DATE: 20000613
DOCKET: C22060
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., DOHERTY and ROSENBERG JJ.A.
BETWEEN: )
) Keith Wright
HER MAJESTY THE QUEEN ) for the appellant
)
Respondent )
)
- and - ) Robert Kelly
) for the respondent
WILLIAM BATTE )
)
Appellant )
) Heard: November 25-26, 1999
) Additional written submissions
) received January 31, 2000.
On appeal from the conviction imposed by Mr. Justice O’Connor,
sitting with a jury, on April 12, 1995, and from the sentence
imposed on June 28, 1995.
DOHERTY J.A.:
I
[1] The appellant was charged with sexual assaults involving
three complainants. All of the alleged assaults occurred in the
late 1970s when the complainants were young teenagers. The
allegations came to the attention of the police in 1993.
[2] Two of the complainants were sisters (D.D. and D.S.D.). The
charges involving them were ordered severed from the charges
involving the third complainant, N. The Crown proceeded with the
trial involving the sisters first. The jury convicted the
appellant of:
indecently assaulting D.D. between March 1, 1979 and July
31, 1979;
raping D.D. between April 1, 1979 and October 31, 1979; and
raping D.S.D. between June 29, 1979 and October 31, 1979.1
[3] The trial judge imposed a total sentence of 4 years.
[4] Subsequent to the appellant’s conviction and sentencing on
the charges involving the sisters, and while this appeal was
pending, the Crown proceeded with the charges involving N. The
jury convicted the appellant of one count of indecent assault and
the trial judge imposed a 21 month concurrent sentence.*
[5] The appellant appealed all of his convictions and sentences.
The appeals were heard together.
[6] At the conclusion of oral argument of the appeals, the court
requested further written submissions on one ground of appeal
(the refusal to order production of the complainants’
confidential records). At the request of counsel for the
appellant, the written submissions were expanded to include a new
ground of appeal (alleged non-direction on the absence of a
timely complaint by any of the complainants). The written
submissions were delivered to the panel on January 31, 2000.
[7] For the reasons authored by Rosenberg J.A. (released with
these reasons), the court has allowed the appeal from the
conviction relating to the alleged assault on N., quashed that
conviction and ordered a stay of proceedings. The court
concluded that the appellant was denied his constitutional right
to a trial within a reasonable time.
[8] These reasons address the grounds of appeal arising out of
the trial involving the allegations made by D.D. and D.S.D. That
trial was completed some 26 months before the trial involving the
allegations made by N. and there is no s. 11(b) Charter claim
advanced by the appellant on this appeal.2
II
[9] The trial turned on the credibility of the complainants.
The Crown’s case rested almost entirely on their evidence. They
described how in March 1979 they had agreed to do work at the
appellant’s farm in exchange for the opportunity to ride his
horses. Both complainants had a strong interest in horses. They
were 13 1/2 years old at the time. The complainants testified
that the appellant began to sexually assault them almost from the
outset of their involvement with him. The abuse escalated and
persisted throughout the period described in the indictment. The
sisters also testified that despite this abuse, they continued to
return to the appellant’s farm, stayed with him during the summer
of 1979, went on a vacation with him in the fall of 1979, and
eventually moved to New Brunswick to be with him in 1980.
[10] The appellant chose not to testify. It was the position of
the defence that none of the alleged abuse occurred. The defence
relied on the conduct of the complainants throughout their long
association with the appellant and argued that, as a matter of
logic and common sense, that conduct was inconsistent with their
claim that they were sexually abused in 1979. The defence also
argued that the complainants had not shown any of the usual signs
associated with sexual abuse and that the complainants’ parents,
with whom they were very close, had noticed nothing untoward at
any time during the complainants’ long association with the
appellant. The defence contended that for some reason (two
possibilities were suggested), the complainants had come to hate
the appellant and had set out to “get him” by making false
allegations in 1993, more than ten years after the alleged abuse
had occurred.
[11] The jury’s verdicts indicate that it accepted the evidence
of the complainants and, despite the arguments forcefully
advanced on behalf of the appellant, had no reasonable doubt as
to his guilt.
[12] The appellant advanced eight grounds of appeal on the appeal
from conviction. I will address the five grounds on which the
court required submissions from the Crown:
Did the trial judge err in refusing to order production of
the complainants’ therapeutic records?
Did the trial judge err in admitting evidence of sexual
conduct between the appellant and the complainants not
encompassed by the indictment? If the evidence was properly
admissible, did the trial judge fail to give a proper limiting
instruction?
Did the trial judge err in instructing the jury that it
could ask itself why the complainants would make the allegations
they did if they were not true?
Did the trial judge, in his supplementary charge to the
jury, effectively deliver a reply for the Crown to arguments
advanced by the defence, and thereby cause a miscarriage of
justice?
Did the trial judge err in failing to instruct the jury that
there was no evidence that either complainant had complained of
the alleged sexual assaults in a timely fashion and that their
failure to do so should count against their credibility?
III
[13] D.D., her sister D.S.D. and a brother were all born on
October 31, 1965. Both sisters were interested in horses from a
very early age. D.D. worked for neighbours on their farms in
exchange for riding privileges from the time she was 12 years
old. She met the appellant in March 1979 while working for a
neighbour. The appellant was in his early forties and lived
alone on his farm. He had a full time job in the city and did
not have time to do all of the chores around the farm. He
offered to let D.D. and a friend ride his horses if they would do
chores at the farm. D.D. was happy to get the opportunity to do
more riding and accepted the appellant’s offer. She asked if her
sister, D.S.D., could join her. The appellant agreed.
[14] D.D., her friend and D.S.D. began going to the appellant’s
farm almost every weekend. They did chores, rode the appellant’s
horses and earned some money by giving riding lessons. D.D.
testified that from the outset the appellant would touch her in
inappropriate ways when he was alone with her and tell her how
much he needed her. The appellant, who was usually very nice,
would become very insistent when groping D.D. She had no
previous sexual experience and was very shy. The touching
escalated from fondling over D.D.’s clothing to reaching
underneath her clothing and touching her breasts and vagina.
Despite these incidents, D.D. returned to the appellant’s farm on
a weekly basis.
[15] D.D. described an incident in April 1979 during a barbecue
held at the appellant’s farm. D.D. was in the house and her
sister and friend were outside with the appellant. He came
inside, grabbed D.D. and pushed against her. He told her that he
loved her and would marry her when she turned 16. He kissed her
and rubbed his crotch area against her vaginal area until he
ejaculated. He was fully clothed. The appellant changed his
pants and went back outside to the barbecue. In her testimony,
D.S.D. recalled the barbecue and that the appellant had changed
his pants during the barbecue. D.S.D. had made no reference to
the appellant changing his pants in her statement to the police.
She first provided this detail in a statement to the Crown
shortly before the trial. Counsel for the appellant at trial
pointed to this as one example of the complainants’ altering
their evidence so that the evidence of one would be consistent
with and support the evidence of the other.
[16] D.D. testified that a short time after the barbecue
incident, she and her sister went to a drive-in movie with the
appellant. He told them about his deceased wife and said that
the girls looked like her. He talked about how difficult his
wife’s death had been and the problems he had experienced raising
young children by himself. The complainants felt sorry for him.
After the movie the appellant drove the complainants home.
D.S.D. left the car and went inside, but D.D. remained in the car
with the appellant. He lowered his shorts, forced her to rub his
erect penis and then ejaculated.
[17] In late May or early June 1979, the sisters stayed at the
appellant’s home overnight for the first time. This would become
routine. On this first occasion, the girls slept in the same
bedroom. The appellant gave them alcohol. Neither girl had
consumed alcohol before that night. D.S.D. went to bed first.
After she was in bed, the appellant attacked and raped D.D. He
forced himself on her despite her resistance, telling her that he
had had a vasectomy. D.D. had never had sexual intercourse
before and she told the appellant that it hurt very much. He
would not stop or slow down, but told her “it is supposed to
hurt, it’s your first time.” The next morning, the appellant was
in a very good mood and asked D.D. “How was it last night?”
[18] D.D. indicated that the appellant raped her on one other
occasion prior to the end of the school year in 1979. She said
that when the appellant wanted sexual activity he would become
very forceful and insistent. As soon as the sex was over, he
would be very nice to her.
[19] After school finished in June 1979, D.D. and her sister
began to stay at the appellant’s residence most of the time.
They attended to the horses, broke horses for a neighbour, and
gave riding lessons to students. They enjoyed all of these
activities very much.
[20] The appellant had the sisters sleep in separate bedrooms.
According to D.D., he came into her room four or five times a
week at night and raped her. These episodes lasted about 15
minutes. The appellant told her that she should not tell anyone
about their sexual activities.
[21] After the sisters returned to school in September 1979, they
continued to live part-time at the appellant’s farm. When they
turned 14 on October 31, 1979, the appellant gave them each an
engraved watch.
[22] In September or October 1979, the appellant told the sisters
that he and a group of his neighbours were going to the Bahamas.
The appellant offered to take the sisters with him on the
holiday. They wanted to go but did not think that their parents
would allow it. Much to their surprise, the appellant persuaded
their parents to let him take the girls to the Bahamas.
According to Carol N., who had organized the trip, the appellant
and the two sisters kept largely to themselves while in the
Bahamas.
[23] D.D. said that she was raped on three occasions by the
appellant in the Bahamas. She said that apart from the rapes,
the trip was “wonderful.” The jury were shown pictures taken on
the trip. The sisters appeared to be having a good time.
[24] After the appellant and the sisters returned from the
Bahamas, the sisters continued to live with the appellant. In
December 1979, the appellant’s employer transferred him to New
Brunswick and the girls returned to their parents’ home. In
early 1980, the appellant bought a farm in New Brunswick and
invited the girls to visit him. He described the farm in glowing
terms and told the girls that he had a pair of Palomino horses
for them. He had also made arrangements for them to go to school
there and had described himself as the girls’ guardian.
[25] The complainants wanted to go to New Brunswick. They went
to visit in March of 1980 but ended up enrolling in school and
staying with the appellant. Each girl had her own bedroom in the
appellant’s home in New Brunswick. No one but the appellant and
the sisters lived in the house. D.S.D. remained with the
appellant in New Brunswick until March 1981. D.D. stayed with
him until the fall of 1981 and returned the following year.
[26] D.D. testified that while she was living with the appellant
in New Brunswick, she was raped on a regular basis by him. He
would come to her room at night a few times a week and demand
that she submit to sexual intercourse.
[27] One night in about December 1980, D.D. met her sister in the
hallway outside of the appellant’s bedroom. D.S.D. asked D.D. if
the appellant was “doing things” to her and D.D. confirmed that
he was. D.S.D. refused to believe her sister, so D.D. said she
would prove it. D.D. then went into the appellant’s room and had
sexual intercourse with him while D.S.D. listened at the door.
D.S.D. became very angry and confronted the appellant who in turn
became angry with the sisters for deceiving him. According to
both sisters, neither had any idea that the other was engaging in
sexual activity with the appellant before their chance encounter
in the hallway.
[28] D.S.D. wanted to return home to Ontario immediately, but
ended up staying in New Brunswick until March 1981 when she
returned to Ontario with her sister, the appellant and a friend.
The appellant was returning to Ontario to pick up some horses.
D.S.D. remained with her parents in Ontario, but after a short
visit, D.D. returned to New Brunswick with the appellant. She
remained there until the late summer of 1981. During that time,
the appellant had sexual intercourse with her about three or four
times a week. D.D. returned home to live with her parents in the
fall of 1981 because she did not like the school in New
Brunswick. She returned to New Brunswick to live with the
appellant in the summer of 1982 and remained there until the fall
of 1984 when she returned to her parents’ home. D.S.D. and her
parents visited D.D. and the appellant in the summer of 1983 and
1984.
[29] D.D. was married in October 1985. She invited the appellant
to her wedding. She explained that her mother suggested that the
appellant should be invited. D.D. did not want to tell her
mother about the sexual abuse and could not offer any other
reason why the appellant should not attend her wedding. D.D.
also visited the appellant in New Brunswick on her honeymoon. In
1987, she and her husband purchased a horse from the appellant
for their child. D.D. said that there was an argument over the
soundness of the horse, but denied that her decision to go to the
police had anything to do with her dissatisfaction with the
horse.
[30] D.D. said that she resisted the appellant’s sexual advances
at first and told him that she did not want to have sex with him.
She said that she soon realized that her resistance was useless.
He simply would not stop. She even begged him to take some pills
so that he would not want to have sex with her.
[31] D.D. was asked why she continued to visit the appellant,
live with him and return to him on so many occasions over so many
years if in fact he was sexually abusing her on an almost daily
basis. She said she had a lot of fun at the farm, and she
especially enjoyed riding the horses. She also thought that her
sister was having fun and she did not want to spoil her sister’s
good time by revealing the appellant’s abuse. She said that
apart from the sexual abuse, the appellant was very kind,
generous and treated her very well.
[32] D.S.D. confirmed that she, her sister and a friend had begun
to work regularly at the appellant’s farm in March 1979. She
testified about the barbecue incident and she recalled that the
appellant and D.D. were in the house while she and their friend
were outside. When the appellant came out of the house he was
wearing different pants.3 She also recalled the trip to the
drive-in movie and the appellant’s references to his deceased
wife. D.S.D. said she went into the house before D.D., who
stayed in the car with the appellant.
[33] D.S.D. testified that about one month after she started to
work on the farm, the appellant came up behind her and put his
arms around her. She ducked away and rushed out of the room.
She said that this and several other “little incidents” involving
the appellant upset her. He was always “bugging” her and telling
her that he liked her very much. She said that she made it clear
to him that she did not want him to touch her.
[34] D.S.D. recalled the evening when she and her sister first
stayed overnight at the appellant’s farm. She testified that he
gave them alcohol and that she went to bed before her sister.
When her sister came to bed, she was stumbling and speaking
incoherently.
[35] According to D.S.D., she and her sister stayed overnight at
the appellant’s farm on a regular basis in the summer of 1979.
Each sister had her own bedroom. She recalled an evening in July
1979 when the appellant was banging on her bedroom door begging
her to let him in. He said “I want to hug you. I’ll treat you
like a queen.” D.S.D. held the door closed and told the
appellant she wanted no part of any contact with him other than
as a friend. D.S.D. described the appellant as desperate. He
eventually went away. Like her sister, D.S.D. was very shy and
had no experience in sexual matters.
[36] A few days after the incident at the bedroom door, D.S.D.
woke in the middle of the night to find the appellant on top of
her having sexual intercourse with her. She was in shock. She
felt she could not resist. After the appellant left her bedroom,
D.S.D. felt numb. She could not believe what he had done. This
was her first sexual experience.
[37] After the first act of sexual intercourse, the appellant
forced himself on D.S.D. once or twice a week. He would approach
her when D.D. was not around and tell her that he “needed her.”
D.S.D. acknowledged that she did not physically resist the
appellant on these occasions. She felt that she had no choice
but to comply with his demands. He was very insistent and
referred to his penis “as a person with a mind of its own.”
[38] D.S.D. also recalled the trip to the Bahamas in the fall of
1979. She and her sister stayed in a suite with the appellant.
She described many activities she enjoyed while in the Bahamas,
but also said that on one occasion the appellant took her out on
the beach and raped her.
[39] D.S.D. said that the sexual intercourse and other sexual
activity between her and the appellant continued after the return
from the Bahamas and the move to New Brunswick. She did not know
that her sister was also being sexually assaulted by the
appellant. She questioned the appellant about her sister on one
occasion and he made a flippant reply indicating he was not
physically capable of carrying on a sexual relationship with both
sisters.
[40] D.S.D. acknowledged that she was very anxious to go to New
Brunswick and live with the appellant on his farm with the
horses. She even threatened to run away when she was sixteen if
her parents did not allow her to go. According to D.S.D., she
and the appellant engaged in various kinds of sexual activity
after she moved to the farm in New Brunswick.
[41] Like her sister, D.S.D. testified that she and D.D. met in
the hallway outside of the appellant’s bedroom at the farm in New
Brunswick in December 1980. This was the first time that either
realized that the other was being abused by the appellant.
D.S.D. described how her sister went into the appellant’s bedroom
and had sexual intercourse with him while D.S.D. listened at the
door. She did so to prove to D.S.D. that the appellant was
abusing both of them. D.S.D. became very angry, opened the door
and began yelling at the appellant. He in turn became angry
because he had been tricked by the sisters. D.S.D. said that
after the confrontation in the appellant’s bedroom, her
relationship with the appellant and with her sister changed. The
appellant became much closer to D.D. D.S.D. argued constantly
with both of them. According to her, she wanted to come home
immediately, but had to wait until March 1981 when the appellant
was returning to Ontario. She also said that she had sexual
intercourse with the appellant at his request on one more
occasion before returning to Ontario.
[42] D.S.D. had a chance meeting with the appellant at her
mother’s home in 1991. Shortly afterwards, she wrote to the
appellant and warned him to stay away from her sister and her
mother.
[43] D.S.D. was asked to explain how she could spend so much time
with the appellant, go on a vacation with him and even insist
that she be allowed to move to New Brunswick to live with him if
in fact she was regularly sexually abused by him. D.S.D. said
that until her last few months in New Brunswick, the appellant
treated her very well, apart from the sexual abuse. There were a
lot of fun things to do on the farms and she enjoyed riding the
horses and making money giving riding lessons. D.S.D. also
thought that her sister was having a very good time and she did
not want to spoil that for her sister by exposing the appellant.
D.S.D said she was afraid to tell her parents.
[44] The complainants’ mother described her daughters as quiet,
obedient girls who were very close to each other. She also said
that the entire family was close and that she kept a careful eye
on her daughters. She testified that she allowed her daughters
to go to work for the appellant, to stay at his farm overnight,
to move in with him in the summer of 1979, to go to the Bahamas
in the fall of 1979, and to move to New Brunswick in early 1980
to live with the appellant. She testified that while her
daughters were living with the appellant in New Brunswick, she
would speak to them on a regular basis and that she visited them
on two occasions. She did not notice anything suspicious during
the time when her daughters were working for or living with the
appellant. She first became aware of the alleged abuse in 1991.
[45] There was no evidence called by the defence.
IV
Did the trial judge err in refusing to order production of the
complainants’ therapeutic records?
[46] Prior to trial, the appellant brought a motion for an order
compelling production of certain records in the possession of the
Family Violence Treatment Centre in Orangeville, Ontario. The
records pertained to various counselling sessions involving the
two complainants.4
[47] The motion was brought in 1994 before the decision of the
Supreme Court of Canada in R. v. O’Connor (1995), 103 C.C.C. (3d)
1, in which the court set out in detail the procedures and
principles governing production of a complainant’s confidential
records held by a third party. Those procedures and principles
were supplanted in 1997 by Parliament (S.C. 1997, c. 30, s. 1).
[48] The motion judge followed the procedures and principles set
down by the British Columbia Court of Appeal in R. v. O’Connor
(No. 2) (1994), 90 C.C.C. (3d) 257. In keeping with that
authority, he proceeded with a two-step inquiry. The motion
judge held that the appellant had demonstrated that the records
were likely relevant to a fact in issue and ordered that the
records be produced to him for review. After reviewing the
records, the motion judge held that disclosure to the appellant
could not assist in making full answer and defence. He found it
unnecessary to balance the complainant’s privacy interests
against the appellant’s right to make full answer and defence,
and declined to order disclosure to the appellant.
[49] Mr. Wright submits that the motion judge correctly concluded
that the records were likely relevant but erred in failing to
order disclosure to the appellant. By way of alternative
submission, Mr. Wright argues that the trial judge should have
ordered those in possession of the records to provide the
appellant with an inventory of the contents of the records so
that he could more effectively address the potential relevance of
the records. Mr. Wright also submits that at the second stage of
the inquiry, the motion judge should have provided the appellant
with a summary of the contents of the records so that he could
make effective submissions as to their significance to his
ability to make full answer and defence.
[50] The Crown maintains that the motion judge was correct in
refusing production and submits that neither an inventory, nor a
judicial summary of the records was requested or necessary.
[51] Crown counsel further submits that even if the motion judge
erred in applying the common law as it stood at the time of the
motion, that error does not warrant the directing of a new trial.
It is Crown counsel’s position that if a new trial were ordered,
the appellant’s motion for disclosure would be governed by the
present statutory scheme. Crown counsel contends that under that
scheme the appellant could not possibly obtain production of the
records. He submits, therefore, that even if the motion judge
misapplied the then governing principles, that error resulted in
no substantial wrong or miscarriage of justice.
[52] Mr. Wright agrees that if a new trial were ordered, the
statutory scheme would govern. He submits, however, that it
would be unfair to test the application for disclosure against
rules which were non-existent when the application was made. He
submits that if the trial judge erred in the application of the
law as it stood at the time of the application, the effect of the
statutory provisions can only be properly determined at a new
trial where the appellant has an opportunity to address the issue
raised by the legislation.
[53] The law governing the appellant’s motion for disclosure of
the complainants’ confidential records was uncertain when the
motion was decided and has undergone significant changes since
then. There are, however, three features of the applicable law
that have not changed and that are dispositive of this ground of
appeal:
An application for production of confidential records must
be approached in two stages. First, the judge must decide
whether to order production to the court. If the judge orders
production, he or she must examine the records and then decide
whether to order disclosure to the defence: R. v. O’Connor (No.
2), supra, at p. 261 (B.C.C.A.); R. v. O’Connor, supra, at pp.
18-19 (S.C.C.); Criminal Code ss. 278.5-278.7.
The likely relevance of the records to an issue at trial, a
witness’ credibility, or the competence of a witness to testify
is a prerequisite to an order compelling production of the
records to the judge: R. v. O’Connor (No. 2), supra, at pp. 261-
265 (B.C.C.A.); R. v. O’Connor, supra, per majority, at pp. 19-
20, per dissent at pp.62-67 (S.C.C.); Criminal Code s.
278.5(1)(b).5
The onus is on the accused to establish likely relevance.
In doing so, the accused cannot rely on speculative assertions or
stereotypical assumptions: R. v. O’Connor (No. 2), supra, at pp.
261-262, 265-267, (B.C.C.A.); R. v. O’Connor, supra, per
majority, at p. 18, per dissent at pp. 63-65; Criminal Code s.
278.3(4), s. 278.5(1)(b).
[54] The appellant attempted to satisfy this onus of
demonstrating likely relevance with the affidavit of counsel
associated with trial counsel, a transcript of the preliminary
inquiry into these allegations and the testimony of Ms. Stacey
Neumin, the therapist who counselled the complainants at the
treatment centre in Orangeville and prepared the records in
question.
[55] The complainants testified at the preliminary inquiry that
they discussed going to the police for some time before they
finally did so in February 1993. They were concerned that the
appellant might take advantage of other young girls. The
complainants eventually went to the police in February 1993 and
gave statements to them. The police investigated the allegations
and laid charges against the appellant in May 1993.
[56] On cross-examination at the preliminary inquiry, the
complainants testified that they had not been to any doctor or
any social service agency in connection with the alleged abuse by
the appellant prior to going to the police. The complainants
first sought counselling on April 30, 1993, some two months after
giving statements to the police. Their first counselling session
was in late July 1993, some five months after they went to the
police and two months after the charges had been laid.
[57] Ms. Neumin testified that she had some 20 counselling
sessions with D.S.D. She was not asked when any of these
sessions occurred and she was not asked when the last session had
occurred. There was no evidence as to how many sessions D.D.
attended. Nor was there any evidence indicating whether the
complainants attended the counselling sessions individually or
together.
[58] The only evidence of the nature of the records came from Ms.
Stacey Neumin. She acknowledged that in the course of the
sessions, D.S.D. had discussed what the appellant did to her, her
feelings towards the appellant and the reasons she had not
disclosed the abuse before she did. Ms. Neumin was not asked
what topics she discussed with D.D. and I can find no evidence in
the record of what D.D. and Ms. Neumin discussed in their
counselling sessions.
[59] Ms. Neumin explained that the records consisted of her notes
of the counselling sessions. These notes were prepared during
and after each session. They were not intended as a “deadly
accurate” summary of what was said in the counselling sessions
and were not prepared with a view to testing the accuracy or
consistency of the complainants’ recollection. Ms. Neumin
prepared the notes to assist her in subsequent counselling
sessions. In making the notes, Ms. Neumin was not concentrating
on recording the exact words said to her, but rather on the
“subtext with respect to feelings.” She did say, however, that
there were some exact quotes in the notes. Ms. Neumin referred
to the notes as a “summary of my understanding of the sessions we
have had” and as her attempt to “summarize the scenes, sort of
identify for myself my understanding of the words and phrases
that my clients will use.” Ms. Neumin agreed with the trial
judge’s suggestion that the notes were her interpretation of what
the complainants had said. The complainants did not review the
notes at any time and had no opportunity to make any changes in
the notes.
[60] In concluding that the records passed the likely relevant
threshold, the motion judge said:
Relevance, in my view, must be given a broad
interpretation in the context of this kind of
application. Relevance, in my view, means
that which is logically probative or has logical
probative value of facts in issue.
[61] The motion judge also identified the credibility of the
complainants as a central issue in the trial. He concluded that
the records were likely to contain information that was relevant
to the credibility of the complainants.
[62] Mr. Wright resists any attempt to review the decision that
the records met the likely relevant threshold. He submits that
the Crown has not suggested that the motion judge erred in so
holding and that it would be unfair to require the appellant to
cross that threshold again.
[63] I cannot accept that submission. The appellant has
challenged the ruling that he is not entitled to disclosure of
the confidential records. The correctness of that ruling cannot
be reviewed without determining whether the appellant had
established that the records were likely relevant to an issue at
trial. The appellant knew that he had to establish likely
relevance and that issue was fully canvassed on the motion. A
review of that facet of the motion judge’s ruling is necessary in
order to determine whether he properly refused production of the
records to the appellant. That review causes no unfairness to
the appellant.
[64] In R. v. O’Connor, supra, at p. 19 (S.C.C.), the majority
defined “likely relevant” in these terms:
In the disclosure context, the meaning of ‘relevance’
is expressed in terms of whether the information may
be useful to the defence: [citations omitted]. In
the context of production, the test of relevance
should be higher: the presiding judge must be
satisfied that there is a reasonable possibility that
the information is logically probative to an issue at
trial or the competence of a witness to testify. When
we speak of relevance to “an issue at trial”, we are
referring not only to evidence that may be probative
to the material issues in the case (i.e., the unfolding
of events) but also to evidence relating to the
credibility of witnesses and to the reliability of other
evidence in the case: … [Emphasis added.]
[65] The majority went on to stress that the likely relevance
threshold, while significant, should not be overly onerous. At
p. 20, the majority describes the purpose of the threshold test
in these terms:
… to prevent the defence from engaging in ‘speculative,
fanciful, disruptive, unmeritorious, obstructive and
time-consuming’ requests for production. [citation
omitted]
[66] Given the total absence of any indication of what D.D. spoke
to Ms. Neumin about in the counselling session, I fail to see how
a request for the production of her confidential records could be
described as anything other than “speculative.” The motion judge
appears to have treated the two complainants as one. He should
not have done so. There was no evidence upon which he could
conclude that the confidential records of D.D. were likely
relevant to any issue at the trial, including her credibility.
[67] The records referable to D.S.D.’s counselling sessions did
contain references to topics which were relevant to the issues at
trial and particularly to the credibility of D.S.D. Those
records contained references to the alleged abuse and to factors
which could impact on D.S.D.’s credibility (e.g., her feelings
towards the appellant and her reasons for delaying so long in
disclosing the abuse). In determining whether Ms. Neumin’s
description of the records satisfied the appellant’s onus of
demonstrating that they were likely relevant, it is important to
underscore the limits of the evidentiary basis established by the
appellant.
[68] There was no evidence that the records had any direct
relevance to the question of whether the appellant committed the
acts alleged against him. By that I mean, there was no evidence
that anything in the records would be admissible as a free-
standing piece of evidence going to the question of whether the
abuse occurred. The potential relevance or evidentiary value of
the records rested in their potential to refresh the memory of
D.S.D. or impeach her credibility. Clearly, Ms. Neumin’s
impressions of the “subtext” of the conversations and her
interpretation of what D.S.D. said or meant had no relevance.
[69] There was also no evidence that the counselling process
precipitated or contributed to D.S.D.’s decision to go to the
police. The evidence was to the contrary. D.S.D. went to the
police and gave them a statement some five months before she
began counselling. Furthermore, there is no evidence that the
counselling process played any role in reviving, refreshing or
shaping the memory of D.S.D. Finally, there is no evidence that
D.S.D. suffered from any emotional or mental problem which could
have any impact on her reliability or veracity, and the nature of
the allegations themselves did not suggest any such problems.
[70] The appellant’s position with respect to the likely
relevance of the records must come down to this. The records
contained statements made by D.S.D. that referred to the alleged
abuse and to matters affecting her credibility. Anything said by
D.S.D. about the abuse or about a matter which could affect her
credibility passes the likely relevance threshold, even absent
any suggestion that the statements differ from or add anything to
the complainant’s statement and testimony at the preliminary
hearing.
[71] If the likely relevance bar is that low, it serves no
purpose where the records relate to counselling or treatment
connected to allegations of sexual abuse. It is impossible to
imagine that such records would not contain references to the
alleged abuse or matters that could affect the credibility of the
complainants’ allegation of abuse. In my view, the mere fact
that a complainant has spoken to a counsellor or doctor about the
abuse or matters touching on the abuse does not make a record of
those conversations likely relevant to a fact in issue or to a
complainant’s credibility.
[72] I would hold that where confidential records are shown to
contain statements made by a complainant to a therapist on
matters potentially relevant to the complainant’s credibility,
those records will pass the likely relevance threshold only if
there is some basis for concluding that the statements have some
potential to provide the accused with some added information not
already available to the defence or have some potential
impeachment value. To suggest that all statements made by a
complainant are likely relevant is to forget the distinction
drawn by the majority in O’Connor, between relevance for the
purposes of determining the Crown’s disclosure obligation and
relevance for the purposes of determining when confidential
records in the possession of third parties should be produced to
a judge.
[73] Although I am not testing the trial judge’s ruling against
the present statutory scheme, that scheme does provide some
support for my interpretation of the “likely relevant” standard
where the records are said to go to the credibility of the
complainant. Section 278.3(4) provides in part:
Any one or more of the following
assertions by the accused are not
sufficient on their own to establish
that the record is likely relevant
to an issue at trial or to the
competence of a witness to testify:
…
(d) that the record may disclose a
prior inconsistent statement of the
complainant or witness;
(e) that the record may relate to the
credibility of the complainant or witness; …
[Emphasis added.]
[74] In upholding the constitutionality of s. 278.3, in R. v.
Mills (1999), 139 C.C.C. (3d) 321 at 380 (S.C.C.), the majority
said:
The purpose and wording of s. 278.3 does not
prevent an accused from relying on the assertions
set out in subsection 278.3(4) where there is an
evidentiary or informational foundation to suggest
that they may be related to likely relevance. …
The section requires only that the accused be able
to point to case specific evidence or information
to show that the record in issue is likely relevant
to an issue at trial or the competence of a witness
to testify. … [Emphasis added.]
[75] The determination of likely relevance under the common law
scheme requires the same approach. The mere assertion that a
record is relevant to credibility is not enough. An accused must
point to some “case specific evidence or information” to justify
that assertion. In my view, an accused must be able to point to
something in the record adduced on the motion that suggests that
the records contain information which is not already available to
the defence or has potential impeachment value.
[76] The requirement that an accused be able to show that the
statements contained in the record have some potential to provide
added information to the accused or some potential to impeach the
credibility of the complainant is not an onerous one. For
example, in this case, the appellant had the initial statement
given to the police by D.S.D. before she commenced therapy. He
also had a transcript of her lengthy examination-in-chief and
cross-examination at the preliminary inquiry taken after she
commenced therapy. Had counsel shown material differences
between the initial statement and the preliminary inquiry
testimony, these differences coupled with the fact that the
complainant spoke to a therapist about these matters between the
giving of the statement and giving any evidence at the
preliminary inquiry may have established that statements she made
to the therapist touching on matters relevant to her credibility
had potential impeachment value and were, therefore, likely
relevant. Similarly, had the appellant been able to produce
evidence suggesting a connection between the evidence given by
the complainant at the preliminary inquiry and the sessions with
her therapist, this would also have established potential
impeachment value.
[77] It will not, however, suffice to demonstrate no more than
that the record contained a statement referable to a subject
matter which would be relevant to the complainant’s credibility.
The mere fact that a witness has said something in the past about
a subject matter on which the witness may properly be cross-
examined at trial does not give that prior statement any
relevance. It gains relevance only if it is admissible in its
own right or has some impeachment value. In my view, the mere
fact that a complainant said something about a matter which could
be the subject of cross-examination at trial, does not raise a
reasonable possibility that the complainant’s statement will have
some probative value in the assessment of her credibility.
[78] On the record produced for the motion judge, the appellant
did not establish the likely relevance of the complainant’s
records. They should not have been produced to the judge much
less disclosed to the appellant.
[79] As I am satisfied that the records should not have been
produced to the judge, I need not address the appellant’s
submission that he was entitled to judicial summaries of the
records produced to the judge.
[80] I would also reject his submission that the trial judge
should have required the custodians of the documents to provide
the appellant with an inventory of the documents contained in the
records. In many cases, an inventory will be helpful to all
parties involved in the motion. There is, however, no rule under
either the common law or statutory scheme requiring an inventory.
[81] The motion judge was not asked to direct that an inventory
be produced to the appellant. The appellant was able to examine
Ms. Neumin and obtain a broad description of the contents of the
records.6 Nor did the motion judge make any ruling which limited
counsel’s ability to acquire a further description of the
contents of the records if he thought it helpful. The appellant
was not prejudiced by the absence of an inventory of the
documents contained in the records.
Did the trial judge err in admitting evidence of the appellant’s
sexual abuse of the complainants at places and times not
encompassed within the indictment? If the evidence was
admissible, were the trial judge’s instructions on that evidence
adequate?
[82] The jury heard evidence that the appellant took the
complainants to the Bahamas, with the permission of their
parents, and that he raped both complainants while in the
Bahamas. Although the trip took place during the time frame set
out in the indictment (March 1979 – October 1979), none of the
charges did, or could, allege an offence that had occurred in the
Bahamas.
[83] The jury also heard evidence that the complainants went to
live with the appellant in New Brunswick in March 1980 and stayed
with him for about a year. After a brief visit with her parents,
D.D. returned to New Brunswick with the appellant in March 1981
and lived with him for parts of the next three years. The jury
heard evidence that the appellant sexually abused both
complainants in New Brunswick. New Brunswick was also beyond the
geographical ambit of the indictment and the alleged abuse in New
Brunswick took place after the time frame set out in the
indictment.
[84] When the Crown first began to lead evidence of the events in
New Brunswick, the trial judge excused the jury to canvass the
admissibility of that evidence and the evidence of the events in
the Bahamas with counsel. He was concerned about admitting
evidence of sexual misconduct which was not the subject of a
charge in the indictment. Counsel agreed that the evidence was
admissible. Counsel advised the trial judge that the
admissibility of the evidence had been discussed at pre-trial
conferences and that no objection was taken to the evidence. The
evidence had also been admitted without objection in earlier
proceedings that resulted in a mistrial (for unrelated reasons).
Crown counsel pointed out that on the previous trial, the
evidence of the events in the Bahamas and New Brunswick had been
relied on by the defence. The trial judge accepted counsels’
position that the evidence was admissible and immediately
cautioned the jury as to its limited use.
[85] On appeal, Mr. Wright resiles from the position taken by
counsel at trial for the appellant and contends that none of this
evidence was admissible. I am somewhat uncertain as to the exact
nature of his submission. Mr. Wright may be submitting that the
jury should have heard nothing about events involving the
appellant and the complainants that were outside of the place and
dates set out in the indictment. If this is his contention, it
amounts to a submission that evidence which was vital to the
defence should not have been admitted. The defence at trial was
that the complainants’ conduct towards the appellant over many
years was entirely inconsistent with their allegations of sexual
abuse made some ten years after the fact. The long-term
relationship between the appellant and the complainants was a
mainstay of the defence position from the start to the end of the
trial. Counsel argued that the complainants’ willingness to go
to the Bahamas with the appellant, the fun they had with him in
the Bahamas, their determination to move to New Brunswick to join
the appellant, and their desire to stay there for a long time,
belied any suggestion that they had been abused by the appellant
during the time frame covered by the indictment.
[86] The defence also used the complainants’ evidence of the
sexual activities in the Bahamas and New Brunswick for a second
purpose. It argued that their evidence defied belief. For
example, the defence elicited evidence from D.S.D. that she had
sexual intercourse with the appellant one last time in New
Brunswick before she returned home in March 1981, even though by
that time she hated the appellant, was anxious to go home, and
wanted nothing more to do with him or his horses. No doubt, the
defence hoped that the jury would find that at least some of the
complainants’ evidence concerning the sexual activities in the
Bahamas and New Brunswick was untrue and would conclude that the
complainants’ evidence going directly to the allegations in the
indictment was tainted by those falsehoods and should not be
believed.
[87] The evidence of the trip to the Bahamas and the “New
Brunswick” evidence was crucial to the defence and could not have
been excluded without gutting the defence.
[88] Alternatively, Mr. Wright may be submitting that the defence
was entitled to elicit evidence of the events in the Bahamas and
in New Brunswick, but that the Crown could not elicit evidence of
the sexual misconduct which occurred in those venues or which was
beyond the time frame in the indictment. On this submission, the
jury was entitled to hear about the long-term relationship
between the appellant and the complainants, and all the fun the
complainants had in the Bahamas and New Brunswick, but not about
the sexual abuse.
[89] There is no merit to that position. If the defence chose to
rely on evidence of the trip to the Bahamas and the “New
Brunswick” evidence to support its position that the relationship
between the complainants and the appellant was entirely
inconsistent with any abuse during the relevant time frame, the
complainants had to be allowed to describe the events which
occurred in those places and shed light on the nature of their
relationship with the appellant. The defence could not choose to
put a fact in issue and then argue that evidence which was
probative on that issue should be excluded because it involves
allegations of misconduct by the accused. The rules of evidence
do not permit the accused (or the Crown) to present a one-sided
version of events to the trier of fact: R. v. Mills, supra, at
pp. 363-4 (S.C.C.). This jury could not hope to arrive at the
truth regarding the nature of the relationship between the
complainants and the appellant if the complainants’ description
of that relationship was censored so as to completely distort
their version of the nature of that relationship.
[90] It is now well established that evidence of discreditable
conduct7 by an accused is admissible if its probative value to a
fact in issue outweighs its potential prejudicial effect: R. v.
Arp (1998), 129 C.C.C. (3d) 321 at 340, 344-5 (S.C.C.); R. v.
B.(L.); R. v. G.(M.A.) (1997), 116 C.C.C. (3d) 481 at 489 (Ont.
C.A.), leave to appeal to S.C.C. refused, [1997] S.C.C.A. No.
524. The position advanced by the defence at trial will be an
important consideration in determining the facts in issue and
will assist in assessing the potential probative value of the
discreditable conduct evidence: R. v. B.(L.), supra, at p.515.
In this case, the defence position made the case for the
admission of the accused’s sexual activity with the complainants
in the Bahamas and New Brunswick overwhelming.
[91] In holding that the evidence was properly admissible, in the
light of the position advanced by the defence, I do not suggest
any criticism of the conduct of the defence at trial. The close,
long-term, ongoing relationship between the complainants and the
appellant during and after the alleged assaults and their
willingness, if not determination, to be in his company, afforded
support for the defence position that the assaults did not occur.
It was tactically appropriate, if not essential, for the defence
to make the relationship between the complainants and the
appellant during and after the time frame in the indictment a
central feature of the case. It was also reasonable for the
defence to rely on the complainants’ evidence concerning the
sexual activity in the Bahamas and New Brunswick in an effort to
undermine the overall credibility of the complainants. The fact
that the evidence did not have that effect on this jury cannot
condemn the strategy as inappropriate, nor can it open the door
in this court to an attack on the admissibility of the evidence
that ignores the manner in which the entire trial was conducted.
The evidence was admissible.
[92] Mr. Wright also contends that if the evidence was
admissible, the trial judge’s instructions were inadequate. He
submits that the trial judge was obliged to tell the jury that
the evidence could not be used as circumstantial evidence that
the appellant committed the offences charged in the indictment
and that they could not use the evidence to infer that the
appellant was the type of person who was disposed to commit the
crimes alleged against him. I regard both submissions as part
and parcel of the same claim. Mr. Wright contends that it was
non-direction amounting to error in law to fail to caution the
jury against resort to “propensity reasoning” to infer guilt.
Before addressing this submission, I will summarize the
instructions given by the trial judge.
[93] Shortly after the evidence of the trip to the Bahamas was
first adduced, the trial judge, after hearing submissions from
counsel, cautioned the jury that it could not convict the
appellant based on evidence of sexual conduct in the Bahamas. He
told the jury that the evidence could be used for “one purpose
only.” He went on to explain that he had admitted the evidence
so that the jury could have “the total picture of the alleged
relationship between this complainant and the accused” to assist
them in assessing the credibility of the complainants. No
objection was taken to this instruction.
[94] In his final instructions, the trial judge told the jury
that they could not convict the appellant based on sexual conduct
in the Bahamas or in New Brunswick. He went on to say:
As I said you have heard evidence of incidents
after October 31st, 1979 as part of the
narrative as an attempt to portray the entire
relationship between the complainants and Mr.
Batte, to provide you with a framework to enable
you to better determine the credibility of the
complainants.
Again, the defence says the fact that
the girls looked forward to and enjoyed the
Bahamas’ trip and actively lobbied their
parents to be permitted to go to New
Brunswick belies their stories that they were
being regularly sexually abused by Mr. Batte.
I instruct you that you may not convict Mr.
Batte of anything that occurred after July
31st, 1979 with respect to count one, or
after October 31st 1979 with respect to the
other four counts. You may use the evidence
of [the complainants] of events after these
dates only to assess their credibility.
[95] No objection was taken to this instruction. In my view, it
was appropriate and it captured in an even-handed manner both the
Crown and defence position with respect to the evidence of the
events in the Bahamas and New Brunswick. As indicated earlier in
these reasons, the defence strongly urged the jury to find that
the complainants’ conduct during their long relationship with the
appellant was entirely inconsistent with the allegations they
made more than 10 years later and that much of their evidence
concerning sexual activity in the Bahamas and New Brunswick was
incredible. The Crown relied on the same evidence as being
entirely consistent with the complainants’ description of the
relationship with the appellant during the time frame in the
indictment. In effect, it was their evidence that throughout the
relationship he used the many benefits he could bestow on them as
a means of keeping the complainants under his control so that he
could use them for his sexual gratification. The trial judge’s
instructions concerning the evidence of the events in the Bahamas
and New Brunswick mirrored the manner in which the parties put
their respective cases to the jury. I see no error in what he
said. I turn now to the question of whether he said enough.
[96] Counsel’s argument regarding the trial judge’s failure to
caution the jury against resort to propensity reasoning assumes
that propensity reasoning could have no proper role in the jury’s
analysis of the evidence. I do not accept that assumption.
While a jury must never convict based on a finding that an
accused engaged in misconduct other than that alleged, and must
never convict based on an assessment that the accused is a bad
person, there will be cases in which a more focussed form of
propensity reasoning is entirely appropriate. I think this was
such a case.
[97] Propensity reasoning involves two inferences. First, one
infers from conduct on occasions other than the occasion in issue
that a person has a certain disposition (state of mind). Second,
one infers from the existence of that disposition that a person
acted in a certain way on the occasion in issue: R. v. Watson
(1996), 108 C.C.C. (3d) 310 at 325 (Ont. C.A.). Assuming the
evidence can reasonably support both inferences, there is nothing
irrational or illogical in using propensity reasoning to infer
that an accused committed the act alleged. Viewed in this way,
the evidence of the accused’s discreditable conduct is a form of
circumstantial evidence and meets the legal relevance criterion:
R. v. Arp, supra, at pp. 338-9.
[98] Despite its relevance, evidence that depends on propensity
reasoning for its admissibility is usually excluded because its
potential prejudicial effect outweighs its probative value: R.
v. Arp, supra, at p. 339. Often the evidence has little
probative value because either or both of the necessary
inferences needed to give the evidence probative force are
tenuous. For example, the inference that an accused has a
certain disposition based on evidence of a single discreditable
act could be so tenuous as to have virtually no probative value.
Similarly, where discreditable evidence is probative of a
disposition, the inference that an accused acted in accordance
with that disposition on the occasion in question will often be a
very weak one. For example, evidence that an accused repeatedly
abused “A” would not, standing alone, support the inference that
he was disposed to abuse “B” on the occasion alleged in the
indictment.
[99] Even where the discreditable conduct is such as to
reasonably permit the inferences necessary to give propensity
reasoning probative value, that evidence can still be misused by
the jury. Often, evidence which can support propensity reasoning
will have a much greater potential to improperly prejudice the
jury against the accused. As Sopinka J. observed in R. v. D.
(L.E.), [1989] 2 S.C.R. 111 at 127-28, a jury may assume from the
evidence of discreditable conduct that the accused is a bad
person and convict on that basis, or they may convict in order to
punish the accused for the discreditable conduct, or they may
become embroiled in a determination of whether the accused
committed the alleged discreditable acts and lose sight of the
real question – did he commit the acts alleged in the indictment?
The risk that the jury will be led astray by evidence of
discreditable conduct usually overcomes the probative force of
that evidence where the probative force rests entirely on
propensity reasoning.
[100] Propensity reasoning also imperils the overall fairness
of the criminal trial process. It is a fundamental tenet of our
criminal justice system that persons are charged and tried based
on specific allegations of misconduct. If an accused is to be
convicted, it must be because the Crown has proved that
allegation beyond a reasonable doubt and not because of the way
the accused has lived the rest of his or her life. An accused
must be tried for what he or she did and not for who he or she
is. The criminal law’s reluctance to permit inferences based on
propensity reasoning reflects its commitment to this fundamental
tenet: McCormick on Evidence, 5th ed., p. 658; R. Lempert, S.
Saltzburg, A Modern Approach to Evidence (1982) at p. 219.
[101] The wisdom of excluding evidence which relies entirely
for its cogency on propensity reasoning is beyond doubt. In most
situations, the evidence will provide little or no assistance in
determining how an accused acted on the occasion in issue. It
may, however, leave the jury with the clear sense that this
accused is a bad person who merits punishment or at least does
not merit the benefit of any reasonable doubt.
[102] The criminal law’s resistance to propensity reasoning
is not, however, absolute. There will be situations in which the
probative force of propensity reasoning is so strong that it
overcomes the potential prejudice and cannot be ignored if the
truth of the allegation is to be determined. The probative force
of propensity reasoning reaches that level where the evidence, if
accepted, suggests a strong disposition to do the very act
alleged in the indictment. For example, if an accused is charged
with assaulting his wife, evidence that the accused beat his wife
on a regular basis throughout their long marriage would be
admissible. Evidence of the prior beatings does much more than
suggest that the accused is a bad person or that the accused has
a general disposition to act violently and commit assaults. The
evidence suggests a strong disposition to do the very act in
issue – assault his wife. In such cases, the jury is permitted
to reason, assuming it accepts the evidence of the prior
assaults, that the accused was disposed to act violently towards
his wife and that he had that disposition on the occasion in
issue. The existence of the disposition is a piece of
circumstantial evidence that may be considered in deciding
whether the accused committed the alleged assault.
[103] The admissibility of prior assaults as evidence that
the accused assaulted the same person on the occasion in issue is
well established in the authorities: e.g. R. v. F. (D.S.)
(1999), 132 C.C.C. (3d) 97 (Ont. C.A.); McCormick on Evidence,
supra, 665-66. While the authorities refer to the evidence as
relevant to demonstrate motive or animus, these labels merely
describe the disposition that is established by the discreditable
conduct evidence. They do not detract from the fact that the
evidence derives its probative force through propensity
reasoning: R. Lempert, S. Saltzburg, A Modern Approach to
Evidence, supra, 226-27, 229-30.
[104] In R. v. B.(L.), supra, my colleague, Charron J.A.
provided an insightful analysis of the role played by propensity
reasoning in the determination of the admissibility of
discreditable conduct by the accused. She first observed,
relying on R. v. B. (C.R.), [1990] 1 S.C.R. 717 at 727 that
propensity reasoning underlies the circumstantial value of
evidence of discreditable conduct in most cases where that
evidence is received. She then said, at pp. 503-504:
… propensity reasoning in and of itself is
not prohibited. Indeed, it is usually inevitable,
given the nature of the evidence and the reason
for its admission. …
It is propensity reasoning that is based
solely on the general bad character of the
accused, as revealed through this evidence of
discreditable conduct, which is prohibited.
[Emphasis added.]
[105] In describing how propensity reasoning should be
addressed in deciding whether the evidence was sufficiently
probative to merit its reception, Charron J.A. said, at pp.504-
505:
Therefore, in assessing this aspect of the
probative value of the evidence, it is
important to circumscribe the meaning of
‘disposition’ or ‘propensity’, much in the
same way as the notion of prejudice described
above. The forbidden line of reasoning is
that which leads to the conclusion that the
accused committed the offence with which he
is charged based, not on the strength of
the evidence which has a connection to the
issues in the case, but rather, on the strength
of the evidence that he is “a bad person” who
would have a tendency to commit this offence.
Admittedly, the distinction may not
always be an easy one to make. But, given
the potentially high prejudice inherent in
evidence of this kind, this requirement is
meant to ensure that only evidence with a
real connection to the case will be admitted
as opposed to evidence that merely adds to
the risk of a wrongful conviction. …
[106] My colleague has captured the crucial issue to be
addressed when determining whether discreditable conduct evidence
should be admitted on the basis of propensity reasoning.
Evidence which tends to show no more than a general disposition
must be distinguished from evidence which demonstrates a
disposition to do the very thing alleged in the indictment. If
the evidence of the discreditable conduct is such that it shows a
strong disposition to do the very act alleged in the very
circumstances alleged, then the evidence has a “real connection”
to the very issue to be decided – did the accused commit the act:8
R. Delisle, “Similar Facts: Here We Go Again” (1999), 20 C.R.
(5th) 38 at 41. The probative potential of propensity reasoning
will be highest where the discreditable conduct is temporally
connected to the allegations in the indictment and involves
repeated acts of the same kind with the same complainant as those
alleged in the indictment.
[107] Some commentators have suggested that R. v. Arp, supra,
is inconsistent with the approach taken by Charron J.A. in R. v.
B. (L.), supra, to propensity reasoning: see V. Maric, “Similar
Fact Evidence: Preferring B. (L.) to Arp”, (1999), 23 C.R. (5th)
57; R. Delisle, “Similar Facts: Here We Go Again”, supra, at 41-
42. I do not agree. Both judgments drew on the same authorities
from the Supreme Court of Canada, particularly R. v. B. (C.R.),
supra. Factually, however, they were very different cases. Arp
was charged with two murders, one of which was committed some two
years before the other. The issue at trial was identity. The
Crown contended that the evidence of the accused’s involvement in
each homicide was admissible to establish his guilt on the other
homicide. It was in this factual context that Cory J. described
propensity reasoning as an improper basis upon which to receive
or use the evidence of one homicide in considering Arp’s guilt on
the other.
[108] The facts in Arp could not reasonably permit the
drawing of either of the inferences necessary for legitimate
propensity reasoning. It is difficult to see how a single act of
violence demonstrates a disposition to act violently, much less a
disposition to act violently in different circumstances some 2 ˝
years earlier or later. The danger of misusing propensity
reasoning by inferring that Arp was a “bad person” who therefore
committed both crimes was, however, great. Consequently, Cory J.
held that if the evidence of one homicide was to be admitted on
the other, the Crown had to demonstrate a legitimate process of
reasoning which would avoid reasoning through propensity. This
led Cory J. to a consideration of whether the circumstances were
such as to permit, apart entirely from any inference to be drawn
from propensity, the inference that it was likely that the two
acts were committed by the same person. His summary of the
elements of an appropriate charge where discreditable conduct is
admitted (at p. 356) is also directed to cases, like R. v. Arp,
supra, in which propensity reasoning is inappropriate.
[109] R. v. Arp, supra, does not hold that propensity
reasoning is never permissible. Cory J., at p. 339, recognized
that evidence of propensity is “usually inadmissible”. He
strongly reaffirmed the dangers associated with that form of
reasoning and reiterated the exclusionary rule where inferences
based on propensity reasoning are simply too weak to overcome the
prejudice associated with drawing inferences based on propensity.
[110] The facts in R. v. B. (L.), supra, were very different
than those in R. v. Arp. In R. v. B. (L.), supra, the Crown
alleged that the accused had sexually abused his stepdaughter
over a prolonged period of time while she was under his care and
control. The Crown sought to lead evidence from three other
witnesses (two natural daughters of the appellant and a younger
sister of his first wife) who would testify that while they were
under the appellant’s care and control they were abused in a
similar manner over a prolonged period of time. The trial judge
admitted the evidence in part because it demonstrated “a system.”9
The appellant attacked the admissibility on the basis that the
trial judge had used propensity reasoning in relying on the
evidence of the three other witnesses to support the
complainant’s evidence.
[111] After referring to the trial judge’s reasons, Charron
J.A. said, at p. 511:
The appellant is correct that this reasoning
involves considerations of propensity in the
sense that the appellant’s prior misconduct,
in so far as it showed a tendency to act in a
particular way, was relied upon by the trial
judge to support his finding that the appellant
acted again in this fashion in committing the
offence. However, as discussed earlier, this
does not constitute an impermissible inference.
It is simply consistent with the underlying
proposition that gave the evidence its probative
value in the first place. Nowhere in the trial
judge’s reasons is there any suggestion that he
drew any inference of guilt from the general bad
character of the accused reflected by his prior
misconduct.
[112] In R. v. B. (L.), supra, as in this case, the issue was
whether sexual assaults occurred. The evidence of the accused’s
sexual misconduct towards the other young girls in his charge was
sufficiently connected to that issue to make the inferences to be
drawn from propensity reasoning sufficiently cogent to warrant
the admissibility of the evidence and the use of that reasoning.
This was so even though the evidence, coming from three other
witnesses, carried the potential prejudice inherent where
evidence of discreditable conduct is given by witnesses other
than the complainant. In the present case, the cogency of the
propensity reasoning was arguably stronger since the misconduct
involved the same complainants. The risk of prejudice was
reduced since the evidence came from the same complainants and
there was no risk that their credibility would be enhanced by the
evidence of third parties: R. v. F. (D.S.), supra, at 108.
[113] Neither the Crown nor the defence asked the trial judge
to instruct the jury for or against the use of propensity
reasoning. The trial judge approached the evidence, as counsel
had, as going to the credibility of the complainants. The trial
judge could have told the jury that they should not infer from
the evidence of the appellant’s discreditable conduct that he was
the type of person who would engage in the criminal activity
alleged against him: R. v. M. (B.) (1998), 130 C.C.C. (3d) 353
at 366 (Ont. C.A.). Had he elected to warn against the misuse of
propensity reasoning, however, the trial judge would also have
had to instruct the jury on its proper use. He would have had to
instruct the jury that if they accepted the complainants’
evidence, they could infer that the appellant had consistently,
over a prolonged period, extracted sexual services from the
complainants while they were under his control as his entitlement
in return for the benefits he bestowed upon them. The trial
judge would further have had to instruct the jury that if they
were satisfied that the appellant had consistently extracted
those services, they could infer that the appellant had done the
same thing during the time frame set out in the indictment and
could consider that evidence in determining whether the Crown had
proved the allegations in the indictment beyond a reasonable
doubt.
[114] I have no doubt that, on balance, an instruction which
explained both the proper and improper uses of propensity
reasoning would have operated against the appellant’s interests.
I see no error in the alleged non-direction.
Did the trial judge err in instructing the jury that it could ask
itself why the complainants would fabricate these allegations and
subject themselves to the rigors of the trial process?
[115] The impugned passage occurred during the trial judge’s
one paragraph statement of the position of the Crown in his
initial instructions. He said:
… The Crown says they [the complainants] were
entirely believable and convincing. You should
accept their evidence and find beyond a reasonable
doubt Mr. Batte guilty of all counts. Why would
they tell stories of this nature if they were not
true? Why put themselves through the process of a
trial and the aggravation of cross-examination if
what they were saying was not true, argues the
Crown. [Emphasis added.]
[116] This reference followed a more detailed review of the
position of the defence. The defence position included the
argument that for some reason the complainants were motivated to
make false accusations against the appellant. Counsel had
suggested that the complainants had been angry because the
appellant had withheld part of their wages while they were
working for him or that they were upset because he had sold one
of them a lame horse shortly after she was married.
[117] In referring to the complainants’ motive to fabricate
as part of the position of the defence, the trial judge echoed
defence counsel’s closing address to the jury. Counsel had said
to the jury:
Now, the process of finding facts, this fact
finding process is applying your experience of
life and your experience with people and their
motivations for what is said. [Emphasis added.]
[118] Later, counsel dealt in more detail with what he
alleged were the motivations of the complainants. He said:
… Well, if you start any kind of discussion about
motivation or why people are doing things, I mean,
it is almost by definition speculative because none
of us walk around with a glass plate so that we can
look inside and see things. The best we can do is
guess because we don’t know what makes people tick.
Sometimes people themselves don’t know what makes
them tick. We can only speculate. Well, there is
obviously hatred because they worked hard and had to
give half of their money from what they earned.
There was the horse deal. You remember [D.D.] and
her husband were furious and the friendship fell
apart. I mean, things do happen. People fall out
of friendship, car deals, horse deals. We know that
[D.S.D.] wrote Mr. Batte a letter after that lunch
with her mother saying, ‘Stay away’. But perhaps it
is because it is so speculative, that the law basically
it doesn’t require either my friend or my self to prove
a motive. It doesn’t require that we come up with an
iron clad reason as to what propelled these people.
But whatever propelled them, is they want him real bad.
The sense you get is that they were working at it.
[Emphasis added.]
[119] Clearly, it was central to the defence position at
trial that the complainants had developed a strong hatred for the
appellant for some reason (two were suggested), and that this
hatred motivated the complainants to falsely accuse the
appellant. The question of whether the complainants had a motive
to falsely accuse the appellant, and if so how that should affect
their credibility, was squarely before this jury.
[120] Questions directed to show that a witness has a motive
to fabricate evidence are admissible, as is evidence from other
witnesses that a witness had a motive to fabricate evidence: R.
v. M. (B.), supra, at p. 373; R. v. P.(H.P.) (1996), 112 C.C.C.
(3d) 140 at 150 (Man. C.A.); P. McWilliams, Canadian Criminal
Evidence, para 37:20530. Juries are told to use their common
sense and combined life experience in assessing credibility. It
is difficult to think of a factor which, as a matter of common
sense and life experience, would be more germane to a witness’
credibility than the existence of a motive to fabricate evidence.
Similarly, the absence of any reason to make a false allegation
is a factor which juries, using their common sense, will and
should consider in assessing a witness’ credibility.10
[121] What must be avoided in instructing a jury is any
suggestion that the accused has an onus to demonstrate that a
complainant has a motive to fabricate evidence, that the absence
of a demonstrated motive to fabricate necessarily means that
there was no motive, or finally, that the absence of a motive to
fabricate conclusively establishes that a witness is telling the
truth. The presence or absence of a motive to fabricate evidence
is only one factor to be considered in assessing credibility.
[122] The Crown did not make the submission attributed to it
by the trial judge in the impugned passage. It was, however,
implicit in the Crown’s case that the complainants had no motive
to fabricate their evidence. The complainants had denied that
they were motivated by the events suggested to them by defence
counsel, there was no evidence from any other witness concerning
their motives and, in any event, the prior events referred to by
counsel as supplying the motive seemed relatively trivial and
were far removed in time from the making of the complaints.
[123] The question of why these complainants would make these
allegations so many years after the fact in the face of what
appeared to be a long-term warm and friendly relationship with
the appellant had to be in the mind of the jury. It was open to
the trial judge to tell the jury that it was entitled to consider
what motive, if any, the complainants had to falsely accuse the
appellant of sexual abuse. It was further open to him to
instruct the jury that if they concluded there was no such
motive, it was open to them to consider why the complainants
would make the allegation and expose themselves to the rigors of
cross-examination on very personal matters. In doing so, the
trial judge would be doing nothing more than telling the jury to
use their common sense.
[124] The impugned passage does not suggest that the
appellant had the onus of demonstrating that the complainants had
a motive to fabricate false allegations. The trial judge had
repeatedly told the jury that the Crown had the onus throughout.
He did so in his general instructions and in reference to the
specific elements of each of the offences in each of the five
counts.
[125] If the trial judge deemed it appropriate to refer to
the absence of a motive to fabricate as part of the case for the
Crown, it would have been preferable for him to remind the jury
(as counsel for the appellant had done) that motives sometimes
remain hidden and that the absence of a motive to fabricate
evidence was not determinative of the truth of the complainant’s
evidence. The second imperfection was overcome by the trial
judge’s general instructions on the assessment of credibility.
He made it clear that that assessment was a holistic task
requiring consideration of numerous factors. I do not think that
the challenged passage would have led the jury to disregard those
instructions and make a finding of credibility based entirely on
an assessment of whether the complainants had a motive to
fabricate their evidence.
[126] Judges seldom tell juries everything that which with
the benefit of hindsight and close appellate scrutiny they could
properly have included in their instructions. Perfection is, of
course, not the applicable standard. Considering the
instructions in their entirety, I do not think the instruction
led the jury astray from applying its common sense to the
question of why the complainants would make the allegations they
did, and the significance of the answer to that question, to
their overall assessment of the credibility of the complainants.
Did the trial judge’s supplementary instructions result in a
miscarriage of justice?
[127] Counsel for the appellant first argues that the trial
judge advanced personal opinions on the evidence in his
supplementary instructions. He did no such thing. The trial
judge reviewed certain parts of the evidence in the context of
providing further amplification of the positions of the Crown and
the defence. After reviewing several submissions made by the
Crown and the defence, the trial judge said:
Again, I caution you strongly these are positions
taken by either side. They are not facts until you
find them to be facts. Weigh them in your
deliberations carefully, particularly with regard
to the issue of credibility and make what conclusions
and give what weight to them you think is necessary.
[128] Counsel for the appellant next argues that the trial
judge effectively associated himself with the Crown by providing
a Crown reply to the arguments raised by the defence and
summarized by the trial judge in his initial instructions.
Counsel submits that the supplementary instructions amounted to a
Crown reply argument disguised as further instructions for the
jury. Counsel submits that the trial judge compounded this error
by raising arguments that had not been advanced by the Crown in
its closing address. Trial counsel for the appellant made the
same submissions.
[129] I would reject these submissions as unsupported by the
record. In his initial charge, the trial judge presented the
position of the defence and Crown in summary form. He put the
defence position by way of eight points that the defence
contended were important considerations in determining the
credibility of the complainants. The trial judge then put the
position of the Crown in a single paragraph filling slightly less
than one half page in the transcript.
[130] Neither counsel was entirely satisfied with the trial
judge’s review of their respective positions. Defence counsel
wanted additional points in support of his position put to the
jury and also identified a factual error the trial judge had made
in his review of the evidence in support of one argument advanced
by the defence. Crown counsel wanted the trial judge to put the
Crown’s position in respect of the points that the trial judge
had reviewed when describing the position of the defence.
Defence counsel then argued that the trial judge should limit any
further charge to the correction of the one factual error he had
made in the initial charge.
[131] The trial judge did not accept entirely the position of
either counsel. He elected to correct the factual error and to
refer to some of the additional arguments that counsel had put
forward in their objections.
[132] In his supplementary instructions, the trial judge
corrected the factual error he had made and referred to two
additional arguments in support of the defence position. He then
referred to four submissions relied on by the Crown relating to
the parts of the evidence with respect to which the trial judge
had previously summarized the defence position. The trial judge
specifically reminded the jury of the defence position in
relation to one of the Crown’s submissions that he reviewed. The
trial judge finished his supplementary instructions, which took
up four pages of the transcript, with the following direction:
Again, one last admonition, anything I have said now
is not to be given any greater or lesser weight than
what I said to you in my general charge. You are to
take what I have said to you now as having been part
of my general charge.
[133] The jury delivered their verdicts some three hours
after the supplementary instructions were given.
[134] A trial judge is obligated to put the respective
positions of the Crown and defence to the jury and to relate
those positions to the evidence adduced at trial. He or she must
strive to do so in a clear and balanced fashion. Ideally, a
trial judge will give the necessary instructions as part of the
initial charge so as not to risk giving the position of one party
prominence over that of the other party. If, however, the trial
judge is satisfied that the position of one or both parties has
not been adequately addressed in his initial charge, the trial
judge must correct that inadequacy by way of supplementary
instructions. In doing so, he or she will be cautious to
preserve the fairness of the trial.
[135] I cannot fault the trial judge for trying to assist the
jury by amplifying on his initial instructions with respect to
the position of both parties. He did so in a proper manner. The
mere fact that he addressed four points in favour of the Crown
and two in favour of the defence is of no moment. The trial
judge made it abundantly clear that his supplementary
instructions should be taken as part of his overall instructions
and had no greater or lesser importance than his initial
instructions.
[136] I also find no basis for the contention that the trial
judge introduced new arguments in the course of his supplementary
instructions. Each of the arguments he reviewed flowed
naturally, if not obviously, from the evidence.
[137] If any criticism can be made of the trial judge’s
supplementary instructions, it is that they were unnecessary.
Even if that criticism is well founded, it lends no support to
the appellant’s contention that those instructions resulted in a
miscarriage of justice.
The non-direction with respect to the absence of a recent
complaint.
[138] The trial judge did not instruct the jury that the
complainants’ failure to make a timely complaint could be used by
it to discredit their evidence. His failure to do so is not
surprising. No one suggested that the instruction should be
given. This issue first arose in Mr. Wright’s written
submissions made after oral argument on the appeal.
[139] Crown counsel argued that as the issue was not
litigated at trial, it should not be considered on appeal. There
is merit to the Crown’s position, however, I am satisfied that as
a matter of law, the trial judge was not required to give the
instruction. I need not decide whether, assuming the submission
had legal merit, it could be raised for the first time at this
stage of the proceeding.
[140] In the 19th century, the common law developed a special
rule of evidence applicable to sexual assaults against women
known as the doctrine of recent complaint. It remained operative
in Canada until 1983. The doctrine allowed the Crown to lead
evidence from the complainant and others of a timely complaint
made by the complainant concerning the sexual assault. The
admissibility of this evidence was premised on the belief that
women who were sexually assaulted would raise “a hue and cry”
against their assailant at the first reasonable opportunity. The
rationale for the doctrine was explained in R. v. Kribs, [1960]
S.C.R. 400 at 405:
The principle is one of necessity. It is founded on
factual presumptions which, in the normal course of
events, naturally attach to the subsequent conduct
of the prosecutrix shortly after the occurrence of
the alleged acts of violence. One of these
presumptions is that she is expected to complain upon
the first reasonable opportunity, and the other,
consequential thereto, is that if she fails to do so,
her silence may naturally be taken as a virtual
self-contradiction of her story.
[141] As a corollary to the rule permitting evidence of
recent complaint, a trial judge was required to instruct the jury
that the absence of any evidence of a recent complaint told
against the truthfulness of the complainant’s evidence: R. v.
Boyce (1975), 23 C.C.C. (2d) 16 at 32-34 (Ont. C.A.).
[142] The doctrine rested on two assumptions. First, it was
assumed that complainants in sexual assault cases were more
likely to fabricate allegations than other complainants. The
Crown was therefore allowed to fortify the complainants’
allegation with evidence that would normally be rejected as
unnecessary self-serving hearsay. Second, the recent complaint
doctrine assumed that all victims of sexual assaults would react
to the assault in the same way and make a complaint at the first
reasonable opportunity. The veracity of those who did not
respond as they should was automatically suspect.
[143] By the 1970’s, widespread dissatisfaction with many of
the statutory and common law rules applicable to the prosecution
of sexual offences had attracted the attention of Parliament. In
1983, Parliament undertook an extensive overhaul of much of the
law relating to these offences.11 The 1983 amendments and others
which followed have been characterized as attempts by Parliament
to modernize and sensitize the criminal law’s approach to sexual
offences: R. v. Cuerrier, [1998] 2 S.C.R. 371 at 381, per
L’Heureux-Dubé J. concurring.
[144] Among the many changes to the existing law made by the
1983 amendments was the enactment of s. 246.5 [now s. 275] of the
Criminal Code. It read:
The rules relating to evidence of recent complaint in
sexual assault cases are hereby abrogated.
[145] The annulment of the law relating to recent complaint
was a clear rejection by Parliament of the two assumptions
underlying the common law doctrine. By repealing this judge-made
rule, Parliament declared that it was wrong to suggest that
complainants in sexual cases were inherently less trustworthy
than complainants in other kinds of cases, and that it was wrong
to assume that all victims of sexual assaults, whatever their age
and whatever the circumstances of the assault, would make a
timely complaint. Both assumptions reflected stereotypical
notions which demeaned complainants (most of whom were female)
and ignored the realities of human experience. It made no sense
to suggest that all persons subjected to a traumatic event such
as a sexual assault could be expected to react in the same way
and make a timely complaint: R. v. W.(R.), [1992] 2 S.C.R. 122
at 136. Indeed, that assumption is now so obviously wrongheaded
that it is difficult to believe that it was ever part of the
accepted wisdom of the common law.
[146] By removing the doctrine of recent complaint,
Parliament sought to eliminate a rule which treated complainants
in sexual assault cases as second-class persons. In addition,
Parliament sought to dispel an assumption which had a real
potential to mislead the trier of fact and distort the search for
the truth. The abrogation of the rule struck a blow for both
equality and the truth-finding function of the criminal trial
process.
[147] Mr. Wright, for the appellant, does not take issue with
the reasons behind the abolition of the common law doctrine of
recent complaint. He submits, however, that at the same time
Parliament chose to abolish the doctrine as it related to
offences committed after the 1983 amendments came into force,
Parliament also legislated so as to preserve the doctrine for
offences committed before the amendments became law. He attempts
to reconcile these apparently contradictory measures by asserting
that Parliament recognized that accused persons charged with
offences that occurred prior to the 1983 amendments had a vested
right to the application of the evidentiary laws as they existed
prior to the amendment. This vested right extended to rules
which Parliament had specifically declared to be unworthy of
continued existence.
[148] In support of his position, Mr. Wright has undertaken a
painstaking march through the blizzard of statutory amendments to
the sexual offence provisions of the Criminal Code enacted since
1983. The linchpin of his submission, however, is s. 33 of the
1983 amendments. That section, one of the transitional
provisions in the statute, provided:
An offence committed prior to the coming into force
of this Act against any provision of law affected by
this Act shall be dealt with in all respects as if
this Act had not come into force.
[149] Section 33 recognized that the Crown could prosecute
crimes, like rape and indecent assault, that had occurred prior
to the 1983 amendments, even though the Criminal Code sections
creating those offences had been repealed: see Interpretation
Act, R.S.C. 1985, c. I-21, s. 43. Mr. Wright argues that the
phrase “shall be dealt with in all respects as if this Act had
not come into force” preserved the pre-amendment evidentiary
rules pertaining to rape and indecent assault. He submits that
the very general language of s.33 rendered Parliament’s specific
abrogation of the common law doctrine of recent complaint in
sexual assault cases inapplicable to prosecutions for pre-
amendment offences. It is his position that s. 33 preserved the
common law doctrine of recent complaint as it stood at the time
the amendments came into force.
[150] The validity of this submission depends on three
propositions:
Section 33 reaches common law rules of evidence and directs
that in prosecutions for offences which predated the amendments
those rules continue to apply and take precedence over any
statutory amendments to those rules affected by the 1983
amendments.
Section 33 not only preserved the common law rules of
evidence and specifically the doctrine of recent complaint, but
“froze” those rules as of the date of the 1983 amendments and
foreclosed judicial alternation of the doctrine as it applied to
prosecutions for pre-amendment offences.
The common law doctrine of recent complaint as it stood at
the time of the amendments continued to apply to pre-offence
amendments even after the repeal of s.33 by the Revised Statutes
of Canada 1985 Act, S.C. 1987.
[151] I have difficulty accepting any of these propositions.12
I find it necessary, however, to address only the second
proposition in detail. Assuming that s. 33 reaches evidentiary
matters and in effect creates an exception to Parliament’s
abrogation of the recent complaint doctrine effected in the same
legislation, I cannot agree that s. 33 also “freezes” the common
law as of the date of the amendments and prevents the courts from
modifying common law rules of evidence as circumstances demand.
[152] Section 33 does not give the recent complaint doctrine
statutory status. Parliament did not declare that the doctrine
should be applied to pre-amendment offences. Rather, it directed
that those offences should be “dealt with in all respects as if
this Act had not come into force.” Reading those words in their
most favourable light from the appellant’s perspective, they can
mean no more than that the common law rules of evidence should
continue to apply as if the Act had not been passed. Common law
rules of evidence are made by the courts. They may be modified
and even eliminated by the courts. Neither the Crown nor the
accused have a vested right to the application of a particular
manifestation of a common law rule of evidence. They are
entitled to have the common law rules of evidence, as they exist
at the time of trial, properly applied by the court. Mr.
Wright’s submissions would not treat the pre-amendment offences
“in all respects” as if the amending legislation had not been
passed, but instead would treat the amendments as giving
statutory force to the common laws respecting recent complaints
as they existed at the time of the amendments.
[153] Prior to the 1983 amendments, it was open to the courts
to modify or abrogate the recent complaint doctrine.13 Section 33
cannot be read as doing anything more than preserving that
authority as it relates to pre-amendment offences by declaring
that those offences shall be “dealt with in all respects as if
this Act had not come into force.” If s.33 touches evidentiary
matters at all, and if it reaches the doctrine of recent
complaint despite the specific abrogation of that rule, it does
no more than preserve its status as a common law rule of evidence
leaving its future form and application to be determined by the
courts.
[154] I have no hesitation in holding that the courts, as the
custodians of the common law of evidence, should follow
Parliament’s lead and abrogate the common law doctrine of recent
complaint in cases not reached by the statutory abrogation of the
rule. As indicated above, the doctrine rests on stereotypical
assumptions that have no basis in fact. Nor is it simply a
harmless relic. It diminishes the inherent worth of complainants
and their right to be treated as individuals before the law. It
also undermines the truth-seeking function of the criminal trial
process. It cannot be argued that the rule serves some other
positive purpose such as promoting an accused’s constitutional
right to a fair trial. No principled basis for preserving the
doctrine in relation to pre-amendment offences has been
suggested. I can think of none.
[155] There is no reason to preserve the common law doctrine
of recent complaint for historical sexual offences some 20 years
after Parliament had abrogated that doctrine as it applied to
offences committed after January 1983. To continue to apply the
doctrine would be to ignore the harm it can do and to undervalue
the dynamic vitality of the common law. The doctrine has no
place in the present day common law rules of evidence. The
approach to be taken in assessing the significance of the failure
of a complainant to make a timely complaint should be the same
regardless of whether the alleged offence occurred before or
after the 1983 amendments came into force. That approach is
described in R. v. M.(P.S.) (1992), 77 C.C.C. (3d) 402 at 408-409
(Ont. C.A.):
… The significance of her failure [the complainant]
to complain should not be the subject of any
presumptive adverse inference based on now rejected
stereotypical assumptions of how persons (particularly
children) react to acts of sexual abuse: … The
importance to the complainant’s credibility of his or
her failure to make a timely complaint will vary from
case to case and will depend on the jury’s assessment
of the evidence relevant to that failure.
[156] It would have been wrong for the trial judge to
instruct the jury as the appellant now contends he should have.
Consequently, his failure to do so was not non-direction
amounting to misdirection.
V
The sentence appeal
[157] The trial judge imposed sentences totalling 4 years.
In doing so, he acknowledged the appellant’s age (60), the
positive pre-sentence report and that:
In all respects except for the incidents that are
the subject of these charges he [the appellant]
appears to be a generous, contributing, model citizen.
[158] The trial judge was also alive to the aggravating
features of the appellant’s crimes. He observed:
However, the charges are a serious violation of a
trust relationship with young, impressionable,
easily-led children. He preyed on their
vulnerability and their love of working with horses.
That they continued to return to the farm and engaged
in gratifying his sexual desires demonstrates his all
powerful hold over them.
[159] I adopt these comments. These were serious crimes
committed repeatedly over several months against young and very
vulnerable victims. A denunciatory sentence was fully justified.
The sentences imposed by the trial judge were well within the
range recognized by this court as appropriate for serious sexual
offences committed against children by persons in a position of
trust. On the record before the trial judge, I see no basis upon
which to interfere with the sentences he imposed.
[160] On the hearing of the appeal, the court received
certain information concerning medical problems which the
appellant has experienced after he was sentenced. He was in a
car accident and suffered a significant shoulder injury which has
left him with a long-term disability. The appellant also had
surgery to remove certain benign tumours from his neck. These
problems, while unfortunate, do not warrant any variation in the
sentence imposed at trial.
VI
[161] I would dismiss the conviction appeal. I would grant
leave to appeal sentence and would dismiss the sentence appeal.
Released: June 13, 2000
“R.M.”
“Doherty J.A.”
“I agree R.R. McMurtry C.J.O.”
“I agree M. Rosenberg J.A.”
_______________________________
1 The jury also convicted the appellant on two charges of having
sexual intercourse with a child under 14. Those convictions were
stayed given the convictions on the rape charges.
*Non-publication orders under s. 486(3) of the Criminal Code were
made at both trials. Those orders remain in effect.
2 The procedural history of the charges is set out by Rosenberg
J.A. in his reasons at paragraphs 15-24.
3 She first recalled that the appellant had changed his pants
shortly before the trial, some fifteen years after the event:
see supra, para. 15.
4 The motion was heard by MacKenzie J. He was not the trial
judge. It was not, however, suggested by the Crown that the
appellant could not challenge the ruling as part of his
conviction appeal: R. v. Litchfield (1993), 86 C.C.C. (3d) 97
(S.C.C.). The appellant also sought production of the
counselling records referable to the third complainant, N., on
the same motion. Given our disposition of that appeal, it is
unnecessary to consider the merits of that application.
5 Although both the common law and statutory scheme require
likely relevance as a condition precedent to production, the
schemes differ in that the common law scheme set down by the
majority in R. v. O’Connor required only a demonstration of
likely relevance in order to require production to the judge.
The statutory scheme following the dissent of L’Heureux-Dubé J.
in R. v. O’Connor, supra, requires likely relevance plus a
demonstration that production is “necessary in the interests of
justice”: Criminal Code s. 278.5(1)(b).
6 It would appear that Ms. Neumin would not be a compellable
witness under the present legislation: see Criminal Code s.
278.4(2).
7 By discreditable conduct, I mean conduct which is outside the
boundaries of the indictment and is capable of reflecting badly
on the accused’s character: see R. v. (B.L.), supra, at p. 488.
8 Evidence of discreditable conduct which is sufficiently
specific to permit the inference that the accused committed the
act in question is akin to evidence of habit rather than evidence
of character or disposition. As the authors of McCormick on
Evidence, supra, at 686-87, indicate, “Character is a generalized
description of a person’s disposition, or of the disposition in
respect to a general trait, such as honesty, temperance or
peacefulness. Habit, in the present context, is more specific.
It denotes one’s regular response to a repeated situation. If we
speak of a character for care, we think of the person’s tendency
to act prudently in all the varying situations of life – in
business, at home, in handling automobiles and in walking across
the street. A habit, on the other hand, is the person’s regular
practice of responding to a particular kind of situation with a
specific type of conduct.” The authors note that evidence of
habit is generally receivable. It should be noted, however, that
some American authorities would not extend the concept of habit
to prior sexual conduct but would limit it to “semi-automatic
acts.”
9 Reference to “system”, one of the long recognized tickets to
admissibility in similar fact evidence cases, is simply another
way of describing a propensity to act in a particular manner in
certain circumstances.
10 The many cases referred to by the appellant in which it has
been held that an accused should not be asked to explain why a
complainant would lie, does not detract from the relevance of
evidence showing the existence or the absence of a motive to
fabricate evidence. That line of questioning is improper for
reasons which have nothing to do with the relevance of evidence
of a motive to fabricate evidence.
11 The amendments were contained in S.C. 1980-81-82-83, Chap. 125.
They came into force as of January 4, 1983. I will refer to this
statute as the “1983 amendments.”
12 With respect to the first proposition, there is a presumption
that the rules of evidence, as they exist at the time of trial,
are the rules to be applied: R. v. E.(A.W.) (1993), 83 C.C.C.
(3d) 462 at 485, per Lamer C.J.C., dissenting on another ground
(S.C.C.). I doubt whether the general language of s. 33,
particularly when considered with a specific abrogation of the
rule of recent complaint in the same legislation, rebuts that
presumption: see R. v. R.(A.) (1994), 88 C.C.C. (3d) 184 at 187
(Man. C.A.). With respect to the third proposition, the only
appellate authority on point is directly against the appellant:
R. v. W.(W.H.) (1998), 490 A.P.R. 14 at 18 (P.E.I. S.C. App.
Div.).
13 In R. v. Timm (1981), 59 C.C.C. (2d) 396 at 401 (S.C.C.), Lamer
J. suggested that the rule should be reconsidered. Parliament
did so in the 1983 amendments. |