COURT FILE NO.: CR-21-89-0000

DATE: 2023 10 25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: His Majesty the King

AND:

A.H.

BEFORE: Coats J.

COUNSEL: Kelli Frew, for the Crown

Charles Spettigue, for Defence

RESTRICTION ON PUBLICATION

Pursuant to s. 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

HEARD: October 18, 2023

PUBLICATION RESTRICTION NOTICE

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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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.

REASONS FOR RULING

Reasons FOR Ruling Re: Cross-Examination on alleged contact

A. nATURE OF REQUEST

[1] On October 18, 2023, the Defence counsel raised with me that the Crown in the re-examination of S. Di., which had taken place the day before, had gone beyond the permissible bounds of re-examination, by asking S. Di. if she knew the accused A.H. Defence counsel raised this in the context of a possible mid-trial instruction. It was ultimately agreed that it would be discussed in the context of a possible final instruction. The Crown then advised that she intended to ask A.H. about his attempt to contact S. Di. in her cross-examination of A.H. I was then asked to rule as to whether this was permissible.

B. THE LAW

[2] As set out in paragraph 20.04 of Watt’s Manual of Criminal Evidence, (David Watt, Watt’s Manual of Criminal Evidence, 2023 ed., (Canada: Carswell, 2023) in general terms it is not open to the Crown to cross-examine the accused on other disreputable conduct in order to show circumstantially bad character. The overall policy interest to ensure a fair trial for an accused, is a bar to such approach.

C. ANALYSIS

[3] The only relevance of the proposed line of cross-examination could be to ask the jury to infer disreputable conduct by A.H, such as improperly contacting a potential witness. Allowing this line of cross-examination would be prejudicial to A.H. and have little probative value. Certainly the prejudice would outweigh the probative value.

[4] I do not accept the Crown’s submission that the inference of disreputable conduct possibly arising from this line of cross-examination is getting at disreputable conduct related to this case. This is an evidentiary stretch. It is certainly not evidence that tends to prove that the sexual activity between L.J and A.H was not consensual.

D. CONCLUSION

[5] The Crown’s request to cross-examine A.H. on an alleged attempt by him to contact S. Di. on Snapchat is denied.

Coats J.

Date: October 25, 2023