DATE: 20050127
DOCKET: C41109
|
RE: |
HER MAJESTY THE QUEEN (Respondent) – and –B. (D.M.) (Appellant) |
|
BEFORE: |
MOLDAVER, GILLESE and JURIANSZ JJ.A. |
|
COUNSEL: |
John Mann |
|
for the appellant |
|
|
Roger Shallow |
|
|
for the respondent |
|
|
HEARD & RELEASED ORALLY: |
January 18, 2005 |
[1] The appellant was convicted of sexual interference, invitation to sexual touching and sexual assault in relation to his stepdaughter, who at all material times was under the age of fourteen years. He was sentenced to eighteen months imprisonment and thirty months probation. He appeals against conviction and sentence.
[2] For reasons that follow, we have concluded that the convictions cannot stand and that a new trial must be ordered.
[3] In our view, the evidence of the probation officer should not have been admitted. It was inextricably tied to the appellant’s guilty plea in respect of the May 13, 2002 offence, a plea that was eventually struck out by the provincial court judge before whom it was entered. Given that the plea itself was inadmissible, we think that as a matter of trial fairness, the appellant’s statement to the probation officer, given in the context of that plea, should also have been excluded.
[4] By way of analysis, assuming that the appellant’s remarks to the probation officer were otherwise admissible, in the circumstances, the admission of the probation officer’s evidence rendered the trial unfair. It should have been excluded in accordance with the principles enunciated by the Supreme Court of Canada in R. v. Harrer (1995), 101 C.C.C. (3d) 193 and this court’s decision in R. v. Milne (1996), 107 C.C.C. (3d) 118.
[5] In coming to that conclusion, we have considered the whole of the circumstances, including the method arrived at by the trial Crown and the trial judge to prevent the jury from hearing of the appellant’s withdrawn guilty plea (something which everyone agreed the Crown could not lead in chief). To accomplish this, Crown counsel agreed that in chief, he would not elicit from the probation officer her occupation, the circumstances under which she spoke to the appellant, or how she had come to be in possession of a police report which detailed the complainant’s allegation regarding the May incident and which she reviewed in total with the appellant.
[6] In our view, the method chosen to keep the withdrawn plea from the jury was doomed to failure. Given the highly damaging admissions made by the appellant to the probation officer, if the appellant had any hope of overcoming them, he had to take the witness stand on his own behalf and explain the circumstances surrounding his meeting with the probation officer and the reason why he had not told her the truth. This would have required him to explain his withdrawn guilty plea, the fact that he was speaking to a probation officer in respect of an impending sentence hearing and the reason why he had falsely admitted the complainant’s allegations in respect of the May incident.
[7] In those circumstances, the defence cannot be faulted for eliciting much of this information from the probation officer in cross-examination. Realistically, the defence had no other choice.
[8] This is but one example of the unfairness that resulted from the admission of the probation officer’s evidence. It is symptomatic of our overriding concern, expressed earlier, that the appellant’s dialogue with the probation officer was inextricably linked to his guilty plea. Simply put, it would not have occurred but for that plea. Once the plea was struck out, it was as if it had never happened. In the circumstances, fairness required that the appellant’s admissions to the probation officer be brought under the same protective umbrella.
[9] The evidence of the probation officer was highly prejudicial, not only in relation to the May offence but in relation to the other offences upon which the appellant was also convicted. In addition to confessing to the May incident, the appellant virtually admitted to being a sex offender in need of treatment. In view of that, we cannot say that the jury’s verdicts on the offences other than the May offence would necessarily have been the same had the probation officer’s evidence been excluded. Accordingly, this is not an appropriate case to apply the curative proviso.
[10] The defence did not allege recent fabrication when cross-examining the complainant. To be precise, this was not a case in which the defence suggested that the complainant had concocted evidence at a certain time for a certain reason and the Crown had evidence to show that on an earlier occasion, the complainant had told someone else the same thing when the reason to concoct did not exist. Rather, the defence simply challenged the complainant’s credibility at large. The distinction is an important one. It is spelled out with clarity in R. v. Campbell (1997), 38 C.C.C. (2d) 6 at p. 20 (Ont. C.A.).
[11] Accordingly, although the complainant’s mother was entitled to relate the specifics of her daughter’s complaint in relation to the May incident as part of the narrative in regard to her own testimony, the jury should have been given a limiting instruction on its use. Specifically, because the mother’s evidence was not admissible to rebut an allegation of recent fabrication, the jury should have been warned that they could not take her evidence into account as supportive of the complainant’s credibility. Unfortunately, the trial judge instructed the jury that the evidence could be used for that purpose.
[12] In addition, the mother gave evidence as to the specific complaints made to her by her daughter in relation to the offences other than the May incident. Because recent fabrication was not raised in relation to those matters, even assuming that the mother’s evidence of the specific complaints was admissible as part of the narrative of her own testimony (which we doubt), it was essential that the trial judge warn the jury about its limited use. That was not done. The trial judge told the jury that the evidence could be used to support the credibility of the complainant. He erred in doing so.
[13] In addition, aspects of the mother’s evidence amounted to impermissible oath helping and other parts of it improperly impugned the appellant’s character. Of specific concern is her evidence relating to the appellant’s bail conditions. That evidence was completely irrelevant but potentially very prejudicial. The jury was informed of bail conditions that were presumptive of the appellant’s guilt.
[14] Crown counsel (not Mr. Shallow) delivered a highly improper closing address. He repeatedly expressed his personal opinion about the appellant’s guilt and his lack of credibility, while vouching for the honesty and integrity of the complainant and her mother. In doing so, he exceeded the bounds of propriety.
[15] In the circumstances, we need not finally decide whether standing alone, the improper closing address would have warranted a new trial. Suffice it to say that Crown counsel’s advocacy was most inappropriate and it should not be repeated.
[16] Other grounds of appeal were raised which we need not address. In the result, we would allow the appeal, quash the convictions, and order a new trial. In view of that disposition, we make no comment about the sentence appeal.
Signed: “M.J. Moldaver J.A.”
“E.E. Gillese J.A.”
“R.G. Juriansz J.A.”