R. v. C., D.

R. v. C., D. Collection Decisions of the Court of Appeal Date 1999-09-27 Docket numbers C28069 Judges Doherty, David H.; Charron, Louise Vivianne; O’Connor, Dennis Subject Criminal Decision Content DATE: 19990927 DOCKET: C28069 COURT OF APPEAL FOR ONTARIO DOHERTY, CHARRON and O'CONNOR JJ.A. BETWEEN: ) ) James Lockyer and HER MAJESTY THE QUEEN ) Lisa Freeman ) for the appellant Respondent ) ) - and - ) Riun Shandler ) for the respondent D. C. ) ) Appellant ) ) Heard: September 20, 1999 ) On appeal from the conviction on May 7, 1997 by Mr. Justice Paisley, sitting with a jury.1 BY THE COURT: [1] After a trial by a judge and jury, the appellant was convicted of sexual assault and unlawful confinement and sentenced to imprisonment for a term of five years. The appellant appeals against his conviction and sentence. In view of our conclusion, we do not find it necessary to deal with the sentence appeal. The appellant raises five separate grounds of appeal against the conviction. Challenge for Cause: [2] The appellant, a black man, was charged with sexually assaulting a 16 year-old white woman. Prior to the selection of the jury, counsel for the appellant applied to challenge prospective jurors for cause and sought to put what he referred to as the “standard Parks question” to each of the potential jurors. The wording of the question that was approved by this court in Parks was as follows: Would your ability to judge the evidence in the case without bias, prejudice or partiality be affected by the fact that the person charged is black and the deceased is a white man? [3] The trial judge permitted counsel in this case to ask a question based on the fact that the appellant was black. However, he refused to permit counsel to include in the question any reference to the fact that the complainant was white because, in his view, the colour of the complainant was irrelevant to the issue of the possible partiality of the potential jurors. The result was that the trial judge refused to permit a question that would inquire into the possible partiality arising from the interracial nature of this alleged violent crime. In our view, he erred in limiting the question in this fashion. [4] In R. v. Parks (1993), 84 C.C.C. (3d) 353, this court quashed a manslaughter conviction where the accused was black and the deceased was white because the trial judge had refused to permit the defence to ask the potential jurors the question set out above. The court pointed out that a question in this form would capture two elements which may produce partiality: the colour of the accused and the interracial nature of the violence alleged. The court concluded that the interracial nature of the violence and the fact that the alleged crime occurred in the course of the black accused being involved in a criminal drug transaction combined to provide circumstances in which it was essential to the conduct of a fair trial that counsel be permitted to put the question in this form. [5] There is no reason to distinguish the violence alleged in Parks, murder, from that in this case, sexual assault. If anything, the potential for partiality in a case involving the alleged sexual assault of a 16 year-old white girl by a black man is greater than in the case of alleged violence by one man against another man. [6] The significance of the interracial nature of a crime as it relates to the potential of partiality was highlighted by McLachlin J. in R. v. Williams (1998), 124 C.C.C. (3d) 481 (S.C.C.). At p. 494 she said: Racial prejudice against the accused may be detrimental to an accused in a variety of ways. The link between prejudice and verdict is clearest where there is an “interracial element” to the crime or a perceived link between those of the accused’s race and the particular crime. [7] The respondent argues that the interracial nature of the crime was subsumed in the more general question permitted by the trial judge. We disagree. The interracial nature of the crime increases the possibility of partiality. There may be potential jurors who would consider that they would be able to reach an impartial verdict in the case of a black accused but not in the case where the victim of the alleged violence is white. At the time of the challenge for cause in this case, the potential jurors would not have known the colour of the complainant. The question permitted by the trial judge failed to inquire into the critical concern of partiality that may flow solely from the interracial nature of the offence. As this court held in R. v. Glasgow (1996), 110 C.C.C. (3d) 57, the defendant “was entitled to confront … potential bias head on in the challenge for cause process,” and this required that the full Parks question be put to potential jurors. [8] In the result, we conclude that the appellant was denied his statutory right to challenge for cause based on partiality. This improper denial of the right requires that the conviction be quashed and a new trial ordered. Refusal of Adjournment: [9] At the outset of trial, defence counsel, not Mr. Lockyer, made an application to have the trial adjourned to allow him further time to prepare. He had been retained four days earlier and told the court that he might be in a position to proceed the next day but that realistically he could not imagine being ready in less than a week. This was not a simple case. He pointed out there was a large amount of material, including reports of four experts to review, a number of pre-trial applications to prepare and several important tactical decisions to consider. The preliminary hearing had lasted six days and it would take some time to review the transcript. There was serious difficulty in reviewing the tape recordings of two statements made by the complainant which would be important in the preparation of his cross-examination of that witness. These difficulties were compounded by the late disclosure of two reports from the Centre of Forensic Sciences and the failure by the Crown to disclose the notes of two police officers until the day the trial was scheduled to begin. [10] The Crown did not suggest to the trial judge that there would be any problems with the availability of witnesses or the conduct of the prosecution if the case were adjourned as requested by the defence. [11] The trial judge refused the application. In doing so, he noted that the appellant had changed counsel on a number of occasions and that “there is nothing before me that indicates that his discharge of counsel is for good cause.” He described the appellant as the author of his own misfortune. The trial judge in effect rejected the submission of defence counsel that he required further time to prepare and concluded that there would be no prejudice to the accused if the trial were to proceed. [12] The court has a discretion whether or not to adjourn a trial. This discretion must be exercised judicially. In our view, the trial judge erred in refusing to adjourn the trial in the circumstances of this case. There was nothing to suggest that the appellant had discharged his lawyers for anything other than perfectly proper reasons. There was no suggestion that the appellant was attempting to delay the trial or manipulate the system. Indeed, his counsel was ready to proceed after a very short adjournment. The Crown did not indicate there would be any prejudice to its case if the adjournment were granted. [13] Moreover, the submission of defence counsel that he required more time to prepare was objectively reasonable. This was a complex case. There was much to be done to fully and adequately prepare. The trial judge ought to have attached more weight to the seemingly reasonable submissions of an experienced defence counsel and allowed the short adjournment requested. [14] That said, the appellant does not now contend that the defence at trial was incompetent. Indeed, in the circumstances, trial counsel appears to have done a commendable job. Rather, the appellant argues that once it is shown that the trial judge erred in exercising his discretion in refusing an adjournment, it automatically follows that there must be a new trial. In other words, the unfairness of the trial is presumed. We do not accept that argument. The test, in our view, is whether it can be shown that the refusal to grant the adjournment resulted in an unfairness to the appellant or created the appearance of unfairness. In view of the fact that we are directing a new trial, in any event, we do not find it necessary to determine if that test has been met in this case. Alleged Concocted Alibi: [15] The Crown, as part of its case, moved to lead evidence that the appellant had concocted an alibi that had been led at his show cause bail hearing. In support of its motion, the Crown referred to an outline of the evidence it intended to call. The defence objected to the Crown introducing the concocted alibi evidence. The trial judge found that there was an evidentiary basis from which the jury could infer that the alibi was deliberately fabricated and permitted the Crown to lead the evidence as part of its case. [16] It is not necessary to describe the evidence. What is important is that the Crown at trial, the trial judge and the respondent on this appeal have all accepted that the evidence actually led by the Crown fell short of establishing that the alibi put forward at the show cause hearing was concocted. It is also agreed that as the evidence failed to provide a basis for a finding that the alibi was concocted, it should not have been led as part of the Crown’s case: R. v. Witter (1996), 105 C.C.C. (3d) 44 (C.A.). [17] In our view, the failed attempt by the Crown to establish that the appellant had concocted an alibi could have caused serious prejudice to the appellant in a number of different ways. The most significant potential prejudice was that at the close of the Crown’s case counsel may have felt obliged to rely upon the defence of alibi. The jury had heard that the defence had asserted an alibi at the show cause hearing. It would have been difficult to abandon that defence at trial and maintain any credibility with the jury. The alibi evidence was not strong. It is not hard to imagine that counsel, absent the alibi evidence adduced by the Crown, might have chosen not to simply argue that the Crown had not proven its case beyond a reasonable doubt. [18] Had counsel not wanted to rely on the alibi, he could have moved for a mistrial at the conclusion of the Crown’s case. Counsel did not move for a mistrial, but instead called one witness to attempt to support the alibi. The evidence of this witness was very weak. [19] We must assume that the defence was aware of its options at the end of the Crown’s case and nonetheless chose to proceed with the alibi defence rather than bringing the mistrial motion. Consequently, we would not be prepared to hold that by leading the evidence of the alibi, the Crown forced a defence upon the accused or that there was actual prejudice to his defence. [20] The difficult situation created when the Crown’s case failed to live up to expectations demonstrates the caution which must be exercised when the Crown seeks to adduce evidence of a concocted alibi. While we do not suggest that the trial judge must hear the evidence by way of voir dire in every case, he or she should be satisfied that the evidence will in fact provide the basis for the inference of concoction. Fibre Expert Evidence: [21] The appellant argues that the trial judge erred in admitting the evidence of a fibre expert who testified that fibres found on the seat of the appellant’s truck, where the complainant testified she had sat, could have come from the same source as fibres found on the complainant’s clothing. The fibres were not originally from the truck or the clothing. They were black polyester fibres which were mass-produced and, therefore, could have come from a great number of different sources. [22] The probative value of this evidence was slight. However, it was within the trial judge’s discretion to weigh that probative value against its prejudicial effect in order to determine if the evidence was admissible. We are not prepared to interfere with the exercise of this discretion. The evidence was simple and straightforward. We are not persuaded that the jury would not have understood the evidence and have attached the appropriate weight to it. It must also be said that apart from the fibre evidence, there was a formidable body of circumstantial evidence placing the complainant in the appellant’s vehicle. Therefore, we do not give effect to this ground of appeal. The Medical Evidence: [23] The Crown called a doctor who had examined the complainant shortly after the alleged assault. The doctor testified that the complainant had two linear cuts on her right labium and three linear cuts on her left labium. The doctor testified that this was abnormal but was unable to describe the cuts in detail and significantly was unable to describe the age of the cuts. This, of course, greatly reduced the probative value of the evidence. In his charge the trial judge reviewed the evidence of the doctor, but failed to point out the difficulty with the evidence arising from her inability to indicate the age of the cuts. This was a serious omission in the review of this witness’s evidence. However, in view of the fact that we are ordering a new trial, in any event, we do not find it necessary to decide if this error, taken alone, would have justified ordering a new trial. Disposition: [24] Accordingly, the appeal is allowed, the conviction is quashed and a new trial is ordered. Released: September 27, 1999 _______________________________ 1 The non-publication order made by the trial judge is continued.