance and the defence approach to the case.

[86] Section 276 of the Criminal Code was inapplicable to a s. 266 prosecution. No “application” was required before questioning N.W. There was no clear basis for presuming that defence counsel was improperly pursuing any stereotypical discredited myth in questioning the complainant.

[87] Given the court’s ruling, in his evidence, the appellant was reduced to speaking in code-like terms about a “certain situation” disclosed to him by the complainant about R. as to the reason why he did not want R. around M. (see paras. 43 and 44 above). The ambiguity of the appellant’s testimony was such as to leave his intended message virtually meaningless and without context.

[88] In the result, what remained, through the complainant’s evidence, was the prosecution position that a cause of arguments between the principals after 2012 were the appellant’s accusations that N.W. had been unfaithful to him – a version of events ultimately accepted by the court – while the appellant’s position, that strife existed because he did not want R., who he believed to be a sexual predator, being permitted to visit and stay at N.W.’s house where his son resided, was effectively excluded from consideration. In these circumstances, it is beside the point whether the appellant’s evidence would ultimately be found to be credible that it was not a cheating accusation made by him but his concerns about R. which led to arguments including on March 13, 2015 causing N.W. to be the aggressor because of his phonecalls to R. and to N.W.’s mother. The trial court’s approach of restricting defence questioning of the principal witnesses in this subject area materially impacted upon the appellant’s ability to make full answer and defence – a limitation to which the curative proviso cannot reasonably have application.

[89] Turning to the second area of impugned curtailment of questioning by the defence at trial, also acknowledged by the respondent on appeal to be relevant to a fair determination of the case, that being the duration of the alleged assault on March 13, 2015, as is evident from the excerpt of cross-examination of the complainant reproduced at para. 39 above, not once, but twice, the complainant maintained that the assault lasted “five hours”.

[90] In an effort to establish the inaccuracy of this assertion by N.W., and to highlight an instance of exaggeration on the witness’ part, defence counsel sought to establish that the relevant 5-hour block of time at her residence on March 13, 2015 had different constituent elements or activities including consensual sexual relations with the appellant.

[91] When this suggestion was put to N.W., and she answered “No”, counsel was admonished for not being “very familiar with Seaboyer”. At this point in the trial, it appears that the question and the complainant’s answer remained as part of the evidence.

[92] When, in his in-chief evidence, the appellant stated that he and N.W. “did the male and female interaction”, an apparent attempt to make reference to sexual relations, the prosecution and the trial judge again raised the need for an application and implicitly a s. 276.1 application or equivalent. When defence counsel attempted to advance an explanation, “I’m just trying to…”, he was cut off by the court leading to a ruling that “any adduced evidence” about sexual behaviour between the principals would be disregarded – apparently eliminating as well the complainant’s earlier response of “No”.

[93] The defence questioning was clearly relevant to the complainant’s characterization of the entire length of the appellant’s presence on March 13 as including assaultive conduct, when the appellant had other explanations for the time period reducing the duration of the physical confrontation as well as explaining the circumstances of his remaining in the home after the argument. There was no requirement for an application and neither s. 276 of the Code nor the twin myths discussed in Seaboyer were implicated in the questioning sought to be undertaken by the defence. In addition, in ruling that the evidence being excluded was more prejudicial than probative for both the Crown and the defence, the trial court erred in purporting to exclude defence evidence without determining that the prejudice, whatever it may have been, substantially outweighed the probative value of admitting the subject evidence.

[94] Subsequent to the court’s ruling, when the appellant was cross-examined as to his account of what occurred after N.W. calmed down on March 13, 2015, in light of the court’s ruling, he was forced to dilute his response to “we spent time together and I fall asleep”.

[95] Related to the unjustified limitation of defence questioning about the fact of consensual sexual relations on the March 13 date were two observations in the trial court’s reasons for judgment:

(1) the complainant did not indicate that the beating lasted 5 hours

(2) the appellant testified that the relationship was “still on as a booty call and a hang around” basis.

[96] On the first point, N.W. twice acknowledged that the assault persisted for 5 hours. On the second point, there was no evidence of this sort from the appellant beyond his effort to adduce evidence of what occurred between he and the complainant on March 13 – evidence excluded by the court and which the defence was prevented from fully exploring with the complainant and the appellant.

[97] Again, the error was not minor, and in the context of a credibility case, it cannot be said that the verdict would not have been different but for the limitations imposed on defence questioning.

CONCLUSION

[98] The appeal is allowed. The convictions are set aside and a new trial ordered on both charges. The appellant is ordered to appear in Courtroom #104 of the courthouse in Brampton on December 6, 2017 at 9:00 a.m. to set a new date for trial. If the appellant fails to attend, the Crown may apply for a warrant to effect his attendance.

[99] It is ordered that the clerk of the appeal court comply with Rule 40.23(1) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) as to distribution of these Reasons for Judgment.

Hill J.

DATE: November 23, 2017

CITATION: R. v. Thomas, 2017 ONSC 7023

COURT FILE: SCA(P) 1627/16

DATE: 2017 11 23

ONTARIO

SUPERIOR COURT OF JUSTICE

(Summary Conviction Appeal Court)

RE: R. v. ANDRIAN THOMAS

COUNSEL: I. Singh, for the Respondent

M.C. Halfyard, B. Vandebeek, for the Appellant

REASONS FOR JUDGMENT

[on appeal from conviction by Kastner J. on January 15, 2016]

Hill J.

DATE: November 23, 2017

[^1]: While the first part of the trial court’s statement quoted above is directly from the certified transcript, it would appear that either a correct rendition, or the intention of the trial judge, was to state: "Well, if your client takes the stand and indicates that he thought that she was being sexually active with someone else…"