Held: The appeal should be allowed.
The Court of Appeal erred in applying s. 613(1)(b)(iii) of the Code to uphold the conviction. The proviso of s. 613(1)(b)(iii) applies only where a court of appeal is of the opinion that on the ground of a wrong decision on a question of law an appeal might be decided in favour of the appellant, and where it is also of the opinion that no substantial wrong or miscarriage of justice has occurred. Here, the trial judge's failure to limit the cross‑examination was an error of mixed law and fact and, accordingly, the conviction could not be saved by the application of the proviso. Having found that the abusive cross‑examination was unfairly prejudicial to the appellant, the Court of Appeal should have allowed the appeal on the basis that there had been a miscarriage of justice under s. 613(1)(a)(iii) of the Code.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 156, 157, 613(1)(a)(iii), (b)(iii).
APPEAL from a judgment of the Ontario Court of Appeal, dated June 2, 1982, dismissing the accused's appeal from his conviction for gross indecency under s. 157 of the Criminal Code . Appeal allowed.
Clayton C. Ruby, for the appellant.
Susan G. Ficek, for the respondent.
The judgment of the Court was delivered by
1. McIntyre J.‑‑This is an appeal against the judgment of the Ontario Court of Appeal, dated June 2, 1982, which dismissed the appellant's appeal against his conviction for gross indecency under s. 157 of the Criminal Code . The appeal was dismissed by the application of s. 613(1)(b)(iii) of the Code after findings that the cross‑examination of the appellant by Crown counsel at trial "could only unfairly prejudice the appellant", and that an error in charging the jury to the effect that "mere disbelief in the alibi evidence could be used as evidence of guilt itself" was wrong and was prejudicial to the accused.
2. The appellant was charged with committing an act of gross indecency with one Kenneth Jodoin, contrary to s. 157 of the Criminal Code , and with indecent assault on Kenneth Jodoin, contrary to s. 156 of the Code (since repealed). He was tried at Hamilton before His Honour Judge Clare and a jury and convicted on both counts. His appeal to the Court of Appeal (Jessup, Brooke and Cory JJ.A.) was allowed in part. The conviction under s. 156 of the Code was quashed but the appeal against the gross indecency conviction under s. 157 was dismissed.
3. On May 27, 1981, the complainant was attacked in his apartment at about 1: 00 a.m. He had been undergoing hormone treatment in preparation for what was described as a "sex‑change operation", and was dressed as, and had assumed the appearance of, a woman. He was planning to leave his apartment when he heard a motor vehicle stop in front of the building. He saw a man, whom he later identified as the appellant, enter the building. The man asked Jodoin for a beer. The complainant said he had no beer, but at the visitor's request he allowed entry to his apartment because the visitor wished to use the washroom. When in the apartment the visitor attacked the complainant. There was a struggle and a forced act of fellatio by the complainant. The assailant then left.
4. There was evidence of identification of the appellant, including evidence relating to his clothing, and also evidence identifying the licence number of the motor vehicle which was correct to within one digit of the licence number of the appellant's vehicle. There was, as found by the Court of Appeal, a very strong circumstantial case against the appellant. The appellant gave evidence on his own behalf. He denied having been the attacker and swore he was not at the complainant's apartment building on that occasion though he had visited another tenant of the block on another occasion. He gave an account of his movements on the night in question, which placed him elsewhere than the scene of the crime and which was supported by witnesses called on his behalf. The jury, having heard all the evidence, clearly disbelieved the appellant and convicted him.
5. During the trial, Crown counsel (not counsel on this appeal) conducted a repetitive and improper cross‑examination of the appellant. The trial judge interfered on two occasions cautioning Crown counsel but did not prevent the continuation of the examination. Evidence of previous sexual conduct of the appellant unrelated to the offence charged had been admitted as part of the Crown's case. The Court of Appeal considered that its admission was improper. The cross‑examination dealt extensively with that evidence. The appellant was challenged to explain away or account for the evidence of Crown witnesses, and it is apparent from a reading of the transcript that the appellant became upset and emotionally disturbed by the constant repetition of questions which he had already answered. These facts appear to have led the court to interfere. The Court of Appeal was of the view that the cross‑examination was improper. Brooke J.A., with whom Cory J.A. agreed, after noting that the case for the defence depended on the jury's view of the evidence of the appellant and his witnesses to his alibi, said:
As to the cross‑examination, while the evidence led in the cross‑examination was to some extent relevant to show that the appellant was in the building where the complainant resides and at the hour that she says that he was there, it went too far when the appellant's sexual conduct on another occasion was introduced in the cross‑examination and, in particular, when Crown counsel persisted in this regard over the accused's denial. Crown counsel sought and was permitted to lead that evidence which was not really relevant to the issue and could only unfairly prejudice the appellant. Nothing further need be said about the misdirection that mere disbelief in the alibi evidence could be used as evidence of guilt itself. This Court has dealt with such matters on a number of other occasions. The direction was wrong and, of course, was prejudicial to the accused.
He concluded because of the strength of the Crown's circumstantial case it was a proper case for the application of the proviso in s. 613(1)(b)(iii) of the Code.
6. In this Court it was contended by the appellant that the application of the proviso was improper and that it constituted reversible error. It was contended that the impropriety of the cross‑examination raised at most a question of mixed law and fact and, accordingly, it could not be the subject of the application of the proviso. Furthermore, the error found by the Court of Appeal to be "unfairly prejudicial", even if considered an error of law, was not such an error that the proviso should have been applied. The Crown argued that the impugned cross‑examination viewed in the context of the admissibility of evidence did raise a question of law, and one to which the proviso could apply. It was also argued that, apart from questions of admissibility of evidence, the impugned cross‑examination could raise questions concerning the fairness of the proceedings. The nature or manner in which cross‑examination is conducted does not necessarily raise a question of law to which the proviso may apply, but does raise an issue whether a miscarriage of justice has occurred under s. 613(1)(a)(iii). However, the Court of Appeal, it was said, made no error in law in holding that there had been no miscarriage of justice.
7. The relevant portions of s. 613 of the Criminal Code are set out hereunder:
613. (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit, on account of insanity, to stand his trial, or against a special verdict of not guilty on account of insanity, the court of appeal
(a) may allow the appeal where it is of the opinion that
...
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or
(iii) on any ground there was a miscarriage of justice;
(b) may dismiss the appeal where
...
(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;
The proviso may be applied by the Court of Appeal only where it has formed the opinion that the appeal might be decided in favour of the appellant because of a wrong decision on a question of law, and where it is also of the opinion that no substantial wrong or miscarriage of justice has occurred. This is clear from the wording of the statute and, indeed, was accepted by the Crown in its factum.
8. The errors at trial were enumerated by Jessup J.A. in his short judgment "for the judge's future guidance". They were stated to be that:
(1) He charged the jury that mere disbelief of the alibi evidence could be used as evidence of guilt itself.
(2) He permitted evidence of the appellant's sexual conduct unrelated to this offence, although it was not similar fact evidence and he permitted the Crown to cross‑examine on that evidence.
(3) The trial judge erred when he said to the jury "It is your duty to give the benefit of the doubt to the accused, but having done so, to convict if you believe guilt is established."
Points (1) and (3) are errors of law. Point (2) is the error on which the appellant bases the principle part of his argument. The appellant raises two propositions. He argues, firstly, that the Court of Appeal has found that the abusive cross‑examination was unfairly prejudicial to the appellant. The Court of Appeal should, therefore, have allowed the appellant's appeal on the basis that there had been a miscarriage of justice under s. 613(1)(a)(iii). The application of the proviso, it was argued, was reversible error because the Court of Appeal had no power to apply the proviso unless an error of law could be shown. The error in permitting the abusive cross‑examination was, at most, one of mixed law and fact and, accordingly, the conviction could not be saved by the application of the proviso. Secondly, the appellant contended that, even if the error with respect to the cross‑examination could be considered to be an error of law, it was of such a nature that the Court of Appeal erred in applying the proviso to dismiss the appeal.
9. Was the failure of the trial judge to restrain the abusive cross‑examination an error of law? Of course, a legal element was involved in the decision which faced the trial judge. The question of admissibility of evidence is a question of law. Crown counsel has a right in law to cross‑examine the accused and, accordingly, to deny that right or unduly limit it raises considerations of law. There are, however, limits to the extent of the cross‑examination and the manner in which it may be conducted, and there is always a discretion in the trial judge and a duty to confine the cross‑examination within proper limits. There is, of course, no doubt that in cross‑examination in criminal cases, particularly where questions of credibility of witnesses are in issue, a wide latitude is accorded to counsel and too fine a line should not be drawn to confine or limit a detailed and searching inquiry into the matters raised by the evidence given by the accused and other witnesses. The discretion to intervene in a cross‑examination must, of course, be exercised judicially. Its exercise does not rest on legal considerations alone, but will depend as well on the facts and circumstances in each case, and will not be determined by the simple application of a fixed rule of law. The decision to exercise the discretion to intervene in cross‑examination, or to refrain from intervention, is one involving considerations of both law and fact and cannot be said to be a question of law alone. Each case will depend on its own circumstances, and no doubt there will frequently be difficulty in deciding from case to case whether the point has arrived in a cross‑examination where the trial judge should intervene. It is in this case abundantly clear, however, that that point was reached and passed. The trial judge was obviously concerned at the course the cross‑examination was taking. He did intervene on at least two occasions to caution counsel and to attempt to restrict counsel within proper limits, but this did not affect the cross‑examination in any significant way. That he was in error in this regard was found by the Court of Appeal and it was noted by Brooke J.A. that it "could only unfairly prejudice the appellant".
10. The Court of Appeal, despite its finding of prejudice, relied on the provisions of s. 613(1)(b)(iii) of the Criminal Code . It applied the proviso to dismiss the appeal. In this, it is my view that they were in error. Section 613(1)(b)(iii) permits of the application of the proviso only where it is of the opinion that on the ground of a wrong decision on a question of law an appeal might be decided in favour of the appellant, but it is also of the opinion that no substantial wrong or miscarriage of justice has occurred. Here no error of law alone is relied upon, and the error in failing to limit the cross‑examination may not be relieved against by the application of the proviso. Prejudicial error had been found and the appellant, in my view, was entitled to have the court consider whether the appeal should have been allowed under the provisions of s. 613(1)(a)(iii) of the Code on the ground that a miscarriage of justice had occurred.
11. I find it impossible to conclude that no miscarriage of justice occurred as a result of the appellant's cross‑examination. A person charged with the commission of a crime is entitled to a fair trial according to law. Any error which occurs at trial that deprives the accused of that entitlement is a miscarriage of justice. It is not every error which will result in a miscarriage of justice, the very existence of the proviso to relieve against errors of law which do not cause a miscarriage of justice recognizes that fact. However, I am not able to say that an error which, in the words of Brooke J.A., "could only unfairly prejudice", would not by itself cause a miscarriage of justice. It would be wholly inconsistent with a finding of unfair prejudice in a trial to find, nonetheless, that no miscarriage of justice occurred. In my opinion, the Court of Appeal, having found as it did, ought to have allowed the appeal under s. 613(1)(a) (iii) of the Criminal Code . For these reasons, s. 613(1)(b)(iii) of the Code could not influence the decision and further exploration of that section in dealing with the second or alternative argument raised by the appellant is unnecessary.
12. I would allow the appeal.
Appeal allowed.
Solicitor for the appellant: Clayton C. Ruby, Toronto.
Solicitor for the respondent: The Attorney General for the Province of Ontario, Toronto.
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