Court File and Parties
COURT FILE NO.: CR-17-737 DATE: 2018 11 26 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN. v. J.D. AND D.B.
BEFORE: Shaw J.
COUNSEL: J. Vlasic, for the Crown H. Doan, for Mr. J.D. T. Wiley, for Ms. D.B.
HEARD: November 22, 2018
Restriction on Publication
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Endorsement
[1] The accused are charged with a number of offences including procuring for the purposes of providing sexual services contrary to s.286.1(1) of the Criminal Code, exercising control, direction or influence contrary to s.286.31 of the Criminal Code, and receiving a financial or other material benefit contrary s.286.2(1) of the Criminal Code.
[2] The Crown proposed to ask one of its witnesses during examination-in-chief if she had given three previous inconsistent statements to the police and why she gave those statements. It was anticipated that the witness would answer that she gave those prior inconsistent statements as she was afraid of the accused. At the time she gave the inconsistent statements this witness was a co-accused. Following those three statements she then gave a fourth statement on August 28, 2018. She has recently pled guilty to one charge and the other charges are outstanding.
[3] The defence objected on the basis that the question about why she gave the prior inconsistent statements is a self-serving question and was in essence oath-helping. The defence position was that those questions should be dealt with on re-examination if the defence chose to cross-examine the witness on the prior statements. The Crown’s position was that it did not want to wait for the witness to be cross-examined on the prior inconsistent statements but wanted to bring it out in-chief, so that it would not appear that the Crown was shielding its witness from these statements. Essentially, the Crown wanted to have the witness acknowledge that she made the prior inconsistent statements upfront and explain why she made those statements.
[4] After making an initial oral ruling I then requested further submissions from counsel and directed their attention to the decision of R v. Pinkus, 1999 ONSC 15054.
[5] In Pinkus, the accused was charged with murder. The Crown called a former girlfriend of the accused as a witness. Her evidence at trial would implicate the accused whereas in prior statements to the police, the witness had maintained that the accused was not involved in the murder. The Crown sought to question her about the prior statements and why she had changed her mind. The accused objected on the basis that the questions was oath-helping and resulted in self-serving evidence that were proper areas for cross-examination. As in this case, the Crown’s position in Pinkus was that it was entitled to present the witness “warts and all”.
[6] Starting at para. McKinnon J. held:
[17] In my opinion, the rule against oath-helping is a sound one and worthy of application in the present case. To permit Mr. Berzins to lead the witness through an explanation as to why she made previous inconsistent statements would inevitably take some of the sting out of the cross-examination.
[18] My reason for saying this is rooted in a belief in the wisdom of the adversary system. It is through the tool of cross-examination that the credibility of a witness is best tested. Cross‑examination is a tried and true method of ascertaining the truth. It has no substitute. If the presumption of innocence is the “golden thread” which weaves the fabric of the criminal law, then it may be said that cross-examination is the needle without which the thread would be of little use. The procedure sought to be adopted by Crown counsel would weaken the effect of the cross-examination and potentially be of diminished value to the trier of fact.
[19] In my opinion, the overriding purpose and intent of the procedure sought to be adopted is to bolster the credibility of the witness. The fact of the previous inconsistent statement does not constitute essential narrative in this case. While Crown counsel is permitted to present witnesses in the best light, and while some latitude is often permitted, it remains a question of where the line is to be drawn on a case-by-case basis. I find the proposed line of questioning to be akin to that which was held to be objectionable in Clarke, (supra), a decision specifically approved by the Supreme Court of Canada in Beland, supra.
[20] While the Crown believes that the witness is now telling the truth, it is for the trier of fact to determine whether that is in fact the case. The trier of fact in this case would not be assisted were the explanation for the change of heart presented in advance of cross‑examination. While Mr. Berzins argues that once explained, the witness can then be cross-examined without restriction, in my view the trier of fact is assisted to a greater degree when the initial questions are asked by the cross-examiner rather than the examiner, particularly in a case such as this where the witness is testifying as to the ultimate issue in the trial, namely an admission of guilt by the accused to a charge of murder.
[7] In R. v. Durrant, 2012 ONSC 6792, Ramsay J. took a different approach and admitted the evidence of the existence of prior inconsistent statements during examination-in-chief. In that case the Crown wanted to ask the witness whether she had previously given inconsistent statements and why she changed her account. Her expected evidence was that she feared the accused. At para. 8 Ramsay J. held:
[8] I agree with Campbell J.’s ruling in Lawrence. Asking a witness about recanting a previous inconsistent statement (or, for that matter, the fact of being charged as an accomplice) does not prove the truthfulness of the witness. The question is not asked for that purpose. It detracts from the truthfulness of the witness. Bringing it out in chief is simply designed to dispel any impression that the Crown was hoping that the jury would not find out. It is perfectly legitimate advocacy. It has nothing to do with the rule against oath-helping. Neither does s.12 of the Canada Evidence Act. As for the explanation, some of it is tied up with the evidence of the witness’s relationship with the accused and will inevitably come out in chief. At certain relevant times the witness was married to the accused. It is also conceded that certain letters sent by the accused to the witness are admissible. Beyond that, the explanation for the previous statements should wait for cross-examination and re-examination, in the usual course. In R. v. Reed (2003), 2003 ONCA 14779, 65 O.R. (3d) 723 (C.A.), the Court heard an appeal from a conviction for second degree murder. In a pre-trial ruling, the trial judge ruled that one of the Crown’s witness could be asked in-chief about her prior inconsistent statement and would be permitted to explain the inconsistent statement even though her explanation would result in the disclosure of crimes and other forms of disreputable conduct committed by the appellant. The inconsistencies in her prior statement were linked to the appellant’s abuse of conduct towards her.
[8] R v. Reed (2003), 2003 ONCA 14779, 65 O.R. (3d) 723 (C.A.) was decided four years after Pinkus. The court did not refer to Pinkus in its reasons. In Reed, a witness had given prior inconsistent statements about the accused. The Crown brought a pre-trial motion seeking leave to question the witness in-chief about the statements and then call evidence about why she made the statements. This involved evidence from a psychologist and nine confirmatory witnesses. The appeal focused on the nature and length of the evidence given by the expert and not on the actual question being put to the witness during her examination-in-chief. The appellant’s argued that the prejudicial effect of the totality of the body of evidence called to explain why the witness gave the prior inconsistent statement, outweighed its probative value. The Court gave effect to the ground of the appeal only as it related to the scope and extent of the expert’s testimony. Thus, the Court never specifically addressed whether it was appropriate to question the witness during examination-in-chief about the statement, but rather focused on the nature of the evidence called to explain why she made the statement.
[9] I prefer the approach taken by Ramsay, J. in Durrant. Asking the witness about the existence of prior inconsistent statements in-chief does not prove the truthfulness of the witness. Rather, it would have the opposite effect. The Crown’s purpose in asking the witness about those statements is meant to dispel the impression that could be left with the jury that it did not want the jury to know about the statements. It is, as stated in Durrant, a legitimate trial strategy as opposed to an attempt at oath-helping. With respect to the explanation for why those prior statements were made, given the witness’ relationship with the accused, it is anticipated that some of that evidence will be heard in-chief.
[10] As the prior inconsistent statements have not yet been put to the witness, it would be premature to ask her for an explanation of those statements. Furthermore, she may not even be cross-examined on the statements. That is left for the defence to determine when they cross-examine the witness. If she is questioned about the statements, the Crown may then re-examine the witness on why she made the statement. At that point, the jury will have heard the evidence about the statements and it is then properly left to re-examination to question the witness about her explanation for the inconsistent statements.
L. Shaw J.
Date: November 26, 2018
COURT FILE NO.: CR-17-737 DATE: 2018 11 26 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN. v. J.D. AND D.B.
ENDORSEMENT L. Shaw J.