Court File and Parties

BARRIE COURT FILE NO.: CR-18-073 DATE: 20190614 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Stephen Lewis

BEFORE: The Honourable Justice H. Leibovich

COUNSEL: Kristin Smyth, for the Crown Larry Lebovits, for the Defence

HEARD: May 28, 2019

RULING ON CROSS-EXAMINATION OF THE COMPLAINANT

Overview

[1] The accused, Stephen Lewis, was charged with sexual assault. Mr. Lewis sought to cross-examine the complainant with respect to a statement she gave to the police ten years ago regarding an unrelated alleged assault by her then common-law spouse. The Crown opposed cross-examination on the statement on the basis that it was irrelevant and prejudicial. This issue arose on the first day of trial and was addressed at the conclusion of the complainant’s evidence in-chief. I did not allow the proposed cross-examination with reasons to follow. These are the reasons.

Sexual Assault Complaint

[2] At the time of the incident, the complainant was living at her daughter’s house. On April 14, 2017, there was a party at the house and Mr. Lewis was present. Mr. Lewis was known to the complainant as Spike. They had met briefly once or twice before. The complainant testified that Mr. Lewis sexually assaulted her in the bathroom of the home by forcing sexual intercourse on her and by forcing her to perform oral sex on him. The complainant reported the matter to the police on April 27, 2017. She did not want to tell anyone about the incident. In addition, her family had gone through enough trauma as her daughters had been sexually abused by her ex-husband. She testified that she was not sleeping or eating properly. Her friend asked her what was wrong and she told her what happened. Her friend and her ex-boyfriend encouraged her to go to the police. She testified that she went to the police so it would not happen to anyone else.

The Proposed Cross-Examination

[3] The defence filed a transcript of the complainant’s testimony in her common-law spouse’s assault trial. The trial was on February 28, 2008. The incident took place on April 29, 2007. At trial, the complainant testified that she and her spouse had broken up. He arrived at the apartment and tried to take his meat from the freezer. She tried to stop him and she assaulted him. She punched him and bit him and he left. The police arrested her two days later and charged her with assault. The charges were subsequently withdrawn.

[4] The complainant testified that she gave a statement to the police. She testified that she gave a second statement to the police disagreeing with her original statement. The police and the Crown told her that they were only going to rely on her first statement. The original statement was not filed on this application, but she testified at the 2008 trial that she told the police that her common-law spouse pushed and shoved her and this was not true. She testified that she still loved the accused and that she hoped to resume a relationship with him.

The Law

[5] An accused has significant scope in cross-examining a complainant to challenge his or her credibility and reliability, but the scope is not unlimited. The court has the ability to limit cross-examination of a complainant where its prejudicial effect outweighs its probative value: R. v. Meddoui, [1991] 3 S.C.R. 320 (S.C.C.) at 320-21; R. v. M. (J.) (2000), 46 W.C.B. (2d) 532 (Ont. C.A.); R. v. A.R.B. (1998), 41 O.R. (3d) 361 (C.A.), aff’d 2000 SCC 30, [2000] 1 S.C.R. 781.

[6] Prejudice includes not just prejudice to the parties, but to the trial process. Consideration must be given to whether the proposed cross-examination would assist the trier of fact in determining a live issue at trial. Cross-examination of a complainant on an alleged prior false allegation may be allowed, however, only if the defence can show that the prior allegation is indeed false and the prior false allegation shows a pattern of fabrication by the complainant of similar allegations against other men or women, as the case may be: R. v. Riley (1998), 11 O.R. (3d) 151 (C.A.), leave to appeal to S.C.C. refused, [1993] S.C.C.A. No. 26.

[7] The collateral fact rule prohibits the calling of evidence to solely contradict a witness on collateral facts. As noted by the Court of Appeal for Ontario, “[t]he rule seeks to preserve trial efficiency and avoid confusion and distraction by preventing the litigation of issues that have only marginal relevance”: R. v. C.F., 2017 ONCA 480, 349 C.C.C. (3d) 521, at para. 58.

[8] Even where the core issue is credibility one cannot impugn a witness’s credibility by contradicting the witness on matters which are collateral. In A.R.B., at para. 13, the majority of the Court of Appeal for Ontario endorsed the following:

As stated in Phipson, supra, at 12-33:

A party may not, in general, impeach the credit of his opponent's witness by calling witnesses to contradict him as to matters of credit or other collateral matters, and his answers thereon will be conclusive. This rule is not absolute. The test whether a matter is collateral or not is this: "if the answer of a witness is a matter which you would be allowed on your own to prove in evidence - if it had such a connection with the issues, that you would be allowed to give it in evidence - then it is a matter on which you may contradict him”.

[9] More recently, in R. v. B. (S.), 2016 NLCA 20, 377 Nfld. & P.E.I.R. 84, rev’d on other grounds 2017 SCC 16, [2017] 1 S.C.R. 248, the Court of Appeal for Newfoundland and Labrador stated, at paras. 14-15:

One often hears the phrase “credibility is always in issue” or “credibility is always relevant” as the rationale for seeking to contradict a witness on a collateral fact. This use of words confuses what is at issue (i.e. did the accused commit the offence as charged) and what is relevant to that (e.g. has identity been proven) with the process of assessing credibility which is “in issue” only in the sense that it is the subject of controversy.

Put another way, if “credibility is always in issue” or “credibility is always relevant”, then the collateral fact rule would be rendered meaningless as any factual basis for an attack on credibility would become “relevant” and, thereby, would not be “collateral”.

Analysis

[10] The proposed area of cross-examination has no probative value and significant prejudicial effect that, if allowed, would distract the jury and turn this trial into a trial on whether the complainant was assaulted by her common-law spouse over a decade ago. The complainant’s credibility and reliability is certainly a live issue at this trial, but the proposed evidence would not assist the jury in assessing her evidence.

[11] Defence counsel proposes to use the transcript of the complainant’s evidence at the assault proceedings to cross-examine the complainant to show that she has a pattern of becoming angry and making false allegations. He does not want to get into the details of the 2008 assault trial, but agreed that in re-examination the Crown would be allowed to explore those details. If the complainant denies that she made an initial false statement to the police, then defence counsel may simply seek to file the transcript of the proceedings or may seek to call other evidence depending on the exact nature of the complainant’s response.

[12] The proposed evidence is incapable of establishing the pattern sought by the defence and would be of no assistance to the jury in their task of assessing the complainant’s credibility and reliability in this case. I say this for the following reasons:

1. There is no evidence that the complainant made the current allegation because she was angry. Rather, the complainant testified that she only reported the matter to the police after being encouraged to do so by others; and
2. Even if the defence can establish in cross-examination that contrary to the evidence she gave in-chief, the complainant was angry when she reported the matter to the police, the circumstances surrounding the 2007 incident are completely different than the current allegations having regard to the following: a) Contrary to even the proposed evidence in Riley, the past incident is not of a sexual nature let alone one that is of a similar sexual nature to the current allegations; b) The 2007 incident was an alleged domestic assault; c) The 2007 statement to the police is not part of the application. The complainant did testify that she falsely said in that statement that her common-law spouse assaulted her. However, she provided a second statement to the police shortly thereafter recanting that allegation and told the Crown who interviewed her prior to trial that she was resiling from her first statement. At trial she testified that she still loved the accused and hoped to resume a relationship with him. The dynamic that is often seen in domestic assault trials was certainly at play in the 2008 trial; and d) The prior incident is remote in time to the current allegation having occurred a decade before.

[13] Assuming that the complainant was cross-examined on her testimony from the 2008 trial and agreed with that evidence, the fact that a decade earlier she recanted an allegation that her common-law spouse assaulted her would be of no assistance to the jury in determining whether Mr. Lewis, who she barely knew, sexually assaulted her. Hence, it has no probative value; however, the prejudicial effect is significant. Crown counsel would be entitled to explore in re-examination the dynamics at play at the time of the 2008 court proceeding, and it is possible that the complainant might testify that the recantation was false, further diverting the jury’s attention and increasing the prejudicial effect. The jury would be left in a state of “confusion” trying to determine what happened with the assault allegation instead of whether the Crown has proven beyond a reasonable doubt that the complainant was sexually assaulted by Mr. Lewis.

[14] For these reasons, the application to cross-examine the complainant on the 2008 assault proceeding was dismissed.

The Honourable Justice H. Leibovich Date: June 14, 2019