This week’s top three summaries: R v R.V., 2019 SCC 41, R v J.B., 2019 ONCA 591, and R v Finck, 2019 NSCA 60.

R v RV (SCC)

[July 31/19] Sexual Assault - s.276 - Complainant's Prior Sexual History - 2019 SCC 41 [Reasons for Judgement Karakatsanis J. (Wagner C.J. and Abella, Moldaver and Martin JJ. concurring), Brown & Rowe JJ Dissenting]

AUTHOR’S NOTE: Sexual assault continues to be a hot-button topic in the press and in the courtroom.  This decision marks the Supreme Court's third pronouncement this year on issues related to the permissible uses of a sexual assault complainant's prior sexual history in a criminal trial.  Due to the multiplicity of competing interests represented in the legislation as well as recent amendments not yet addressed by the SCC, this area promises to be hotly contested for the foreseeable future.  In this decision, the Court confirmed that where the Crown advances virginity and pregnancy to advance the Crown's case, the defence can cross-examine about prior sexual contact with another person that could account for the pregnancy.  Further, the Court stressed that the Crown's ability to lead evidence in this area is circumscribed by the common law as much as the Defence is circumscribed by statute.  Finally, there is no true finality to 276 rulings as evidence arising in the trial has the capacity to cause a material chance to the factual matrix for any rulings in advance of a trial.

Overview

"Here, the complainant testified that she was a virgin at the time of the assault. The Crown introduced evidence of her subsequent pregnancy and the approximate date of conception to support the complainant’s testimony that she was sexually assaulted by the accused. The accused denied the allegations and sought to question the complainant as to whether anyone else could have caused the pregnancy." (Para 4)

"The application judge ruled that the accused was not permitted to ask whether the complainant had engaged in any other sexual activity because the accused had no evidence of “specific instances of sexual activity” — one of the requirements of s. 276(2) of the Criminal Code. The accused was, however, permitted to cross-examine the complainant about her claim that she was a virgin at the time of the assault." (Para 5)

"I conclude that the application judge erred. The cross-examination sought to establish that the pregnancy was caused by sexual activity other than the alleged assault. The Crown-led evidence implicated a specific sexual act, namely activity capable of causing pregnancy within a particular timeframe. The accused’s request satisfied the “specific instances” requirement of s. 276(2) because it was sufficiently detailed to permit the judge to apply the regime." (Para 6)

Pertinent Facts

"The complainant explained that she returned to her tent, realized R.V. still had her phone and went to his tent to retrieve it. Upon her arrival at his tent, R.V. told the complainant he needed to speak to her in private. He took her by the wrist and led her into a men’s washroom near the beach." (Para 12)

"Once inside the washroom, the complainant said R.V. tried to kiss her and remove her shirt, which she resisted. Then he told her to lay down on the floor. She complied out of fear and he pulled down her pants and underwear as well as his own. R.V. then placed himself on top of her. She believes he tried to penetrate her vagina with his penis but her memory of this moment is blank. Her next memory is of R.V. asking her if she heard one of the cousins calling for her. After warning the complainant not to tell anyone what had happened, R.V. got up, put his clothes on and left. After he left, the complainant went to the women’s washroom to clean up. She said the area outside her vagina felt wet and sticky and she felt disgusted. She then returned to her tent and fell asleep." (Para 13)

"The doctor asked the complainant whether she had any interactions capable of causing pregnancy around the date of conception. During this discussion, the complainant told the doctor about the incident with R.V. Because the complainant was underage, later that day the doctor relayed this information to the Children’s Aid Society, which in turn contacted the police." (Para 16)

"After consulting with her doctor again on September 19th, the complainant terminated the pregnancy on September 21st. The clinic disposed of the fetal remains that day, making a DNA paternity test impossible." (Para 17)

"The complainant, the complainant’s doctor and the accused testified at trial. During the doctor’s testimony, it became clear that defence counsel’s calculation of the conception date at the voir dire was wrong. Based on the ultrasound, conception would have occurred between June 21st and July 5th, 2013." (Para 14)

The trial judge found RV to not be credibly, the complaint to be credible and he convicted RV of sexual assault and interference. (Paras 25-27)

Prior Sexual History Applications

"In many cases, when the accused applies to adduce evidence pursuant to s. 276, they have an evidentiary basis for known sexual activity (i.e. “detailed particulars” of “specific sexual activity”). In this case, however, while R.V. maintained that other activity necessarily occurred because the complainant became pregnant, he had little knowledge of the particulars of that activity. He thus sought to adduce evidence of the other sexual activity by cross-examining the complainant." (Para 37)

"Generally, a key element of the right to make full answer and defence is the right to cross-examine the Crown’s witnesses without significant and unwarranted restraint: R. v. Lyttle, 2004 SCC 5 (CanLII), [2004] 1 S.C.R. 193, at paras. 1 and 41; Osolin, at pp. 664-65; Seaboyer, at p. 608. The right to cross-examine is protected by both ss. 7 and 11(d) of the Charter. In certain circumstances, cross-examination may be the only way to get at the truth. The fundamental importance of cross-examination is reflected in the general rule that counsel is permitted to ask any question for which they have a good faith basis — an independent evidentiary foundation is not required: Lyttle, at paras. 46-48." (Para 39)

"Thus, the fact that the accused’s ability to make full answer and defence requires that the complainant be cross-examined is not the end of the analysis. The scope of the permissible questioning must also be balanced with the danger to the other interests protected by s. 276(3), including the dignity and privacy interests of the complainant." (Para 41)

"Here, the Crown introduced evidence of the complainant’s pregnancy and virginity to corroborate her testimony that the assault occurred. In his s. 276 application, R.V. sought to challenge that inference by questioning the complainant about her sexual activity from June 1st to July 1st, 2013 in order to determine “whether any other individual could have impregnated the complainant” (A.R., vol. II, at pp. 3-4)." (Para 42)

"Section 276(1) sets out an absolute bar against introducing evidence for the purpose of drawing twin-myth inferences. Here, R.V.’s request to challenge the inference that the pregnancy resulted from the alleged assault did not engage the twin myths. As such, the application judge correctly concluded that the cross-examination was not barred by s. 276(1)." (Para 44)

Requirement of Specific Instances of Sexual Activity in 276(2)(a)

"Broad exploratory questioning is never permitted under s. 276. Open-ended cross-examination concerning a complainant’s sexual history clearly raises the spectre of the impermissible uses of evidence that the provision was intended to eliminate. Section 276(2)(a) requires the accused to identify “specific instances of sexual activity” to avoid unnecessary incursions into the sexual life of the complainant." (Para 47)

"Section 276(2)(a) does not always require an accused to come before the court armed with names, dates and locations. As counsel for the intervener Criminal Lawyers’ Association of Ontario pointed out, requiring such details may, in some cases, be unduly intrusive, defeating one of the provision’s most important objectives. Rather, as Doherty J.A. observed in L.S. and this Court affirmed in Goldfinch, the degree of specificity required depends on the circumstances of the case, the nature of the sexual activity that the accused seeks to adduce and the use to be made of that evidence: L.S., at para. 83; Goldfinch, at para. 53." (Para 49)

"In my view, the application judge erred when she concluded that the accused failed to identify evidence of specific instances of sexual activity." (Para 52)

"R.V. sought to cross-examine the complainant on a specific instance of sexual activity — the activity that caused her pregnancy — evidence of which was introduced by the Crown. The pregnancy itself demonstrated only that sexual activity capable of impregnating the complainant took place around July 1st. The existence of such activity was not speculative. But the fact of pregnancy here did not reveal exactly when or with whom that sexual activity occurred. The proposed cross-examination was directed at challenging the inference that R.V. caused the pregnancy." (Para 53)

"The Crown’s assertion that the pregnancy arose from the sexual activity that formed the subject-matter of the charge cannot prevent the accused from leading evidence to suggest that the pregnancy was caused by someone else or by some other sexual act. The presumption of innocence requires that R.V. be allowed to challenge the Crown’s evidence that he committed a sexual assault. Of course, the trier of fact may ultimately reject the accused’s denial. But, as Paciocco J.A. emphasized, it would be unfair for the Crown to rely on the complainant’s testimony that the accused caused the pregnancy while at the same time preventing the accused from challenging the complainant’s account." (Para 54)

"At trial, the medical evidence established a rough two-week window during which conception would have occurred. In either case, the clearly identified time period, along with the specific nature of the activity — activity capable of causing pregnancy — was sufficiently specific to satisfy s. 276(2)(a)." (Para 55)

Relevance to an Issue in Trial - s.276(2)(b)

"In this case, the Crown suggests that because the answers to R.V.’s questions were unknown, the relevance of those questions was speculative. I cannot accept this proposition. The relevance of the proposed questioning was clear. The Crown relied on the pregnancy as corroborating the complainant’s account. Regardless of her answers, the complainant’s testimony would be relevant. If she denied the existence of other sexual activity, this could strengthen the Crown’s case. But if other sexual activity could have occurred during the relevant time period, the probative value of the pregnancy would be significantly reduced."   (Para 58)

Balancing the Interests - s.276(2)(c)

"The application judge should not have considered the probability that R.V.’s questioning would be successful, but rather whether the answers would be probative. Because the answers had the potential to undermine or confirm important Crown evidence, their probative value was high. In my view, two factors related to the probative value of the evidence required that some form of cross-examination of the complainant be allowed:

(a) the interests of justice, including the right of the accused to make a full answer and defence; [and]

...

(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case." (Para 62)

"In R. v. Crosby, 1995 CanLII 107 (SCC), [1995] 2 S.C.R. 912, L’Heureux-Dubé J. wrote that “[s]ection 276 cannot be interpreted so as to deprive a person of a fair defence”: para. 11; see also Darrach, at para. 43; Seaboyer, at p. 616. Thus, in weighing how the accused may respond to Crown-led evidence, the judge must ensure the accused is not denied the right to make full answer and defence." (Para 63)

"Simply put, the more important evidence is to the defence, the more weight must be given to the rights of the accused. For example, the need to resort to questions about a complainant’s sexual history will be significantly reduced if the accused can advance a particular theory without referring to the complainant’s sexual history. But in other circumstances — where challenging the Crown’s evidence of the complainant’s sexual history directly implicates the accused’s ability to raise a reasonable doubt — cross-examination becomes fundamental to the accused’s ability to make full answer and defence and must be allowed in some form: Mills, at paras. 71 and 94." (Para 64)

"This is such a case. Here, there was no independent evidence of paternity. In light of R.V.’s denial, the only way he could challenge the inference urged by the Crown was by cross-examining the complainant with respect to other sexual activity. In these circumstances, the complainant’s privacy must yield to cross-examination in order to avoid convicting the innocent." (Para 65)

"Even where the right to a fair trial requires cross-examination of the complainant, it does not entitle an accused to pursue the most expansive cross examination." (Para 67)

"In my view, a correct balancing of the interests set out in s. 276(3) would have allowed R.V. to inquire into: (i) the complainant’s understanding of the types of sexual activity capable of causing pregnancy and (ii) whether she engaged in any such activity at the end of June and the beginning of July. However, to minimize the impact on the complainant’s privacy and dignity, that inquiry needed to be limited." (Para 70)

"While I leave this issue for another day, I agree with Paciocco J.A. that it would be incongruous to hold that the statement “I am a virgin” does not engage s. 276 while an answer to the contrary would clearly be a reference to sexual activity: para. 79." (Para 81)

The Continuing Gate-Keeper Role

"Section 276 continues to operate even after an initial evidentiary ruling has been rendered. Trial judges must therefore remain vigilant in ensuring the objectives of the provision are upheld as the trial unfolds. Cross-examination about the complainant’s sexual history, where permitted, should be closely monitored to ensure it remains within the permissible limits. And as evidence emerges, it may become necessary to re-consider prior s. 276 rulings." (Para 72)

"First, where targeted cross-examination of the complainant is permitted, trial judges must strike a delicate balance between giving counsel sufficient latitude to conduct effective cross-examination and minimizing any negative impacts on the complainant and the trial process. Proposed questions should be canvassed in advance and may be re-assessed based on the answers received. In certain cases, it may even be appropriate to approve specific wording: see, e.g., Nkemka, at para. 18; R. v. Akumu, 2017 BCSC 533, at paras. 26-31 and 35-54 (CanLII)." (Para 73)

"Second, as a general rule, an order related to the conduct of trial may be varied or revoked if there is a material change of circumstances: C.A. reasons, at paras. 98-103; see also R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707, at para. 30; R. v. Calder, 1996 CanLII 232 (SCC), [1996] 1 S.C.R. 660, at para. 21; R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, at para. 28. As evidence emerges at trial, both the probative value and potential prejudice of proposed evidence may change. If a material change of circumstances occurs, either party may request that a previous evidentiary ruling be re-visited." (Para 74)

"Indeed, the evidentiary foundation did shift in this case. At the voir dire, counsel for R.V. suggested that the date of conception was approximately June 14th — 17 days prior to the alleged offence. However, the doctor’s testimony at trial established that conception would have occurred between June 21st and July 5th. As the potential conception date coincided more closely with the date of the assault, the probative value of the pregnancy as evidence of the assault increased. The narrower timeframe also decreased the potential prejudice to the complainant. Both are factors that would likely have provided grounds for re-considering the s. 276 ruling." (Para 77)

Limits on the Crown's Ability to Call a Case that Impacts s.276 Principles

"While s. 276(2) applies only to evidence “adduced by or on behalf of the accused”, s. 276(1) and the common law principles apply to Crown-led evidence of a complainant’s sexual history: Barton, at para. 80. ...Irrespective of which party adduces evidence of the complainant’s sexual history, the trial judge must guard against twin-myth reasoning as well as prejudice to the complainant, the trial process and the administration of justice." (Para 78)

"The complainant responded that she was a virgin on July 1st and indicated that she had sexual intercourse for the first time on September 2nd. The complainant’s doctor also testified to conversations regarding the complainant’s sexual activity. It is not clear on the record why the Crown adduced this evidence in this way. Whether these statements were admissible, as well as how the defence would be permitted to challenge them, should have been decided in advance." (Para 80)

"[Q]uestions regarding when the complainant ceased to be a virgin undoubtedly fell within the ambit of s. 276 and the Seaboyer principles. In this case, the Crown presumably sought to confirm that the complainant had not engaged in sexual activity during the timeframe when conception could have occurred. How the Crown intended to adduce this evidence — and whether discussion of her activity on September 2nd, well beyond the conception timeframe, was necessary — should have been evaluated in advance and considered alongside R.V.’s s. 276 application." (Para 82)

Here the curative proviso applied as the SCC determined that the permitted questioning would not have been any broader had the trial judge made the correct rulings. (Para 96)

R v J.B. (ONCA) 

[July 11/19] Jury Request for Transcripts not in Evidence - Exhortations to a Jury - Requirement to Relate Evidence to the Legal Issues in Charge to the Jury - 2019 ONCA 591 [Reasons by David Watt J.A. with Paul Rouleau J.A. and Grant Huscroft J.A. Concurring]

AUTHOR’S NOTE: Jury trials are complicated by the necessity to properly instruct the jury and to ensure the process that they engage in is appropriate to the task of detached and logical reasoning. Problems can arise in both the process and the reasoning where courts and counsel rush through the formalities. Here, a relatively uncomplicated trial became undone by the combined effect of poor instruction, provision of exhibits not in evidence and a failure to address a juror's note about an impending unavailability during deliberations. 

Pertinent Facts

"During deliberations, which extended to a third day in a case that involved neither legal complexity nor factual intricacy, the jury twice reported deliberation impasses; sought materials used in cross-examination but not filed as exhibits at trial; asked for transcripts of the evidence of the two principal witnesses, then changed their mind about one of them; and disclosed the unavailability of one juror if the deliberations extended beyond the third day." (Para 3)

"The complainant testified that the conduct which formed the subject-matter of the three counts contained in the indictment occurred between 2005 and 2010, when she was an elementary school student in grades four to eight. The conduct included touching and pinching her breasts and, in some instances, touching her vaginal area. It occurred at night while she and the appellant were watching television. On some occasions, it happened during the school year, at other times, during summer vacation. These touching incidents occurred at least four times." (Para 8)

The Jury Request for Unfiled Transcript of Accused Police Statement

The Facts

"The Crown cross-examined the appellant on several passages in his police interview on the basis that those passages were inconsistent with the appellant's trial testimony. The Crown did not seek to file as exhibits transcripts of the passages on which she cross-examined the appellant." (Para 17)

"The trial judge invited the jury to put their request in writing. About 45 minutes later, the jury responded in writing:

For a transcript of the police interrogation that was presented to the court. Our request is limited to only what was introduced as evidence from the police interrogation." (Para 20)

"Counsel compiled for the jury a "packet" of the transcribed portions of the police interview on which the Crown had cross-examined the appellant. The jury was not provided with transcripts of the actual cross-examination on these excerpts of the police interview. Nor does it appear to have been suggested that the jury be permitted to listen to the audio recordings of the relevant portions of the cross-examination. The procedure followed appears to have been with the agreement of counsel on both sides." (Para 21)

The Law Regarding Exhibits not In Evidence

"Questions from deliberating juries are important. Likewise, the answers. Each question, clarified by inquiry should the circumstances warrant, should be answered clearly, correctly, comprehensively and in a timely way. If necessary for an understanding of the response, the answer may require a reminder about something said before, as for example, during the charge: R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 528-29, citing R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 759-60; R. v. Ellis, 2013 ONCA 9 (CanLII), 293 C.C.C. (3d) 541, at paras. 40-41." (Para 34)

"Sometimes, as in this case, a deliberating jury requests portions of the evidence adduced at trial. The testimony of witness X. What witness Y said about a particular event or on a specific topic. But, from time to time, deliberating juries ask for something that is not “evidence” in the true sense. A statement on which a party cross-examined a witness, for example, under ss. 9(2), 10(1) or 11 of the CEA. A report to which an expert referred or on which she was cross-examined, but which was not filed as an exhibit. Something used by a witness to refresh his or her memory. How is a trial judge to respond to questions or requests of this kind? Or, put more generally, to queries that seek materials used in the examination or cross-examination of witnesses, but which are not filed as exhibits at trial?" (Para 35)

"The evidentiary value of a prior inconsistent statement on which a witness is cross-examined does not depend on whether the statement or relevant portions of it are filed as a numbered exhibit. The prior inconsistent statement of a nonaccused witness has no intrinsic evidentiary value. That a non-accused witness has given a prior statement inconsistent with his or her testimony is a factor for the trier of fact to take into account in assessing the credibility of the witness at trial. It is only by adoption by the non-accused witness at trial of the truth of the contents of the prior statement that those contents become available for substantive use." (Para 46)

"Where the witness cross-examined on the prior inconsistent statement is the accused, the situation is different. The statement or relevant portion on which the accused is cross-examined is received for substantive purposes under the admissions doctrine even without adoption. The statement also retains its impeachment value as a prior inconsistent statement." (Para 47)

"In this case, the trial Crown's purpose in cross-examining the appellant on various parts of his out-of-court statement was to impeach his credibility as a witness who, in his trial testimony, had denied any criminal conduct. The portions of the out-of-court statement used for impeachment purposes were not filed as numbered exhibits, and thus, should not have been provided to the jury for review during deliberations." (Para 48)

"In my view, the trial judge should have advised the jury that because the excerpts they requested were not made exhibits at trial, those excerpts were not part of the evidence and could not be provided to them for review in their jury room. The judge should then have told the jury that arrangements could be made to replay or read back those portions of the cross-examination on the excerpts from the out-of-court statement. In this way, the jury not only would have heard the substance of the out-of-court statement with which the appellant was confronted, but also the appellant's explanation of the inconsistency, if any, between the statement and his trial testimony." (Para 50)

Exhortations to a Jury

The Facts

The jury was twice exhorted after expressing the they were unable to agree on May 1. (Paras 88-90)

On May 3, one of the jurors sent the following note:

"I will be unable to attend court on Thursday as my wife ... will have to leave home [at] 7:30 am. ... We have 18 cats at home that require attention. We have no other way to look after them. If the trial closes today, I will be okay. If not I have a major problem." (Para 91)

"The trial judge did not think it necessary to make a decision about the continued participation of the affected juror at that time. The problem with the juror's continued participation would not arise until the following day, May 4, 2017. The trial judge said nothing to the jury about the note." (Para 92)

"About one and one-half hours later, the jury indicated that it had reached a verdict. Court was re-assembled, the verdicts announced and recorded." (Para 95)

The Law and Application

"The purpose of an exhortation is to encourage jurors to reach a unanimous verdict by reasoning together and considering each other’s views, as well as avoiding disagreements based on fixed, inflexible perceptions of the evidence. Exhortations represent an attempt to assist in the deliberation process, not to influence the content of the jury’s discussions: R. v. R.M.G., 1996 CanLII 176 (SCC), [1996] 3 S.C.R. 362, at paras. 16-17, citing R. v. Sims, 1992 CanLII 77 (SCC), [1992] 2 S.C.R. 858, at p. 865." (Para 105)

"The contents of an exhortation must not impose any form of pressure on deliberating jurors; likewise, it must eschew reference to extraneous or irrelevant factors. What is said should not invite jurors to compromise honestly held views of the evidence for the sake of conformity, or impose any deadline for reaching a verdict: R.M.G., at para. 26. An exhortation should avoid putting the situation to the jury in confrontational terms of opposing sides. Rather, it should appeal to individual jurors to reason together to achieve a verdict: R.M.G., at para. 40." (Para 106)

"Jury exhortation must also be free of anything that would have the effects of undermining each juror’s oath or affirmation to give a true verdict according to the evidence: R.M.G., at para. 46. Nor should the instructing judge attempt to influence the result by expressing an opinion about the ultimate result of the deliberations: Sims, at p. 868." (Para 107)

"To determine whether an exhortation has crossed the line between what is proper and what amounts to coercion, it is necessary to consider the entire sequence of events leading up to the direction. For example, the language used in the main charge to advise jurors of the right to disagree. The substance of any notes received from the jury. The language used by the trial judge in her instructions. And any indication by the jury that it was “useless to continue” deliberations: R. v.  Littlejohn and Tirabasso (1978), 1978 CanLII 2326 (ON CA), 41 C.C.C. (2d) 161 (Ont. C.A.), at pp. 168-69; see also Sims, at p. 866-67 and R.M.G., at para. 24." (Para 108)

A final point concerns the significance of the time that elapses between the exhortation and verdict. Where the time is brief, this may afford a clear indication of the significance the jury attached to the exhortation and of its coercive impact on the minority: R.M.G., paras. 42-43, citing R. v. Palmer, 1969 CanLII 946 (BC CA), [1970] 3 C.C.C. 402 (B.C. C.A.), at p. 412." (Para 109)

"The number and substance of the questions asked by the jury supports a reasonable inference that the jurors were clearly troubled about this case and had difficulty recalling at least some aspects of the evidence of the two critical witnesses: the appellant and the complainant." (Para 111)

"In these circumstances, it was incumbent on the trial judge to make it clear to the jury that there was no time limit on their deliberations. The trial judge ought to have told the jury that the concerns of the juror who had commitments could and would be addressed later in the day should they not reach a verdict by then. The failure of the trial judge to address these issues with the jury in the circumstances of this case constitutes an error that affected the fairness of the trial." (Para 115)

Failure to Relate the Evidence to the Legal Issues in Instructions

The Facts

"In her final instructions to the jury, which she vetted with counsel in advance of delivery and provided a written copy to jurors, the trial judge summarized the essential elements of each offence with which the appellant was charged. On each count, she emphasized that the "real issue" for the jury to decide was whether the conduct alleged by the complainant ever took place." (Para 121)

"In her instructions on the counts of sexual interference, the trial judge summarized the evidence on the essential elements of the complainant's age and the requirement of touching. As for the essential element of "sexual purpose", the trial judge simply reminded the jury that the evidence she had reviewed on the touching element also applied to that of sexual purpose." (Para 123)

"In her instructions on the count of sexual assault, the trial judge incorporated by reference the evidence she had summarized on the counts of sexual interference." (Para 124)

The Law and Application

"First, apart from exceptional cases in which it would be needless to do so, a trial judge must review the substantial parts of the evidence adduced at trial and give the jury the position of the defence, so that the jury may appreciate the value and effect of that evidence, and how they are to apply it to their findings of fact: Azoulay v. The Queen, 1952 CanLII 4 (SCC), [1952] 2 S.C.R. 495, at pp. 497-98, 503; R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 14." (Para 133)

"Third, a trial judge need only review relevant evidence once and is under no duty to repeat its substance in connection with every issue to which the evidence may relate. What is essential is that, taking the charge as a whole, the jury is left with a sufficient understanding of the facts as they relate to the issues: Jacquard, para. 14, citing Cluett v. The Queen, 1985 CanLII 52 (SCC), [1985] 2 S.C.R. 216, at p. 231." (Para 135)

"At the outset, I readily acknowledge the brevity of the trial, the paucity of witnesses and the uncomplicated nature of the positions advanced and the legal issues in play. But even in such cases, it remains the obligation of the trial judge to review the substantial parts of the evidence adduced at trial and give the jury the position of the defence, so that the jury may appreciate the value and effect of the evidence and how they are to apply the law to their findings of fact." (Para 139)

"In this case, the principles in R. v. W. (D.) were in play as the trial judge instructed the jury. The defence position extended beyond reliance on the unqualified denial provided by the appellant in his testimony at trial, which the jury was entitled to reject. The defence also challenged the credibility of the complainant and the reliability of her assertions. In these circumstances, it was incumbent on the trial judge to ensure the jury’s understanding of the value and effect of evidence that tolled against the complainant’s credibility and the reliability of her account. A serial review of various aspects of the evidence adduced at trial was inadequate to this task. After all, rejection of the appellant’s denial, without more, does not equate with proof beyond a reasonable doubt of his guilt." (Para 140)

Cumulatively the errors resulted in a miscarriage of justice and a new trial was ordered (Para 141)

R v Finck (NSCA)

[June 18/19] – Ineffective Assistance of Counsel: Obligation to Inform Accused's Decision to Testify, Failure Cross Examine and Lead Relevant Evidence – 2019 NSCA 60 [Beveridge J.A., Oland J.A., Farrar J.A.]

AUTHOR’S NOTE: Sexual offences have become very complicated to defend.  The trend has been that that ever more social media and digital communications available to the accused are relevant to the issues that court is considering while legal requirements for admissibility are getting more complicated by new legislation (not specifically dealt with in this case).  Here, counsel at trial failed to follow up on Facebook messages due to a fear the complainant not admitting them and then a practical concern that the accused would have to be called to tender them.   Trial counsel also failed to follow up by cross or leading evidence as to an STI that was relevant to whether the act occurred. 

Pertinent Facts of the Offence

"It was undisputed that in November 2016, the appellant lived in a trailer in Amherst. The complainant testified that in October 2016, she moved into the trailer. She was 16 years old, was taking drugs regularly, had left home, and was not attending school. While she lived at the appellant's place, B.O. and J.R. (two young male friends) stayed there. During her last week, A.S.G. (a female friend) was also at the trailer. According to the complainant, the appellant gave these young people a place to stay and provided them with drugs and alcohol." (Para 5)

"The complainant testified that the appellant had expressed an interest in a relationship with her. She described an incident sometime between 11:00 p.m. and 12:00 midnight on November 19, 2016 after she and the appellant went into her room to talk. She had been "probably drinking vodka ... probably like half, maybe, yes, three-quarters ... of a 30 or a quart, or a 40, if that's what it's called." She had also consumed "speed" and "weed" prior to the alleged incident, and "[m]ight have had a popper or two in my room ..." afterwards." (Para 6)

"According to the complainant, the appellant performed oral sex on her and then had sexual intercourse with her, despite her asking him to stop. The entire encounter lasted about 10 minutes. B.O. banged on the bedroom door, and the appellant left her bedroom and acted like nothing happened. B.O. and A.S.G. came into the bedroom. The complainant's evidence was that she "kicked [B.O.] out", started "freaking out", and told A.S.G that "we had to pack all my stuff." A.S.G. helped her pack. The two girls left the trailer the next morning." (Para 7)

"Constable Galloway testified that when he spoke to the complainant sometime in the first two weeks of January 2017 about an unrelated matter, he asked her about her relationship with the appellant. She told him that nothing had happened. On January 30, 2017, when he was investigating the complainant for theft of jewellery, she brought up the appellant's name. She asked the officer if he remembered asking her about him, and confirmed that she had earlier said that nothing had happened. Then the complainant said, "Something did happen" and that she had not consented. Constable Galloway took her statement. The appellant was arrested." (Para 9)

The Law - Ineffective Assistance of Counsel

"It is helpful to start with the principles relating to claims of ineffective assistance of counsel.  In R. v. Domoslai, 2018 NSCA 45 (CanLII), this Court wrote:

[36]      To be successful in an appeal based on ineffective assistance of counsel, then, an appellant must establish that his counsel was incompetent (the performance component) and that a miscarriage of justice resulted (the prejudice component). Only when both are established will this Court interfere. If the prejudice component is not demonstrated, it is not necessary to go further and examine the performance component. (Para 25)

In order to assess the performance component, it is necessary to carefully examine why trial counsel decided not to put the Facebook messages to the complainant.  As Saunders, J.A. explained in West, incompetence is measured by applying a reasonableness standard.  There is a strong presumption that counsel’s conduct falls within a wide range of reasonable, professional assistance.  In R. v. Archer (2005), 2005 CanLII 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), the Ontario Court of Appeal reiterated that standard and presumption, and explained why an appellate court’s review should be deferential:

[119]   … the appellant must demonstrate that counsel's acts or omissions amounted to incompetence. Incompetence is measured against a reasonableness standard. That assessment is made having regard to the circumstances as they existed when the impugned acts or omissions occurred. Hindsight plays no role in the assessment. Allegations of incompetent representation must be closely scrutinized. Many decisions made by counsel at trial will come to be seen as erroneous in the cold light of a conviction. The reasonableness analysis must proceed upon a "strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance": R. v. G.D.B. (2000), 2000 SCC 22 (CanLII), 143 C.C.C. (3d) 289 at 298 (S.C.C.)." (Para 32)

"In R. v. Ball, 2019 BCCA 32 (CanLII), the British Columbia Court of Appeal underscored the high threshold and gave some examples of when a trial lawyer’s performance might be found to be unreasonable:

[108]   The bar for establishing professional incompetence is high and surpassing it is challenging. It is strongly presumed that counsel's conduct fell within the wide range of reasonable professional assistance, deference will be accorded to counsel's strategic and tactical decisions and the "wisdom of hindsight" has no place in the analysis. Nevertheless, unreasonable acts or omissions by counsel might include a failure properly to challenge the Crown's case, bring a necessary application or make duly diligent efforts to adduce relevant defence evidence, any of which could amount to assistance so deficient that it was ineffective. Alternatively, unreasonable acts or omissions might include representing the accused while in a compromised state or failing to comply with instructions, both of which could deny real assistance altogether and thus taint the adjudicative process by which the verdict was reached: Aulakh at paras. 46-48; G.D.B. at paras. 27, 29. (Para 33)

"In R. v. G.K.N., 2016 NSCA 29 (CanLII), this Court commented that the failure to cross-examine may lead to a miscarriage of justice:

[72] Cases which find a miscarriage of justice arising from a failure to cross-examine, often involve the failure to pursue obvious routes of impeaching the witness, usually from prior inconsistent statements: R. v. M.B., 2009 ONCA 524 (CanLII); R. v. T.P., 2002 CanLII 49360 (ON CA), 160 OAC 118; and R. v. J.B., 2011 ONCA 404 (CanLII). …" (Para 34)

The Facebook Messages and the Decision Not to Testify

The Facts

"The Facebook messages purportedly from the complainant to the appellant read as follows:

(a) on November 26, 2016 at 15:54: "you know we never did anything sexual right? me and you matt." [Emphasis added]

(b) on November 26, 2016 at 21:08: "... it seemed to me you were just looking for sex and you didn't get it so your with another girl to try again ...." [Emphasis added]

(c) on December 3, 2016 at 23:26: "I need somewhere to go. Please. I'm gonna come home. Please."

(d) on December 4, 2016 at 12:42: "Hey, Are you getting green today ... If you are would you buy it off me ... I really need the money for food and things."

(e) on December 6, 2016 at 08:47: "is [J.] there with my phone. cause im legit gonna let the cops go everywhere i stayed to get it, starting with your place. hide the drugs lol youll do more time for speed than sleeping with minors."" (Para 28)

"These messages could be interpreted as contradictory to the complainant's evidence that a sexual assault had taken place. They might also show a willingness to return and stay at the home of someone she testified had sexually assaulted her and she never wanted to go back to, to do business with him, and to manipulate the authorities to get her own way." (Para 29)

"None of these messages were put to the complainant on cross-examination. The trial judge did not know of them when he assessed her credibility." (Para 30)

"In summary, trial counsel believed that whether the complainant denied or acknowledged sending the messages, he would have to call the appellant to the stand to refute her evidence. Since he did not think the appellant would be a good witness and did not want further evidence of whatever went on in his trailer, he did not want him to testify or be cross-examined." (Para 39)

"It was clear from his evidence that trial counsel believed that if he raised the Facebook communications, whether the complainant denied or acknowledged them, then unless he called someone to refute them, the onus of proof would shift from the Crown's witness to the credibility and reliability of the accused. This is fundamentally incorrect. The onus in a criminal proceeding always remains on the Crown to prove its case beyond a reasonable doubt. It never shifts to the accused." (Para 44)

"In his evidence, trial counsel stated that the appellant’s defence was his denial of any sexual contact with the complainant.  Asked how, given the circumstances of this case as he saw them and the defence strategy, the appellant was ever going to get any evidence of his denial before the judge, Mr. Rideout responded that, “He wasn’t going to be able to … because I didn’t feel he should be called as a witness …”. (Para 51)

"In its factum, the Crown properly pointed out that the decision of whether to testify at trial belongs to the accused.  Counsel should advise on the issue, but the ultimate decision is to be made by the client.  See for example R. v. G.D.B., 2000 SCC 22 (CanLII) at ¶34; R. v. W.E.B., 2012 ONCA 776 (CanLII) at ¶5 and 6; Archer at ¶139." (Para 52)

"We agree with the appellant that the decision to testify must be properly informed. In this case, the appellant decided not to do so. However, his decision was informed by his trial counsel's flawed understanding of the importance and admissibility of the Facebook Messenger communications and his fundamentally incorrect beliefs that he would have had to call the appellant to avoid an adverse inference and that, had he called the appellant, the judge would shift the focus from the credibility and reliability of the complainant to that of the appellant." (Para 54)

Failure to Cross-Examine on STI

"The appellant attached a copy of the complainant's statement to the police to his affidavit. The complainant claimed she had contracted an STD as a result of the appellant's alleged sexual assault. She stated "he was the only one that it could have been" and later repeated, "I'm sure it was him."" (Para 56)

"It was undisputed that the appellant had told his trial counsel that that was impossible as he did not have an STD. The appellant's evidence was that he was not advised in advance of the trial to obtain medical confirmation of the absence of an STD. After the trial, he was tested and the test results were "negative." A copy of those results was attached to his affidavit." (Para 57)

"Trial counsel reiterated he felt that they had enough to undermine the Crown's case. According to Mr. Rideout, he had viewed the topic of the STD as a relevant issue. While his affidavits were silent on this point, he testified that he had asked the appellant to get medical evidence. He had done so verbally and not made any file notations about this." (Para 58)

"Trial counsel did not take further issue with the Crown's objection or the suggestion that s. 276 was applicable, or draw the judge's attention to the police statement and explain why his proposed line of questioning was relevant. He felt the judge did not want him "to go into that" and again emphasized that they were dealing with a 16-year-old girl and "it was a road I really didn't want to go down." To him, it would be a credibility issue and he thought her credibility had already been undermined by her intoxication and how and when she had reported the alleged sexual assault." (Para 60)

"Cross-examination of the complainant on her claim of contracting an STD from the appellant went directly to the credibility of her accusation of sexual assault. Trial counsel himself described it as a relevant issue. Yet, he did not pursue this issue. His inadequate or non-response when challenged by the Crown and the court resulted in the loss of an important opportunity to impeach the complainant. His conduct did not fall within the wide range of reasonable, professional assistance and resulted in a miscarriage of justice." (Para 61)

"In the circumstances of this case, the appellant met the burden of showing that trial counsel's acts or omissions amounted to incompetence and that incompetence resulted in a miscarriage of justice. The Crown's concession was appropriate." (Para 62)