R. v. Sebastian

R. v. Sebastian Collection Decisions of the Court of Appeal Date 1999-11-08 Docket numbers C29546 Judges Abella, Rosalie Silberman; Laskin, John Ivan; Rosenberg, Marc Subject Criminal Decision Content DATE: 19991108 DOCKET: C29546 COURT OF APPEAL FOR ONTARIO ABELLA, LASKIN and ROSENBERG JJ.A. BETWEEN: ) ) Melvyn Green HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) - and - ) Erika Chozik ) for the respondent ANTHONY SEBASTIAN ) ) Applicant/ ) Appellant ) Heard: June 11, 1999 ) On appeal from the conviction imposed by a jury dated March 17, 1998 and a sentence imposed by The Honourable Mr. Justice Dunn dated April 23, 1998. ABELLA J.A.: [1] Anthony Sebastian was found guilty by a jury of sexually assaulting a 16 year-old complainant. The trial was essentially a credibility contest. The 16 year-old complainant alleged that she was assaulted by the 50 year-old appellant Sebastian, a medical doctor, on an evening when she was babysitting for her neighbour, Grace Gyles. Dr. Sebastian, who was involved in a close personal relationship with Ms. Gyles, denied that the assault took place. A previous trial on the same charge ended in a mistrial. The appellant was sentenced to 30 months imprisonment. [2] The appellant argued that as a result of a number of serious errors, the trial was rendered unfair and the jury’s verdict unreasonable. The determinative error that supports the appellant’s position, in my view, involves the evidence of two women who negotiated with the complainant to induce her not to give evidence at trial. [3] The complainant lived with her mother in the upper unit of a duplex. She babysat for Ms. Gyles at least once a week for a year prior to the night she said she was assaulted by Dr. Sebastian. [4] The lower unit was occupied by Grace Gyles, her brother, and her two young sons. She had a full-time job as a computer support technician for Peel Region, and a part-time job as a bartender in a nightclub. [5] On the night of March 3, 1995, the complainant said she decided to sleep over at Ms. Gyles’ house, as she had on a number of previous occasions, because she had a test the next day at school and did not want to have to wake up and return to her own apartment when Ms. Gyles came home late from work, as she often did. It was the evidence of the complainant that she went to bed at around 1:00 a.m. in the bedroom belonging to Ms. Gyles’ brother. [6] Ms. Gyles came home at around 3:00 a.m. with Dr. Sebastian, to whom the complainant had been introduced on one occasion several weeks earlier. The complainant said she let Ms. Gyles and Dr. Sebastian into the apartment, then went back to bed. It was her evidence that sometime later, Ms. Gyles came into the room in which she was sleeping, woke her up, and invited her to join her and Dr. Sebastian in bed. The complainant stated that she answered “hell no” when Ms. Gyles said “Tony wants to know if you’d like to join us in bed.” The complainant said that Ms. Gyles giggled and then left. [7] Some time later, according to the complainant, Ms. Gyles returned and woke her again saying that Dr. Sebastian wanted the complainant to “tell him herself.” When the complainant asked why this was necessary, Ms. Gyles replied that “if she just told him herself, it would be all over.” Her evidence was that she followed Ms. Gyles to her bedroom to tell Dr. Sebastian that “whatever they had in mind I wasn’t really up to it, and I just didn’t want to partake in anything. I wished they’d leave me alone. I had a test the next morning and basically they were irritating.” [8] When she went into Ms. Gyles’ bedroom, the complainant found Ms. Gyles and Dr. Sebastian in bed under the covers. She told Dr. Sebastian that she wanted to go to bed and was not interested in “whatever they were up to.” She said Dr. Sebastian called her over, held her wrist, and said they were not going to hurt her or do anything that she did not want to do. He then loosened his grip and the complainant went back to her room and went back to sleep. It was her evidence that she did not return to her own apartment upstairs because she did not want to have to explain to her mother what had happened. In any event she felt safe because the children were awake and she knew that Ms. Gyles did not want the children to know there was a man in the house. [9] The complainant’s next memory is of someone coming into the room and putting a hand on her shoulder. She turned and saw the appellant who, she said, started climbing into her bed. He had a towel wrapped around his waist. He held the complainant’s hands above her head, then wedged one of his legs between hers. The complainant said that she initially resisted, but that Dr. Sebastian was successful in lowering her underwear. He started to penetrate her when the complainant stopped him by grabbing his penis and squeezing it. She said that Dr. Sebastian then said “Come with me” and left the room. The complainant put her clothes on and followed Dr. Sebastian into Ms. Gyles’ room where she was asked by Ms. Gyles “what’s wrong?” [10] She left Ms. Gyles’ apartment at about 5:00 a.m. after phoning her boyfriend. The complainant did not testify as to what she told her boyfriend had happened. Her boyfriend confirmed that the complainant called him at around 5:00 a.m. in the morning, that she was upset and breathing hard. It was a ten minute conversation which ended, according to the boyfriend, when Ms. Gyles came downstairs. [11] The complainant testified that she was not planning to tell her mother about what had happened. At school the next day, she was upset and went home. Later that evening, she told her mother what had happened. Her mother, after calling an aunt, called the police. The complainant and her mother attended the police station either that day or the next one to tell the police what happened. The complainant gave no evidence at trial about what she told her mother or the police. [12] The mother’s evidence was that the day after the alleged assault, the vice-principal called from school to request permission for her daughter to go home early, which she gave. When she returned from work at around 6:30 p.m., she found her daughter in her own room, looking as if she were “coming down with something.” The complainant’s mother left the apartment and, when she returned at around 10:00 p.m., found her daughter still in bed. When she checked in on her, her daughter asked her to stay, a request she had never made before because their relationship had been a fractious one. [13] After about 5 minutes, the complainant went to her mother’s room and told her that something had happened. According to the mother, the complainant told her that Ms. Gyles had awoken her the night before and asked her to join her and Dr. Sebastian in bed. She said that later, when she was again awoken by Ms. Gyles, “some guy [was] standing there without clothes on” and that “the guy held onto to her and tried to pull her pants down while Ms. Gyles just laid there.” [14] Ms. Gyles’ evidence at trial contradicted that of the complainant. She said that no arrangements had been made for the complainant to sleep over and that Ms. Gyles’ brother never offered his room to the complainant. Whenever the complainant had slept over, she had slept on the couch. [15] When Ms. Gyles returned home with Dr. Sebastian on the morning of March 3, 1995, she said they immediately went to her bedroom because as a rule she did not want her children to know if a man was staying over night. Ms. Gyles stated that Dr. Sebastian did not leave her bedroom until the next morning. One of her sons knocked on her bedroom door at around 4:00 a.m. so she got up and took him back to his room. When she did so, she said, she saw the complainant downstairs studying. She went to her bed and did not see the complainant again that day. She denied asking the complainant to join her and Dr. Sebastian in bed, denied that either she or Dr. Sebastian went into her brother’s room, and denied that the complainant ever came into her bedroom that evening. [16] Ms. Gyles said that she would not have permitted Dr. Sebastian to wander out of the bedroom because of her desire that the children not see a man in the house. Dr. Sebastian, who had been to Ms. Gyles’ home on several occasions, knew that she did not want the children to see a man in the house because of her recent separation from their father. As a result, Dr. Sebastian confirmed that when he came to her home, he went straight to her bedroom. [17] Dr. Sebastian’s evidence was that when he and Ms. Gyles came home sometime after 3:00 a.m. on March 3, 1995, the complainant was on the couch in the livingroom. He and Ms. Gyles went directly to Ms. Gyles’ room where they spent the night. He denies leaving Ms. Gyles’ room at any time during the night and says that he left her home at approximately 8:00 a.m. the next morning. He denies all of the sexual conduct alleged by the complainant. [18] On March 5, 1995, because the complainant had told the police her assailant’s name was “Mike, Michael or John”, the police were looking for someone with that name. After speaking to Ms. Gyles, the police were contacted by Dr. Sebastian, who volunteered the information that he was at Ms. Gyles’ home between Thursday, March 2 and Friday, March 3, 1995. [19] Dr. Sebastian was fully co-operative with the police in their investigation and telephoned them immediately after learning from Ms. Gyles, who was interviewed by the police on March 14, 1995, that he might be involved. He attended at the police station, where he denied the allegations. [20] A substantial portion of the evidence led by the Crown involved discussions the complainant and her mother had with two women known as “Thourla” and “Kadine.” The complainant’s evidence was that about a year after the assault, while she was at the hairdresser’s, her mother phoned and told her that two women were coming to speak to her about something. The two women were very friendly on their first meeting, and Kadine told her that she had heard about the case. The two women said that while they did not know Dr. Sebastian personally, they were doing a favour for a friend. [21] The mother’s evidence was that both women came to her office, wanting to help her daughter. Her conversations with the two women continued over a period of months. [22] One of the women offered the complainant help and money. During that first meeting and subsequent conversations over the next five months, various sums were discussed, initially including $10,000, a cruise and a job for the complainant and a friend of hers. After further negotiations, the offer was revised to $16,000. The purpose of the offers was to encourage the complainant to recant her allegations. As the complainant said in her evidence: Q. And what, what was the message that Kadine brought to you, what was the meeting about? A. She said that she had heard about the case. Q. When she said ‘the case’ did you know what case she was talking about? A. Yes. Q. What case was that? A. The trial between me and Mr. Sebastian. Q. And so did she, did she make reference at all to anything about the case or did she just refer to it as ‘the case’? A. I don’t remember how she put it. She said that she didn’t know, she didn’t know the accused personally but she was doing a favour for a friend. Q. And what was, what was the favour, what was…what did she say? A. She wanted to see if she could help me and give me money, or something, so that…I don’t know exactly how it was put, but some, by some method he wouldn’t be going to jail. Q. So when you said she would give you some money, did you talk about money? A. Yes. Q. What was said about money? A. Some sums came up in the thousands. A cruise was mentioned. Q. So there was thousands of dollars, an actual figure or was it— A. They said, well, they made it seem like money was no object, so whatever I wanted. Q. And you say a cruise was, was spoken of? A. Yes. Q. Who spoke of the cruise? A. I don’t remember. Q. Did you bring the cruise up? A. No, no actually they asked me if I wanted to go anywhere. Q. And other than money and a cruise was anything else talked about in terms of things offered? A. A job. Q. And where was the job going to be, do you know? A. Where they worked, apparently. Q. Did you know where they worked? A. I think they worked at an insurance company, I think Manu Life, or something. Q. Anything else other than money, a cruise, a job? A. No. Q. And what, did...was there any discussion about what you would do in order to get that money or cruise or a job? A. I believe there was but I don’t remember what we concluded. Well we didn’t conclude anything. I told them that I would have to call my mother and get back to them. Q. And what kind of things were discussed in terms of what...their expectations of you? A. They, they wanted me to write a letter to say that, just to say that I didn’t remember or to say that it never happened. Q. And when they suggested to you to say that you didn’t remember or that it never happened, how did you feel about that? A. I was upset. Q. Did you ever write a letter of that kind? A. No. No. [23] After the first meeting, the complainant told the two women that she would have to check with her mother and get back to them. There were no further personal meetings between the two women and the complainant, but negotiations continued via telephone, mostly with the complainant’s mother, who encouraged the complainant to keep talking to the women. [24] The complainant’s evidence was that she understood that in return for some counselling, money, a cruise and a job, she would be expected to write a note saying that she did not remember anything. She acknowledged that she participated in the conversations willingly and told the women what she wanted in exchange for such a letter. [25] The complainant stated that she was unclear about why the two women were taking to her, but thought they were out to “trick her” and eventually prove her to be a liar. She did not think that talking to them was wrong. As she said: Q. In terms of how you were feeling about any plan in relation to testifying, how did you feel about it yourself? A. I was offended that someone would basically try to defend him and get him off. I was also, I was suspicious. Q. What were you suspicious of? A. … I figured they were trying to trick me. [26] Neither the complainant nor her mother knew the two women prior to being contacted by them. The mother acknowledged that she told her daughter throughout to “lead them on.” She too was of the view that the women had not done anything wrong. [27] The complainant gave the following evidence about her conversation with Thourla and Kadine: A. My mother told me to keep talking to them. I didn’t exactly know why but I kept talking to them because she said so, so I was…I said, I stated that I wanted things. Q. and what did you tell her you wanted? … A. … I said I wanted $16,000.00 because I believe that sum came up during either the face to face meeting or one of the phone calls, and that I didn’t want the cruise. … Q. And when you were talking to these women, or to Kadine, and indicated to her what you wanted, what were you prepared to do to get that, to get this? A. Oh, nothing. The, the agreement was that I was supposed to write a note saying that I didn’t remember or…yeah, that was what they wanted me to do, basically, and sign my name to it. … Q. Had you talked to the police at the time you were telling Kadine what you wanted? A. No, my mother told me that she spoke to her lawyer, though. … Q. Was the accused, Mr. Sebastian, ever mentioned? A. Yes, she asked me if I knew what he did and if I knew him previously to what had happened, and I said no, to both questions, and previously, when we met face to face, she told me that he had, he had lost his practising licence, and that his daughter was upset with him and that he – THE COURT: Just a second, how far are we going? If you would perhaps tie the witness to the proper responses to the question. … [Crown counsel] Q. So she asked you, in this conversation Kadine asked you if you knew him and if you knew what he did, and you answered no to both of those questions? A. Yes. Q. And during this conversation is there any other discussion about Mr. Sebastian? A. Not that I can recall. Q. You say that you recall one other telephone conversation? A. yes. Q. And do you remember who that was with? A. That was with Thourla. Q. With? A. Thourla. Q. Do you remember any of the content of that conversation? A. Yeah, I…she, again, was trying to sum up what I wanted, and trying to persuade me to write the letter or do…she kept on asking me what am I going to get in return, as if she was trying to get me to say something. She was expecting a certain answer that she wasn’t getting. … Q. Was there any discussion of you doing anything other than writing a letter? A. Yes, I said that I didn’t have to write a letter, I just didn’t have to…I just wouldn’t show up and that the police didn’t know where I was. Q. And when you said that the police…you were saying this to Thourla, were you, or— A. Yes. Or Kadine. I don’t remember who I said that to. Q. And when you said that to them was that true that the police didn’t know where you were? A. No. Q. Why did you say that? A. Because I didn’t want to write the letter and I was being pressured. Q. Other than suggesting that you wouldn’t show up for court or the suggestion that you would write a letter, were there any other suggestion about what you might do? A. Not that I can recall. Q. You have indicated that this went on for about a month where there were a number of conversations between yourself and these two women? A. Yes. Q. Do you remember how it ended? A. No, after that they were dealing with my mother and I never got any orders to call them back or anything, so. Q. And you indicated that you didn’t want to write the letter and that is one of the reasons why you suggested you just wouldn’t go to court? A. Right. Q. Why didn’t you want to write the letter? A. Because I just, I figured they were tricking me. … Q. Did you report this to the police at any time? A. What they had one? Q. Yes. A. Yes, my mother told the police about it and I made a statement. Q. And do you remember how long afterwards, after you had these conversations, that you went to the police? A. No. It was a couple of months after. Q. And do you remember why you waited so long? A. Basically to me it was, it was my mother’s call, so I don’t know. Like I didn’t hear anything else from her. I didn’t ask about it because I knew that as far as I was concerned nothing…it wasn’t doing anything for me, and, you know, I just left it in her hands because I figured she knew what she was doing. She was getting legal advice. … [28] On cross-examination, the complainant admitted that she told the women that she would not go to court if she got the money: Q. Now, in exchange for these benefits, madam, you were going to keep yourself scarce from these court proceedings, correct? A. I told them I would keep myself scarce. Q. Or, if you went to court, you told them that you would say that you didn’t remember, right? A. I told them that, yes. [Defence counsel] Q. and you told them that you would not go to court if you go the money, right? A. Yes, I said that. [29] Five months later, in the fall of 1996, the complainant’s mother told the police about the negotiations with the two women and explained that she did not go to the police earlier because she was satisfied that “these ladies were playing a game and had not succeeded… .” [30] Kadine did not testify. The evidence of Thourla was that although she was acquainted with Dr. Sebastian and Ms. Gyles, she was not a friend of either and had only met them about a half dozen times over a period of three years. She had no contact with Dr. Sebastian about the case and had no reason to want to help him, but had heard about his problems with the complainant and had approached her and her mother out of curiosity. [31] Thourla’s evidence was that she and Kadine went to visit the complainant at the invitation of the mother. She said that rather than finding a young woman who was traumatized, she found someone who was more interested in the benefits being offered. The complainant called her two or three times and the mother called several more. Both Thourla and Kadine tape-recorded some of the telephone conversations because Thourla changed her attitude towards the complainant after meeting her. [32] Thourla stated, and the complainant conceded in cross- examination, that the complainant was “pretty well calling her own terms in demanding money and a cruise.” She increased her financial demand from $10,000 to $16,000 after deciding she was no longer interested in a cruise, and asked instead for a job for herself and her boyfriend in exchange for making herself “scarce from the court proceedings.” [33] There was virtually no evidence suggesting that Dr. Sebastian was in any way connected to the two women or had any involvement in their negotiations with the complainant and her mother. Dr. Sebastian testified that he had no role in the discussions and was “flabbergasted” when he learned of them. The complainant’s mother testified that from her conversations with the women, it was clear that Dr. Sebastian did not know what Thourla and Kadine were doing. The complainant herself said she knew that no money would be coming from him personally. [34] It was never clear from the evidence why these two women, who were only casual acquaintances of Dr. Sebastian and Ms. Gyles, had become involved in this case, but it is beyond dispute that the complainant was actively negotiating with them for a period of time for benefits in exchange for not testifying. [35] The appellant submits that the only conceivable purpose the Crown would have in bringing this evidence to the jury’s attention would be to create the inference that Dr. Sebastian was responsible for the negotiations initiated by these women and that this involvement was evidence that could lead to an inference of consciousness of guilt. The appellant notes, however, that in pre-charge submissions, the Crown conceded – and the trial judge agreed – that there was little, if any, evidence connecting Dr. Sebastian to the conduct of the women and therefore no evidence from which consciousness of guilt could be inferred. Since the evidence relating to the two women was conceded not to be probative of Dr. Sebastian’s guilt, the appellant submits that the trial judge had a duty to instruct the jury to disregard the evidence relating to these negotiations, or at least to caution them against using this evidence to infer Dr. Sebastian’s guilt. The appellant argues that the absence of a limiting instruction prejudiced Dr. Sebastian. [36] The Crown concedes that there was no connection between the conduct of the two women and Dr. Sebastian, but since all of the witnesses called by the Crown, including the complainant, categorically denied such a connection, it would have been apparent to them that the evidence was not capable of supporting an inference of consciousness of guilt. [37] No limiting instruction was therefore required since such an instruction would have been superfluous. In the Crown’s view, the only inference the jury could logically draw from the evidence was one that would either support or contradict the defence’s theory that the allegations were fabricated as part of a “shakedown.” [38] In his charge, the trial judge discussed the negotiations with Thourla and Kadine at some length. He did not, however, remind the jury that there was no evidence linking Dr. Sebastian to these negotiations. In fact, the only statement he made with respect to the use to be made of this evidence was the following: I don’t know whether the evidence of [Thourla] is going to help you much about the incidents of that night. Perhaps, of course, her evidence is reflective on the credibility of the complainant. [39] Because this was a case which turned entirely on credibility, the jury ought to have been cautioned against any improper use of the evidence about the negotiations. This evidence was a large part of the Crown’s case, and it is difficult to see how it could have been tendered for any purpose other than to suggest that Dr. Sebastian was in some way attempting to discourage the complainant from testifying. In the absence of a clear limiting instruction from the trial judge, this evidence could logically have led the jury to infer consciousness of guilt. [40] Although all the witnesses indicated that Dr. Sebastian was not directly involved, it was never made clear to the jury who the instigator of the negotiations was, or why these two women would have approached the complainant and offered her a substantial amount of money if they had no connection to Dr. Sebastian. Absent a proper limiting instruction from the trial judge, this evidence was highly prejudicial. Since, as even the Crown conceded, the evidence had “little, if any” probative value, the argument in favour of the need for a limiting instruction was even more compelling. [41] The Crown argued that the evidence it introduced about the negotiations between the complainant, her mother, and the two women, was helpful to the defence since it demonstrated that the complainant had a motive to fabricate, namely, so that she would have enough money to move out of her mother’s home. [42] It is true that the negotiations were in fact used by the defence to undermine the credibility of the complainant. It is also true, however, that the evidence of the negotiations was left as circumstantial evidence for the jury’s evaluation, not as evidence of consciousness of guilt. It is nonetheless the case that the evidence was highly inflammatory and could easily have led to an inference not supported by the evidence. The trial judge should have instructed the jury that there was no evidence that Dr. Sebastian was in any way involved with the negotiations and that no such inference should be drawn by the jury. [43] There is, in my view, no doubt that the appellant was prejudiced by the failure to alert the jury to the way the evidence could or could not be used. [44] It was not a question of how much weight the evidence should be given by the jury in its determination of guilt or innocence since the Crown conceded, and the trial judge agreed, that the evidence had no probative value and that weight was therefore not an issue. Given the Crown’s concession that there was no nexus between Dr. Sebastian and the two women, it is highly questionable whether this evidence should have been introduced by the Crown at all. [45] But having been introduced, a strong limiting instruction was required, telling the jury to disregard the evidence relating to the negotiations. Otherwise, the prejudice was overwhelming and the improper inference clearly available that Dr. Sebastian was somehow involved in the negotiations. This required the trial judge to tell the jury that there was no evidence linking Dr. Sebastian to the attempts at bribing the complainant. [46] It cannot be said that the verdict would necessarily have been the same if the trial judge had given a limiting instruction. Consequently, the curative provision is inapplicable in this case. The appeal is accordingly allowed, the conviction is set aside, and a new trial ordered. Released: November 8, 1999 “R.S. Abella J.A.” “I agree John Laskin J.A.” “I agree M. Rosenberg J.A.”