COURT FILE NO.: 319/19-00AP
DATE: 20210503
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Derek Horth
Appellant
H. Limheng, for the Crown
J. Margolin, for the Appellant
HEARD: April 13, 2021
THE HONOURABLE JUSTICE L. WALTERS
reasons for judgment
[1] On July 26, 2019, the appellant was convicted of assault on his ex-girlfriend, contrary to section 266 of the Criminal Code of Canada. He was granted a suspended sentence.
[2] He appeals from conviction only.
[3] The appellant raises the following grounds of appeal:
The trial judge erred by not recalling the complainant for the purposes of remedying a breach of the Browne v. Dunn rule;
The Crown rendered the trial unfair by raising an untimely objection about the breach of the Browne v. Dunn rule;
The trial judge erred in his credibility assessment of the complainant; and
The trial judge erred in his reliability assessment of the complainant.
[4] For the reasons which follow, I have accepted the appellant’s argument on grounds one and two. Accordingly, the conviction of the Honourable Justice Stone dated the 26th of July, 2019 is quashed and a new trial is ordered.
THE FACTS
[5] The facts for the most part are not contested and the respondent accepted those facts as set out in the appellant’s factum. The appellant and the complainant, Ms. Thorpe, were involved in a romantic relationship. Although the couple never lived together, Ms. Thorpe became pregnant with the child Brodie. Prior to the appellant’s arrest, there was no court order in place, however during the course of the trial Ms. Thorpe advised that she had obtained an ex parte court order receiving sole custody of the child.
[6] Ms. Thorpe testified about an incident which occurred in June 2018 in her home in Niagara Falls. She described the incident as one where she was in her bathroom smoking a cigarette with the appellant. The bathroom door was closed and their one-year-old child Brodie was on the other side of the door. The child was crying and banging on the door. Ms. Thorpe testified that the appellant grabbed her by the throat and pushed her through the door causing the child to fall. Neither she or the child sustained any injuries. There was no explanation about what provoked the attack.
[7] In his reasons for judgment, Stone J. accepted the evidence of the complainant and stated, “I believed her to not be speaking out of a desire to assassinate character or otherwise improperly fabricate and put the allegation before me. On the uncontradicted evidence of Ms. Thorpe, I am satisfied that assault did take place exactly as she described it, and a finding of guilt should be entered.”
[8] Ms. Thorpe was the only witness called by the Crown.
[9] The defence called two witnesses at trial, the appellant’s mother and Jocelyn McVane.
[10] Ms. McVane testified that she knew the appellant since they were 12 or 13 years old. She described her relationship with Ms. Thorpe as “more or less acquaintances”.
[11] Ms. McVane testified about an encounter she had with Ms. Thorpe at a mutual friend’s house in approximately March of 2019. Ms. Thorpe described an incident where she attempted to get her son Brodie back from the appellant, however he was not answering his telephone. She contacted the police and was told because there was no court order they would not be able to assist, however she said the police told her that if she had some information about Derek so that they could criminally charge him, they could proceed with that.
[12] Ms. McVane testified that “Cierra looked at me and said, “I did what any mother would do and I lied about a domestic to get Brodie back””.
[13] This conversation was never put to Ms. Thorpe during her cross-examination. There was no objection by the Crown. The court did not interfere.
[14] During closing submissions, the defence argued that Ms. Thorpe fabricated the allegations against the appellant in order to obtain an advantage with respect to the custody of their child Brodie. At that time, Crown counsel argued that Ms. McVane’s evidence should be given little or no weight since her testimony was never put to Ms. Thorpe during cross-examination and was therefore a breach of the rule in Browne v Dunn. This was the first time during the trial that the Crown raised any objection about the Browne v Dunn issue.
[15] Defence counsel immediately acknowledged that it was his error, that he had planned to put Ms. McVane’s proposed evidence to the complainant but simply forgot. He immediately requested to have Ms. Thorpe recalled in order to remedy the breach. The Crown objected arguing that it was too late to do so.
[16] In refusing to permit the witness to be recalled, the trial judge stated the following:
In this case the witness had gone just before the Crown’s case was closed and the matter had reached the point of the final part of argument discussions. It was not believed, to me, at least, that the witness was readily available on this Friday afternoon in the summertime when I, a visiting judge, was in town. It appeared necessary in these circumstances, and the way things had developed, to proceed without permitting the recall of the witness, and the Crown of course took the position that it was too late to recall the witness. I acknowledge it was permissible to recall the witness as I did acknowledge then, but my ruling now is that I am not going to direct or permit the witness to be recalled to try to correct the situation. Again, other things could have taken place by now, including telling the police, telling the Crown, or cross-examining the complainant, or notifying the court the moment the deficiency was identified rather than waiting until the tail end of arguments. Respectfully, and I mean particularly respectfully to defence counsel, it is just too late for that.
[17] The trial judge made this determination despite earlier stating that “This witness gave evidence which, if true, would compel the court to have a reasonable doubt on the giving of some assault complaint, presumably the one at bar.”
[18] Justice Stone also indicated that he had grave concerns about the evidence of Ms. McVane. He stated, “If she had received the information she did from Ms. Thorpe, it seems to me that while waiting to contact the accused was one possibility, another very certainly was to contact the police because basically somebody had just confessed committing a criminal offence to her. In this case the witness, for whatever reasons, did not do that, and one reason could be that the statement was not made exactly as she said, or even perhaps at all.”
[19] Ultimately the trial judge gave no weight to the evidence of Ms. McVane and he concluded that he was left with uncontradicted evidence with respect to the assault.
THE LAW
[20] In R. v. Sheahan, 2017 ONCA 159, the court at para. 12 set out the appropriate test to be applied by a summary conviction appeal court.
Absent an error of law or a miscarriage of justice, the test to be applied by a Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported by the evidence. A Summary Conviction Appeal Court Judge is not entitled to substitute his or her own view of the evidence for that of the trial judge. A trial judge’s factual findings are entitled to deference, absent palpable and overriding error.
[21] In R. v. Dexter, 2013 ONCA 744, Weiler, J.A. set out the general principles of the rule in Browne v Dunn.
[17] The rule in Browne v. Dunn is not merely a procedural rule; it is a rule of trial fairness. The rule was summarized by this court in R. v. Henderson (1999), 1999 CanLII 2358 (ON CA), 44 O.R. (3d) 628 (C.A.), at p. 636 as follows:
This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box.
The cross-examiner gives notice by first putting questions to the witness in cross-examination that are sufficient to alert the witness that the cross-examiner intends to impeach his or her evidence, and second, by giving the witness an opportunity to explain why the contradictory evidence, or the inferences to be drawn from it, should not be accepted: see the comments of Lord Herschell in Browne v. Dunn, at pp. 70-71.
[19] The rule is also a rule of common sense. By enabling the trial judge to observe and assess the witness when he or she is confronted with contradictory evidence and given an opportunity to explain his or her position, the rule promotes the accuracy of the fact-finding process. In doing so, it enhances public confidence in the justice system.
[20] The effect that a court should give to a breach of the rule in Browne v. Dunn will depend on a number of factors. In deciding how to address a breach, a trial judge may consider:
• The seriousness of the breach;
• The context in which the breach occurred;
• The stage in the proceedings when an objection to the breach was raised;
• The response by counsel, if any, to the objection;
• Any request by counsel to re-open its case so that the witness whose evidence has been impugned can offer an explanation;
• The availability of the witness to be recalled; and
• In the case of a jury trial, whether a correcting instruction and explanation of the rule is sufficient or whether trial fairness has been so impaired that a motion for a mistrial should be entertained.
Thus, the extent of the rule’s application is within the discretion of the trial judge after taking into account the circumstances of the case: see R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 65; R. v. Werkman, 2007 ABCA 130, 404 A.R. 378, at para. 9.
[22] Deference is owed to a trial judge’s exercise of discretion in deciding how to deal with a breach of the rule unless error in principle is shown: see R. v. Blom (2002), 2002 CanLII 45026 (ON CA), 61 OR (3d) 51 (C.A.), at para. 20.
[22] Further, in Dexter the Ontario Court of Appeal offered guidance on the role of Crown counsel in the context of a Browne v. Dunn breach. The Crown is not an ordinary litigant and must exercise a public function involving much discretion and power.
[32] The Crown is not an ordinary litigant. In Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, Rand J. stated at pp. 23-24:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. [Emphasis added.]
[33] The Crown exercises a public function involving much discretion and power. It must be allowed to perform the advocacy and truth-seeking function with which it has been entrusted: see R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113, at paras. 19-21; R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 18. In Jolivet, Binnie J. stated at para. 21:
Crown counsel is entitled to have a trial strategy and to modify it as the trial unfolds, provided that the modification does not result in unfairness to the accused. In exercising its discretion the Crown must act fairly and dispassionately. [Emphasis in original.]
[23] At para. 34 the court stated, “Timely objection by the Crown is important because the accused should not be held responsible for defence counsel’s inadvertent or even deliberate failure to observe the rule: see McNeill, at para. 53.”
[24] In R. v. McNeill, 2000 CanLII 4897 (ON CA), [2000] O.J. No. 1357 at para. 47, Moldaver J.A. as he then was stated, “In cases such as this, where the concern lies in a witness's inability to present his or her side of the story, it seems to me that the first option worth exploring is whether the witness is available for recall.”
[25] The court then went on to say at para 49, “In those cases where it is impossible or highly impracticable to have the witness recalled or where the trial judge otherwise determines that recall is inappropriate, it should be left to the trial judge to decide whether a special instruction should be given to the jury.”
[26] Courts have also determined that recalling a witness may not be appropriate where a trial is particularly lengthy (R. v. Quansah, 2015 ONCA 237). The number of witnesses could render the recalling of a witness impractical (R. v. Schoer, 2019 ONCA 105). The fragility of a witness might also impact the ability to recall a witness (R. v. Martin, 2013 ONSC 7011).
DISCUSSION
[27] The first question to answer is whether or not the trial judge erred in not recalling Ms. Thorpe to testify.
[28] Of course the trial judge’s decision is afforded significant deference on appeal. However, the discretion of a trial judge is not unfettered and cannot result in a miscarriage of justice to the accused.
[29] In considering the factors a trial judge may consider when determining how to address a breach of the rule of Browne v. Dunn, it would appear that his rationale for not recalling the witness was flawed.
[30] The trial judge’s reasons for judgment in not recalling the witness are set out in para. 16 of my reasons. Here, whether or not the witness had gone just before the Crown’s case was closed and the matter had reached the point of the final part of argument discussions is immaterial in the circumstances. There was no evidence that witness recall was highly impracticable or impossible. Yes, there was some suggestion that the woman lived out of town and was leaving to go and pick up her child, however, no other real inquiries were made as to her availability. This was a one-day trial and the trial judge’s reasons were given late in the day. The matter had to be adjourned in any event for sentencing and it would appear efforts could have been made to have the witness recalled on that adjournment date. There was no evidence to suggest the witness was particularly fragile.
[31] The fact that the judge was a visiting judge, in my view, is completely irrelevant. As indicated earlier, the trial judge had to return to St. Catharines in order to complete the sentencing on this matter. It makes no sense that he would not have been able to hear a witness on that return date.
[32] It is true that the Crown took the position that it was too late to recall the witness and that is a valid concern. However, in this case as will be discussed further, the Crown’s conduct in not making a timely objection to the evidence of Ms. McVane in the first place interfered with the trial fairness.
[33] Lastly, the trial judge’s reasons that other things could have taken place, including telling police, telling the Crown, cross-examining the complainant or notifying the court, make no sense in light of the facts of this case. Defence counsel immediately acknowledged his error in not putting Ms. McVane’s testimony to the complainant when the subject was raised by the Crown. He acknowledged that he had a note to do this, but inadvertently forgot to put these questions to the complainant. He immediately asked to have the witness recalled. Telling the police or telling the Crown are meaningless in this fact situation. He asked to cross-examine the complainant by having her recalled. In my view, these conclusions of the trial judge are illogical.
[34] I accept the submissions of the appellant that Ms. McVane provided evidence on matters of substance that were fundamental to determining the issues in the case. The trial judge acknowledged that if her evidence was believed it would have caused the court to have reasonable doubt.
[35] Also of concern is the court’s assessment of Ms. McVane’s credibility based in part on the evidence elicited by the Crown during cross-examination, of a witness the Crown later submitted should have no weight before the court because of the breach of the rule in Browne v. Dunn.
[36] In these circumstances, the failure to recall this witness resulted in unfairness to the accused and did not meet the ends of justice.
[37] The next issue the court must consider is the effect of the Crown’s failure to raise a timely objection to the breach of the rule in Browne v. Dunn.
[38] Here there is no dispute that while Ms. McVane gave her testimony and was examined in-chief by counsel, there was no objection by the Crown or interference by the trial judge. In fact, the Crown cross-examined Ms. McVane, in particular, regarding what she did, and why she sat on the information and did not go to the police. It was only during the course of the Crown’s submission, that the breach of the rule was first raised.
[39] It was incumbent upon the Crown to raise the objection when the evidence was first tendered. Whether or not this was part of trial strategy one does not know, however, this type of strategy cannot result in unfairness to the accused. Failure to object in a timely way has made the accused responsible for the inadvertence of his solicitor to observe the rule in Browne v. Dunn.
[40] It is particularly concerning that the Crown cross-examined the very witness they suggested the court not consider. It is significant that the court relied on the very questions raised by the Crown in cross-examination in questioning the credibility of Ms. McVane.
[41] The trial judge is afforded the utmost deference in the exercise of his judicial discretion, however, when the result is unfairness to the accused or a miscarriage of justice, the conviction cannot stand. This is particularly so in light of the Crown’s failure to object in a timely fashion.
[42] In light of these reasons, I do not need to address the appellant’s third and fourth grounds of appeal.
[43] Accordingly, the conviction is quashed and a new trial ordered.
Walters J.
Released: May 3, 2021
COURT FILE NO.: 319/19-00AP
DATE: 20210503
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Derek Horth
REASONS FOR JUDGMENT
Walters J.
Released: May 3, 2021