R. v. C.(M.H.), [1991] 1 SCR 763

R. v. C.(M.H.), [1991] 1 S.C.R. 763

 

M.H.C.                                                                                                           Appellant

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

indexed as:  r. v. c.(m.h.)

 

File No.  21302.

 

1991:  January 22;  1991:  April 18.

 

Present:  Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ.

 

on appeal from the court of appeal for british columbia

 

                   Criminal law ‑‑ Charge to jury -- Indecent assault ‑‑ Credibility ‑‑ Complainant's testimony at variance with dates in indictment ‑‑ Recharge possibly leaving impression that discrepancies as to dates unimportant on issue of credibility ‑‑ Similar act evidence introduced supporting allegations ‑‑ Whether the jury was properly charged regarding the evidence as to when the offence may have occurred ‑‑ Whether similar act evidence admissible.

 

                   Criminal law ‑‑ Admissibility -- Similar act evidence -- Indecent assault ‑‑ Credibility ‑‑ Similar act evidence introduced supporting allegations -- Whether similar act evidence admissible.

 

                   Criminal law ‑‑ Evidence -- Duty to disclose -- Introduction as fresh evidence on appeal ‑‑ Witness and her statement suggesting previous inconsistent statement by complainant not disclosed to defence ‑‑ Application to introduce statement as fresh evidence on the appeal rejected ‑‑ Whether the Crown had a duty to disclose statement to the defence ‑‑ Whether application to introduce statement as fresh evidence on appeal should have been rejected.

 

                   Appellant was convicted by a jury of indecent assault of his ex‑wife and sexual assault of the daughter of his subsequent common law wife.  The Court of Appeal upheld the convictions subject to substituting a conviction of gross indecency for the conviction for indecent assault.

 

                   The trial for indecent assault took place over ten years after the alleged events.  The complainant alleged that the appellant had forced her to have sexual intercourse with a dog and her evidence was the only direct evidence against him.  The appellant denied the allegations.  The complainant's credibility and the evidence of similar acts accordingly assumed considerable importance.  The complainant's testimony, however, was somewhat at variance with the dates in the indictment and suggested uncertainty regarding the dates that was perhaps relevant to her credibility.

 

                   The trial judge recognized an error in his initial charge, in that he had told the jury that the Crown must establish that the offences had occurred within the time period set out in the indictment, and attempted to correct it.  The correction, however, created problems in that it may have conveyed the impression that uncertainty regarding the complainant's evidence as to the time of the offences and the fact that they must have occurred within a very limited time frame were immaterial.

 

                   Appellant's subsequent common law spouse testified as to the appellant's sexual requests and fantasies, among them a request that she have sex with a dog, as evidence of his peculiar sexual predilections.  No objection was raised to the admission of this evidence and it was admitted without reference to the rules of evidence governing character and similar act evidence.

 

                   A statement by a former school teacher of the complainant in the sexual assault charge was received after the preliminary inquiry but was not disclosed to the defence.  The statement related that the complainant, notwithstanding a very good student‑teacher relationship, denied everything when asked.  The defence discovered the statement only after the trial.

 

                   At issue in relation to the conviction for indecent assault (reduced to gross indecency) was:  (1) whether the jury was properly charged regarding the evidence as to when the offence may have occurred; and (2) whether the similar act evidence was admissible.  The issues which related to the conviction of sexual assault on the daughter of the common law spouse were:  (1) whether the Crown had a duty to disclose to the defence a statement suggesting a previous inconsistent statement by the complainant; and, (2) whether the accused's application to introduce the above statement as fresh evidence on appeal should have been rejected.

 

                   Held:  The appeal should be allowed.

 

                   The instruction to disregard any variance between the times named in the indictment and the times given in the evidence may have misled the jury on the critical issue of the complainant's credibility.  While the dates on the indictment may have had several sources, the jury was entitled to assume that the complainant had been consulted before the charges were laid.  The recharge may have suggested to the jury that they need not worry about discrepancies in the evidence and so have influenced the jury to disregard evidence which was material in assessing the complainant's credibility.  Credibility formed a major part of the defence because the case rested almost exclusively on the complainant's evidence.

 

                   Evidence as to disposition is generally inadmissible.  Similar act evidence, however, will occasionally go to more than disposition and will be considered to have real probative value.  That probative value usually arises from the fact that the acts compared are so unusual and strikingly similar that their similarities cannot be attributed to coincidence.  Such evidence should be received only where the probative force clearly outweighs the prejudice or the danger that the jury may convict for non‑logical reasons.

 

                   The nature of the similar act evidence in this case carried serious dangers of prejudice to the appellant.  The decision as to whether this evidence should be admitted should be left to the trial judge on a new trial.

 

                   Failure to disclose may constitute grounds for appeal where it results in an unfair trial.  Here, the Crown's failure to disclose either the statement or the existence of the potential witness created such prejudice against the appellant that it cannot be said with certainty that he received a fair trial.  The evidence could have been crucial to the defence on the issue of the respective credibility of the complainant and the appellant.  The statement did not disclose whether the teacher asked the child about possible sexual abuse but it clearly raised the suggestion that the complainant may have been questioned about this or other abuse which she denied.  A jury may consider that it is one thing to be silent, another to lie in response to a direct question.

 

                   A court, if the fresh evidence could reasonably have affected the trial verdict, may consider the evidence conclusive of the case and resolve it, or send the matter back for a new trial.

 

Cases Cited

 

                   Referred to:  R. v. B.(G.), [1990] 2 S.C.R. 30; R. v. B.(C.R.), [1990] 1 S.C.R. 717;  Re Cunliffe and Law Society of British Columbia (1984), 13 C.C.C. (3d) 560;  Lemay v. The King, [1952] 1 S.C.R. 232; Duke v. The Queen, [1972] S.C.R. 917;  Caccamo v. The Queen, [1976] 1 S.C.R. 786; Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. Stolar, [1988] 1 S.C.R. 480; R. v. Morin, [1988] 2 S.C.R. 345.

 

Statutes and Regulations Cited

 

Criminal Code, R.S.C. 1970, c. C‑34, ss. 529(4.1) [ad. 1985, c. 19, s. 123], 613(1)(b)(iii).

 

                   APPEAL from a judgment of the British Columbia Court of Appeal (1988), 46 C.C.C. (3d) 142, substituting a conviction of gross indecency for a conviction for indecent assault and upholding a conviction of sexual assault.  Appeal allowed.

 

                   Terence E. La Liberté, for the appellant.

 

                   William F. Ehrcke, for the respondent.

 

//McLachlin J.//

 

                   The judgment of the Court was delivered by

 

                   McLachlin J. -- This is a case where a new trial must be ordered as a result of the cumulative effect of a number of errors which, taken together, lead to the conclusion that the appellant did not receive a fair trial.

 

                   The appellant was convicted by a jury of indecent assault of his ex-wife and sexual assault of the daughter of his subsequent common law wife. The Court of Appeal ((1988), 46 C.C.C. (3d) 142), McEachern C.J. dissenting, upheld the convictions subject to substituting a conviction of gross indecency for the conviction for indecent assault.

 

                   The appellant appeals to this Court.  Because of the number of diverse issues, I find it convenient to consider the facts relevant to each in the course of discussing the issue in question.

 

Issues

 

                   The appellant raises two issues relating to the conviction for indecent assault (reduced to gross indecency):

 

                   1. Did the Court of Appeal err in ruling that the jury was properly charged regarding the evidence as to when the offence may have occurred?

 

                   2. Did the Court of Appeal err in holding that evidence relating to bad character was admissible as similar fact evidence?

 

                   The appellant raises three further issues relating to the conviction of sexual assault on the daughter of the common law spouse:

 

                   1. Did the Court of Appeal err in ruling that there was no duty on the Crown to disclose to the defence a statement which suggests a previous inconsistent statement by the complainant?

 

                   2. Did the Court of Appeal err in rejecting the accused's application to introduce the above statement as fresh evidence on appeal?

 

                   3. Did the Court of Appeal err in ruling that the admission of rebuttal evidence by the trial judge did not, in the circumstances of this case, constitute a "substantial wrong or a miscarriage of justice"?

 

Analysis

 

A.Issues relating to the Charges of Indecent Assault on the Accused's Ex-Wife       

 

                   The trial for indecent assault took place over ten years after the alleged events.  The complainant, the appellant's ex-wife, alleged that he had forced her to have sexual intercourse with a dog.  The only direct evidence against the appellant was that of his ex-wife.  The appellant denied that the events she described ever took place.  In these circumstances, the complainant's credibility assumed considerable importance, as did the evidence of similar acts presented against the appellant.

 

l. The Jury Instruction on the Evidence as to Time

 

                   The indictment alleged that the events in question occurred between August 1 and September 30, 1977.  The complainant's testimony was somewhat at variance with these dates.  She testified that the events occurred after her birthday on July 19 and before the conception of her son, which she placed in the latter part of October or early November.  In cross-examination, she answered affirmatively to a question putting the events during the "summer".  She also testified that she was away from the appellant on a trip to Vancouver from the end of July to Thanksgiving.  This evidence suggests that the events must have occurred outside the dates alleged in the indictment.  It also suggests uncertainty regarding dates which the appellant submits is relevant to the complainant's credibility.

 

                   In the course of his charge to the jury, the trial judge repeated three times that if the jury was left with a reasonable doubt that the offences occurred within the time period specified in the indictment, they must acquit.  This was plainly in error.  Section 529(4.1) of the Criminal Code, R.S.C. 1970, c. C-34, expressly provides that a variance between the indictment or a count therein and the evidence is not material.  As Wilson J., speaking for the Court, observed in R. v. B. (G.), [1990] 2 S.C.R. 30, at p. 52:

 

If there is conflicting evidence regarding the time of the offence, or the date of the offence cannot be established with precision, the information need not be quashed and a conviction may result, provided that time is not an essential element of the offence or crucial to the defence. [Emphasis added.]

 

                   After receiving this erroneous instruction, the jury went out to deliberate.  Some time later it requested a review of the ex-wife's testimony with respect to her visit to Vancouver. It appears that the jury was troubled by the question of the time when the offences were alleged to have been committed.

 

                   A little more than an hour later, the trial judge, on his own motion and without submissions from counsel, recalled the jury and gave them the following instruction:

 

Now, if I can explain it to you this way, if you were to find here beyond a reasonable doubt in Count 1 that the Accused indecently assaulted a female person, to wit: Claudette Cadden, and in Count 2 if you were to find beyond a reasonable doubt that the Accused did commit an act of gross indecency with Claudette Cadden, you find that first, that the act did happen, then if you should find that it took place but took place say before August 1st, 1977, or after September 30th, 1977, then the variance in the time between what you find and what's in the indictment is not material.  You don't have to concern yourself with it. [Emphasis added.]

 

                   The trial judge would appear to have recognized his initial error in telling the jury that the Crown must establish that the offences had occurred within the time period set out in the indictment, and was attempting to correct it.  This correction, however, created problems of its own.  He may have suggested to the jury that uncertainty regarding the ex-wife's evidence as to the time of the offences, and the fact, given her absence in Vancouver from the end of July to Thanksgiving, that they must have occurred within a very limited time frame, were immaterial, and matters with which they should not concern themselves.

 

                   The majority of the Court of Appeal conceded that it would have been better to have told the jury that the complainant's evidence as to the time of the offences could still be material on credibility. It concluded, however, that the charge was saved by the judge's general instructions that the jury's first task was to consider whether it was established beyond a reasonable doubt that the alleged assaults had been committed.  McEachern C.J. dissented.

 

                   I accept the appellant's submission that the instruction to disregard any variance between the times named in the indictment and the times given in the evidence may have misled the jury on the critical issue of the complainant's credibility.   While the dates on the indictment may have had several sources, the jury was entitled to assume that the complainant had been consulted before the charges were laid.   More generally, the recharge may have suggested to the jury that they need not worry about discrepancies in the evidence as to time or the effect of the trip to Vancouver on reducing the time available for commission of the offences.  Thus, the jury may have been influenced to disregard evidence which was material in assessing the credibility of the complainant. The case rested almost exclusively on her evidence. Given the critical timing of the recharge, it being the last word the jury heard before rendering its verdict, I agree with the conclusion of McEachern C.J. in dissent, at p. 168, that: "[i]nstructing the jury that the time of the offence was not material and that they did not have to concern themselves with it was wrong in law and removed from the case a major part of the defence upon which the accused relied".

 

                   2. The Evidence of Similar Acts

 

                   The Crown alleged that the appellant forced his ex-wife to submit to sexual intercourse with a dog.  In support of this contention, the Crown tendered evidence by the appellant's subsequent common law spouse of his peculiar sexual predilections.  There was no objection to the evidence at trial and the trial judge admitting it appears not to have directed his mind to the rules of evidence governing character and similar act evidence.

 

                   The evidence may be classed in three categories: (1) evidence of requests that the subsequent spouse submit to intercourse with a dog; (2) a remark relating to intercourse with a bull; and (3) requests that the spouse engage in sexual conduct involving a cucumber and body oils and foams.

 

                   The appellant submits that the evidence was inadmissible and should not have been placed before the jury.  The majority in the Court of Appeal below rejected this ground of appeal, holding that its probative value outweighed its prejudicial effect.  The Chief Justice differed, and would have found all the evidence inadmissible.

 

                   This Court addressed the principles governing the admissibility of evidence of similar acts in R. v. B. (C.R.), [1990] 1 S.C.R. 717.  Evidence as to disposition, which shows only that the accused is the type of person likely to have committed the offence in question, is generally inadmissible.  Such evidence is likely to have a severe prejudicial effect by inducing the jury to think of the accused as a "bad" person.  At the same time it possesses little relevance to the real issue, namely, whether the accused committed the particular offence with which he stands charged.  There will be occasions, however, where the similar act evidence will go to more than disposition, and will be considered to have real probative value.  That probative value usually arises from the fact that the acts compared are so unusual and strikingly similar that their similarities cannot be attributed to coincidence.  Only where the probative force clearly outweighs the prejudice, or the danger that the jury may convict for non-logical reasons, should such evidence be received.

 

                   The nature of the similar act evidence in this case carries serious dangers of prejudice to the appellant.  As stated in R. v. B. (C.R.), at p. 735: "... where the similar fact evidence sought to be adduced is prosecution evidence of a morally repugnant act committed by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit its reception".   It is the duty of the trial judge to weigh the factors relating to probative value and prejudice and determine whether, notwithstanding the fundamental exclusionary rule, the probative value of the evidence is of such force that it tips the balance in favour of reception.

 

                   The trial judge in the case at bar failed to do this.  It can be said with some assurance that had he done so he would have excluded at least some of the evidence. The evidence relating to the cucumber and oils  possesses no probative force taking it out of the realm of mere evidence of disposition.  It shares no specific common features with the evidence on the charges before the jury.  At best, it is evidence of the appellant's particular sexual taste or fantasies.  In short, its connection with the allegations in the trial is so tenuous that its prejudicial force must be taken to outweigh the virtually non-existent probative value which it might be alleged to possess.

 

                   The other evidence is more problematic, involving, as it does, requests (or in the case of the bull, a rather fantastic suggestion) that the appellant's subsequent spouse submit to sexual intercourse with an animal.  It can be argued that the suggestion that one's spouse should participate in such unnatural acts is so remarkable that the separate incidents might be viewed as highly similar, giving the evidence sufficient probative force to take it out of the category of mere evidence of disposition.  However, rather than deciding at this level whether the probative force of the evidence outweighs the potential prejudice of inducing the jury to convict for reasons unrelated to its logical force, I think the best course in this case is to leave the decision to the trial judge on the new trial.

 

B.Issues Relating to the Charge of Sexual Assault on the Daughter of the Appellant's Common Law Spouse

 

                   At trial, the appellant was also convicted of sexually assaulting the daughter of his subsequent common law wife.   This complainant, who was nine or ten years old at the time of the alleged offences, testified that the accused on several occasions entered her bedroom at night and fondled her breasts.  The appellant denied that this ever occurred.  The appeal from the convictions on these counts raises issues as to the Crown's duty to disclose statements in its possession to the defence, the reception of fresh evidence, and the ambit of rebuttal evidence on a criminal trial.

 

1.   Failure to Disclose

 

                   The appellant submits that the Crown wrongly failed to disclose to the defence a statement it received from a former school teacher of the daughter of his common law wife after the preliminary inquiry and before the trial.  The defence did not discover the statement until after the trial.

 

                   The majority on the Court of Appeal, per Craig J.A., ruled that the Crown had not breached its duty of disclosure, the matter being in the discretion of the Crown: Re Cunliffe and Law Society of British Columbia (1984), 13 C.C.C. (3d) 560.   The Chief Justice dissented, holding (at p. 155) that:  "there is a general duty on the part of the Crown to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it".

 

                   In view of the fact that no submissions were made on the effect the Canadian Charter of Rights and Freedoms  may have on the duty to disclose, I propose to address the matter only as it stands at common law, independent of Charter  considerations.

 

                   This Court has previously stated that the Crown is under a duty at common law to disclose to the defence all material evidence whether favourable to the accused or not.  In Lemay v. The King, [1952] 1 S.C.R. 232, while holding that a prosecutor had a discretion regarding which witnesses to call, it expressed the opinion that the Crown must nevertheless produce all material facts.  Cartwright J. stated at p. 257:

 

                   I wish to make it perfectly clear that I do not intend to say anything which might be regarded as lessening the duty which rests upon counsel for the Crown to bring forward evidence of every material fact known to the prosecution whether favourable to the accused or otherwise... [Emphasis added.]

 

                   On the other hand, this Court's dicta in Duke v. The Queen, [1972] S.C.R. 917, at p. 924, per Fauteux C.J., stated that "the failure of the Crown to provide evidence to an accused person does not deprive the accused of a fair trial unless, by law, it is required to do so".   Duke involved an accused who requested he be provided with his breath sample on an impaired driving charge.  The request came after the Crown had already disposed of the sample.  A unanimous Court held there was no deprivation of the right to a fair trial: see also Caccamo v. The Queen, [1976] 1 S.C.R. 786.

 

                   It is not necessary on the facts of this case to establish the exact ambit of the Crown's duty of disclosure.   It is sufficient to note that failure to disclose may constitute grounds for appeal where it results in an unfair trial.   As Spence J. observed in his reasons in Caccamo (dissenting on another ground, Laskin C.J. concurring), courts must not hesitate to interfere where conduct of the Crown suggests there was unfairness at trial, at p. 796: 

                   In my view, it is the duty of the court to be vigilant to assure itself that the appellant has had a fair trial and if the regrettable conduct of the prosecution, using that term to cover both the police and Crown counsel, ever results in unfairness then the court should act with decisiveness to reverse such unfairness.

 

                   In my view, the failure of the Crown in this case to disclose either the statement or the existence of the potential witness created such prejudice against the appellant that it cannot be said with certainty that he received a fair trial. In the statement the teacher states that she and another teacher had become concerned about the complainant in February or March of 1986, when "she suddenly became very withdrawn, her school work went down and she appeared not to care about herself".   The teacher states that they knew the child well, and thus "questioned" her about possible child abuse.   In the course of the questioning, the complainant referred to the man that she and her mother were living with.  The following remarks appear toward the end of the statement:

 

I spoke with Nicole and asked her if there was anything going on to let either myself, her mother, the Counsellor or any other adult know.  There was an extreme amount of tension in the home.  This was very apparent.  Also there was a bump on Nicole's head at one time.  She also denied everything I asked her and we had a very good relationship.  I spoke with her quite often. [Emphasis added.]

 

                   The majority of the Court of Appeal (as revealed from its reasons on the application to adduce fresh evidence) doubted the value of the statement, characterizing it as merely confirming what the complainant said at trial -- that she had told no one of the assault.  The Chief Justice, on the other hand, felt the evidence could have been crucial to the defence, requiring a new trial.

 

                   I share the view of the Chief Justice.  While the statement does not disclose whether the teacher asked the child about possible sexual abuse, it clearly raises the suggestion that she may have been questioned about this or other abuse, which she denied.  A jury may find a distinction between evidence that the complainant had told no one of the alleged offences, and evidence that in response to direct questioning she denied any such events.  Arguably, the state of mind required for silence may well be different from that required for a direct denial.  A jury may consider that it is one thing to be silent, another to lie in response to a direct question.  The former may be easy; the latter more difficult.  Had counsel for the appellant been aware of this statement, he might well have decided to use it in support of the defence that the evidence of the complainant was a fabrication.  In my view, that evidence could conceivably have affected the jury's conclusions on the only real issue, the respective credibility of the complainant and the appellant.

 

2.  The Application for Fresh Evidence

 

                   The appellant applied to have the teacher's statement admitted as fresh evidence on appeal.  The majority dismissed the application on the ground that it could not have affected the result.  McEachern C.J., while uncertain whether he would have acceded to the motion absent other grounds for appeal, would have received the statement as fresh evidence.  The appellant maintains the application before this Court.

 

                   The test for admission of fresh evidence on appeal is set out in Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775:

 

(1)The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen.

 

(2)The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

 

(3)The evidence must be credible in the sense that it is reasonably capable of belief, and

 

(4)It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

 

                   The Court of Appeal differed on whether the fourth requirement in Palmer was met.  I am satisfied that admission of the evidence at trial might have reasonably been viewed as capable of affecting the result. As I have suggested above, a direct denial in response to questioning might be viewed as qualitatively different from general evidence that the complainant had told no one of the alleged assaults.  As this Court has made clear in R. v. Stolar, [1988] 1 S.C.R. 480, and R. v. Morin, [1988] 2 S.C.R. 345, its role on a fresh evidence application is not to address the merits of the Court of Appeal's decision on the application, but rather to assess the application anew.  Accordingly, if it is held that the fresh evidence could reasonably have affected the trial verdict, the Court has two options.  It may consider the evidence conclusive of the case, and resolve it, or send the matter back for a new trial.  I would therefore grant the application for the admission of this evidence, and order a new trial.

 

3. The Rebuttal Evidence

 

                   After the appellant had taken the witness stand, the Crown introduced evidence, over defence objection, purporting to prove certain matters which the appellant had denied in cross-examination. The Court of Appeal unanimously concluded that much of the evidence adduced in rebuttal should not have been admitted.  Its members differed only on whether the admission of the evidence resulted in a substantial wrong or miscarriage of justice.  The majority, per Craig J.A. held that it did not, and invoked the curative provision of s. 613(1)(b)(iii) of the Code.  The Chief Justice held that it did, and accordingly declined to apply the curative provision.  This being an appeal as of right, only the application of the curative provision is before this Court.  In view of my conclusion that a new trial must be ordered on other grounds, I do not find it necessary to consider this question.

 

Conclusion

 

                   The cumulative effect of the errors at trial is such that it cannot be said with any assurance that the appellant received a fair trial on any of the charges.  I would allow the appeal and direct a new trial.

 

                   Appeal allowed.

 

                   Solicitors for the appellant:  La Liberté, Rich, Vancouver.

 

                   Solicitor for the respondent:  The Ministry of the Attorney General of British Columbia, Vancouver.