Credibility Inferences based on Tailoring Evidence in Sexual Assault Cases led to Overturning a Conviction

Published On: May 26,2020

Credibility in Sexual Assault Cases - Tailoring Evidence
Credibility in Sexual Assault Cases – Tailoring Evidence

In Regina v. M.D., 2020 ONCA 290, the Court of Appeal overturned a conviction for sexual assault under section 271 of the Criminal Code of Canada based on an erroneous credibility finding.   The main defence at trial was consent and honest but mistaken belief in consent On appeal, the appellant raised a number of grounds of appeal relating to the trial judge’s reasons for disbelieving the appellant. This ground of appeal was granted and a new trial was ordered.  As one reason for rejecting the appellant’s evidence, the trial judge stated that he “formed the impression” that “many of [the appellant’s] answers were tailored precisely to the evidence he knew would be forthcoming or to the forensic disclosure” (at para. 47).  The representative passages of the Courts reasons tills the jurisprudence on this subject:


[22]      The issue first arose in relation to Crown cross-examination of the accused regarding the disclosure, during jury trials. In R. v. White (1999), 1999 CanLII 3695 (ON CA), 132 C.C.C. (3d) 373 (Ont. C.A.), and in R. v. Schell (2000), 2000 CanLII 16917 (ON CA), 148 C.C.C. (3d) 219 (Ont. C.A.), the Crown had tried to suggest to the accused in cross-examination that his answers were formed based on his knowledge of Crown disclosure.


[23]      In White, Doherty J.A. acknowledged the basic logic underlying an allegation that the accused tailored his evidence to the disclosure, but explained that cross-examination of the accused suggesting such reasoning is improper and potentially prejudicial, stating, at para. 20: “That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons.” He directed trial judges to ensure that such any such inference in cross-examination be eradicated: at para. 20. As the trial judge in that case had given immediate instructions to the jury to undercut the improper suggestion put forth by the Crown, the appeal was dismissed.


[24]      In Schell, the following year, Rosenberg J.A. repeated the same admonition against the Crown’s insinuation, in cross-examination and in a closing address, that the accused was tailoring his evidence to the disclosure he had received and the testimony he had heard. Rosenberg J.A. stated, at para. 57: “It was wrong and unfair for Crown counsel to attempt to exploit the appellant’s exercise of his rights.”


[25]      This court has applied similar reasoning in the context of judge-alone trials. In R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, the trial judge’s analysis of the credibility of the accused included the observation that the appellant’s testimony came “long after disclosure was available to him and having regard to the totality of the evidence”: at para. 15. On appeal, this court approached the case as one of first instance, given that the issue was not improper Crown use of disclosure against the accused, but improper use of it by a trial judge in his reasons.


[26]      In his analysis, Sharpe J.A. noted two circumstances where, contrary to the general principle, the Crown may cross-examine an accused regarding disclosure: Thain, at para. 24. One such situation arose in White, where the accused used telephone records produced prior to trial to assist with times and dates of meetings with the complainant, and the Crown was entitled to bring out that he had had access to the records before testifying: see White, at para. 22; R. v. Cavan (1999), 1999 CanLII 9309 (ON CA), 139 C.C.C. (3d) 449 (Ont. C.A.), at para. 45, leave to appeal refused, [1999] S.C.C.A. No. 600; R. v. Kokotailo, 2008 BCCA 168, 232 C.C.C. 279, at paras. 53-58. Similarly, the Crown may cross-examine the accused on disclosure to substantiate a claim of recent fabrication or concoction of an alibi by the accused: see R. v. Khan (1998), 1998 CanLII 15007 (BC CA), 126 C.C.C. (3d) 523 (B.C.C.A.), at paras. 51-52, leave to appeal refused, [2001] S.C.C.A. No. 126; R. v. Marshall (2005), 2005 CanLII 30051 (ON CA), 77 O.R. (3d) 81, at paras. 69-75, leave to appeal refused, [2006] S.C.C.A. No. 105.


[27]      Sharpe J.A. also referred to R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.), in which the Crown argued in its closing address to the jury that the accused had concocted his evidence after receiving disclosure, but never put that proposition to the accused. The court found the Crown’s conduct unfair and prejudicial both because of the misuse of disclosure against the accused and the failure to give the accused the opportunity to respond to the charge of recent fabrication: Peavoy, at p. 625.


[28]      Taking this jurisprudence into account, Sharpe J.A. found that the trial judge in Thain had no legal basis to use the fact of receiving disclosure against the accused. None of the exceptions applied, nor had the Crown ever suggested to the accused that he recently fabricated his evidence. Any comment on the accused’s use of the disclosure thus first emerged in the trial judge’s reasons. In these circumstances, Sharpe J.A. concluded, at para. 29, that in a judge-alone trial, fairness is undermined if the accused has no opportunity to respond to allegations of fabrication on the basis of Crown disclosure:


In my view, the fact that the accused enjoyed his constitutional right to disclosure had no bearing on his credibility in this case and the trial judge erred in law by stating that it did. Even if the disclosure might possibly have had a bearing on credibility, trial fairness demanded that the accused be confronted with the suggestion and afforded the opportunity to refute it or make submissions before being disbelieved on that account.


[29]      The issue arose again in R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170, another sexual assault trial by judge alone. In her reasons for judgment dealing with her credibility assessment of the accused, the trial judge discounted his evidence because he had had the benefit of listening to the legal arguments presented by his counsel and by the Crown and therefore understood the issues at stake: 2010 ONSC 8038. At paras. 10-14 of her reasons, she made several comments that were the subject of the accused’s appeal to this court:


Mr. Jorgge had the benefit of listening to the various arguments raised by his counsel at the voir dire. He also understands now that consent to sexual relations means more than a woman not protesting as sexual activity progresses.


I conclude that this evidence given by Mr. Jorgge at the trial when he said “that unless I gave him something, I was never going to get out of there” was evidence carefully tailored to fit the arguments raised by the Crown and his counsel during the voir dire.


I conclude that the evidence given by Mr. Jorgge in his statement about the sexual activity that took place on July 18, 2008, and in particular whether Ms. R. was moving or was inert as she was sleeping or passed out, is truthful. I conclude that his commentary given at the trial is simply an attempt by Mr. Jorgge to distance himself from any concessions made in the statement relevant to the issue of consent now that Mr. Jorgge has a better understanding of the issues.


I conclude that his evidence given at the trial, when it conflicts with his prior statement, is an attempt to challenge the ruling as to the voluntariness of his statement after hearing the capable arguments of his counsel. In drawing this conclusion I have considered all of the statement and all of Mr. Jorgge’s evidence at this trial.


[30]      While this court again acknowledged that there may be a “natural temptation” to reason in the way the trial judge did, that temptation must be resisted: at para. 12. It subverts an accused’s statutory right and obligation to be present at his or her trial under s. 650(1) of the Criminal Code, which is grounded in the guaranteed Charter rights to a fair trial and to make full answer and defence: ss. 7 and 11(d). In Jorgge, this court explained that a trial judge is entitled to consider inconsistencies between an accused’s statement to police and his testimony at trial, but may not attribute any such inconsistencies to the accused’s presence at the voir dire.


It was an error of law for the trial judge to criticize the appellant and impugn his credibility on the basis that his evidence responded to the Crown evidence at trial (or at the preliminary hearing), when the appellant was constitutionally entitled to receive Crown disclosure and be present at his trial.  The court did not agree with the Crown’s submission to apply the curative proviso.  While the tailoring issue was only one of the concerns the trial judge had with the appellant’s testimony, there was no basis to believe it was an unimportant one.  This error was far from harmless. It went to the heart of trial fairness and the right to make full answer and defence.


If you have been charged with Sexual Assault under Section 271 of the Criminal Code of Canada, contact Mr. J.S. Patel, Barrister at 403-585-1960 for a consultation.