R. v. Robinson

R. v. Robinson Collection Decisions of the Court of Appeal Date 2001-03-28 Docket numbers C30519 Judges Rosenberg, Marc; Moldaver, Michael James; Goudge, Stephen Thomas Subject Criminal Decision Content DATE: 20010328 DOCKET: C30519 COURT OF APPEAL FOR ONTARIO ROSENBERG, MOLDAVER and GOUDGE JJ.A. BETWEEN: ) ) HER MAJESTY THE QUEEN ) Keith E. Wright, ) for the appellant Respondent ) ) - and - ) Beverly A. Brown, ) for the respondent JODY RORY ROBINSON ) ) Appellant ) ) ) Heard: January 31 and February 1, 2001 On appeal from his convictions by Justice E. R. Browne, sitting with a jury, on November 7, 1997 and from the sentences imposed on December 5, 1997 ROSENBERG J.A.: [1] In this appeal, as in several other appeals that have come to this court in the past few years, the principal complaint is the conduct of Crown counsel in his cross-examination of the accused and his jury address. This court is once again called upon to determine whether the conduct crossed the line from vigorous advocacy into impropriety. I am of the view that the conduct in this case was so improper that this court must intervene. The appellant raised many other grounds of appeal. In view of my conclusion on this principal ground, I need only address those grounds of appeal that may affect the conduct of the new trial. THE FACTS [2] The appellant was charged in an indictment containing eighteen counts spanning the time from March 1, 1996 to July 31, 1996. All eighteen counts set out this same time period and alleged that the offences occurred within the same geographic area, namely “the City of London in the [Southwest] Region or elsewhere in the Province of Ontario”. Notwithstanding this wording, it was apparent from the Crown’s opening and the testimony of the complainant that the charges related to three distinct incidents that occurred in different parts of the province. While the appellant was only convicted of offences in relation to the second incident, a brief review of the entire factual background, including the facts surrounding the first and third incidents, is necessary to appreciate certain of the grounds of appeal, especially those relating to the wording of the indictment. The Background [3] In 1995, the appellant lived in Mississauga and worked for a computer company as a warehouse manager. At the time of the trial, he was 34 years of age. He lived with his divorced mother and his two older sisters. In May 1995, a friend of the appellant’s invited him to London, Ontario where they visited a bar called Blondie’s. The friend introduced the appellant to the complainant, a dancer at the bar. The complainant was 28 years of age at the time of trial. She grew up in the United States but in the early 1990’s she left home and came to Canada. Thereafter, she lived and worked illegally in Canada, first at a bar in Niagara Falls and then at Blondie’s in London. [4] The appellant and complainant began an intimate relationship almost immediately. For several months, the appellant would travel frequently to London to be with the complainant. In August 1995, the appellant quit his job and moved to London where he moved in with his friend and the complainant (who was renting a room in the appellant’s friend’s apartment). Over the next few months, the appellant collected unemployment insurance and played golf. The complainant continued to work at the bar. In 1996, they moved into their own apartment. The appellant’s family provided most of the furnishings. The complainant paid most of the expenses. The appellant was still unemployed and using most of his unemployment benefits to pay off some debts. [5] Over the next couple of months, the relationship between the appellant and the complainant began to deteriorate. From the complainant’s point of view, the appellant was not pulling his weight and was becoming increasingly controlling. He accused her of drinking and began to resent her having to work as a dancer. On February 25, 1996, a friend of the appellant’s came to London to visit with him. The two of them went out for the day and when they came back the complainant had left and moved in with a friend. She left a note stating that she could not continue with the relationship as it presently existed. The appellant and the complainant talked by telephone over the next few days and they agreed that the appellant would return to his mother’s home and the complainant would return to the apartment. The incidents giving rise to the charges occurred over the next few months while the two were living apart. In short, the Crown alleged that the appellant was obsessed with the complainant and attempted to use various forms of intimidation and violence to persuade her to return to him. The appellant testified that he was very much in love with the complainant. He admitted to frequent telephone contact with the complainant and agreed that he had seen her on certain of the occasions giving rise to the charges. However, he denied assaulting the complainant and testified that all of the sexual conduct was consensual. The First Incident [6] The complainant was uncertain as to when the first incident occurred, but it seems that it occurred some time in April or May 1996. After many telephone calls from the appellant, the complainant agreed that he could come and see her. According to the complainant, the appellant arrived at the apartment in a drunken state. They argued about his drinking and the separation. The appellant then threw down a rope and said that he had nothing to live for and planned to hang himself. The appellant pushed the complainant down on her mattress, tied her hands behind her back, covered her mouth with a stocking and threatened to kill her. The appellant had forced anal intercourse with the complainant. The incident ended when the appellant untied the complainant, began to cry, and apologized. The appellant left but in doing so said that he was still contemplating killing himself. [7] While the appellant agreed that he occasionally came to London and stayed overnight with the complainant he denied that this incident occurred. In his opening address, Crown counsel tied four charges to this incident: assault, unlawful confinement, utter death threat, and sexual assault. The jury found the appellant not guilty on all four counts. The Second Incident [8] According to the complainant, about two weeks after the first incident, she again agreed to the appellant’s request to visit her. The appellant arrived in an intoxicated state and they began to argue. The appellant told her to change into one of her dancing costumes. He pushed her onto the bed and tied a gag around her mouth. He then tied her arms to the bed frame. The appellant performed oral sex on the complainant and had forced anal and vaginal intercourse. He then grabbed her arms and forced her into the bathtub where he urinated and defecated on her. The appellant then permitted her to have a shower. After she dressed, the appellant told her that she was going to accompany him back to Mississauga. When the appellant was in another room, the complainant ran out of the apartment and out of the building. The appellant ran after her and caught up to her in the parking lot. He grabbed her hair and clothing and walked her back into the apartment. This episode in the parking lot was witnessed by another tenant, Frank Ramdatt. [9] After the appellant retrieved his car keys from the apartment, they returned to the car. The appellant held the complainant by the neck and forced her into the car. According to the complainant, on the drive back to Mississauga the appellant ordered her to remove her clothes and have sexual intercourse with him while he continued to drive. [10] When they arrived at the appellant’s mother’s home, the house was empty (the appellant’s mother was on vacation). The appellant directed the complainant into the spare bedroom where he ordered her to remove her clothes. He tied her wrists to the bed and put a gag over her mouth. The appellant briefly left the room and returned with a cucumber, which he inserted into her vagina. He then slapped her in the face with sufficient force to cut her nose. He then tried to kiss her on the mouth and used such force that his goatee caused a circular abrasion that left the skin raw and oozing. The appellant then had forced anal intercourse with her. The complainant testified that it was so painful that she began to bang her head against the bedpost, in an attempt to knock herself out. The appellant pulled her head back by grabbing her hair, removed the gag, and asked her what she was doing. The complainant explained, and the appellant untied her. He then kneeled by the bed and began to cry and apologized. The complainant and the appellant then went to sleep. [11] When the appellant woke, he said he would drive the complainant back to London after he finished work. While the appellant was gone, the complainant called a friend, Wendy Douglas, to see if she could help her get a ride back to London. On the basis that defence counsel had made an allegation of recent fabrication in cross-examining the complainant, Crown counsel was permitted to adduce the contents of this telephone call from both the complainant and Ms. Douglas. According to Ms. Douglas, the complainant said that the appellant had brought a rope with him and threatened to hang himself, but instead he used the rope on her. The complainant had tried to run away but he caught her in the parking lot and then kidnapped her and took her to Toronto and raped her. After the call to Ms. Douglas, the complainant called her mother and her employer. The employer also testified at the trial but his evidence was inconsistent with that of the complainant. In particular, he placed the call the year before. [12] When the appellant returned from work, he drove the complainant back to London. There were no incidents during this time. The complainant testified that as a result of this incident she had bruising to her arm and the abrasion to her chin and that these injuries lasted about two weeks. Ms. Douglas saw the complainant the following day and saw these injuries. [13] The appellant gave a very different version of these events. He testified that he invited the complainant to come to his mother’s house while his mother was away on vacation. Mrs. Robinson was away on vacation from May 4th to May 18th. The appellant drove to London and stayed at the complainant’s apartment for several hours to watch a hockey game on television. The appellant denied that any of the events testified to by the complainant occurred and denied having chased the complainant outside her apartment as witnessed by Mr. Ramdatt. [14] The appellant testified that he and the complainant then drove to Mississauga. The appellant denied forcing the complainant to have intercourse with him while they were driving on the highway. At the apartment they “fooled around” and ended up having sex. They engaged in consensual bondage and consensual vaginal intercourse. The appellant then went to the kitchen and returned with a cucumber to use as a sex toy. The complainant objected because it was cold and so it was never used. The appellant agreed that he kissed the complainant passionately, which resulted in some redness to her chin from his goatee. In the morning, he went to work and after work drove the complainant back to London. [15] In his opening address, Crown counsel tied twelve counts in the indictment to these events: five counts of assault, three counts of unlawful confinement, two counts of sexual assault, one count of assault causing bodily harm and one count of sexual assault with a weapon. The jury convicted the appellant of two counts of assault, two counts of unlawful confinement, and of assault causing bodily harm and sexual assault with a weapon. The Third Incident [16] The appellant continued to telephone the complainant and in late July 1996 she agreed to see him so that the appellant could return certain photographs and other property that he had taken when they initially separated. The complainant did not want the appellant to come to the apartment and so she went with him to a restaurant for lunch. The complainant testified that following lunch they went for a drive in his car. The appellant drove very fast and refused to return the complainant to her apartment building until she agreed to perform a sexual act with him in the car. The complainant finally agreed to do so. After this act, the appellant drove the complainant home. [17] The appellant confirmed much of the complainant’s version of these events but denied driving fast or confining the complainant until she agreed to the sexual act. He testified that she agreed to perform oral sex on him voluntarily. In his opening address, Crown counsel tied one count of unlawful confinement and one count of sexual assault to these events. The jury acquitted on both counts. THE GROUNDS OF APPEAL [18] The appellant raises the following grounds of appeal from conviction: 1. The form of the indictment prejudiced the appellant in his defence. 2. The convictions must be quashed by application of principles of double jeopardy as set out in the Criminal Code, or as recognized at common law and under the Charter of Rights and Freedoms. 3. The trial judge misdirected the jury with respect to the evidence in support of each count in the indictment. 4. Crown counsel’s cross-examination of the appellant and jury address were improper. 5. The trial judge erred in permitting the Crown to adduce evidence of three-way sex between the complainant, the appellant and another man. 6. The trial judge erred in permitting the Crown to lead evidence that the appellant was under investigation by the Toronto police. 7. The trial judge erred in permitting the Crown to lead evidence of the complainant’s prior consistent statements about the second incident. 8. The trial judge erred in application of the rule in Browne v. Dunn. 9. The trial judge misdirected the jury concerning the use to be made of evidence of prior sexual conduct. 10. The trial judge misdirected the jury concerning the application of the defence of consent to assault causing bodily harm. 11. The trial judge erred in instructing the jury that a cucumber could be a weapon. 12. The convictions are unreasonable as being inconsistent with the acquittals. ANALYSIS The Indictment [19] It will be convenient to consider the first three grounds of appeal together as they all arise from the form of the indictment. The indictment in this case was in a very unusual form. All eighteen counts began the same way: Jody Rory Robinson stands charged that between the 1st day of March, 1996 and the 31st day of July, 1996 at the City of London in the said Region or elsewhere in the Province of Ontario did … [20] Each count then went on to identify the offence, for example, assault, name the complainant and specify the provision of the Criminal Code. As a result the multiple counts for the same offence were identical in all respects. For example the appellant was charged with assault in six identically worded counts as follows: Jody Rory Robinson stands charged that between the 1st day of March, 1996 and the 31st day of July, 1996 at the City of London in the said Region or elsewhere in the Province of Ontario did commit an assault on [the complainant], contrary to Section 266 of the Criminal Code. [21] The appellant was convicted of two counts of assault and acquitted of four counts. He was convicted of two counts of unlawful confinement and acquitted of three counts. The appellant complains that the form of the indictment makes it impossible for him to tell what he was convicted of and what he was acquitted of, at least in relation to unlawful confinement and assault. The appellant submits that as a result, principles of double jeopardy require that the convictions be quashed in light of the acquittals. [22] In my view, this indictment was improperly drafted and had objection been taken prior to plea, the trial judge would have been bound to order that the indictment be amended. Section 581 sets out the fundamental rules of pleading in criminal cases. Subsection (1) provides that each count shall “in general” apply to a single transaction and contain a statement that the accused committed an offence. This indictment complied with those two requirements. However, it ran afoul of the mandatory requirement in subsection (3): A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the count. [Emphasis added.] [23] Whether an indictment or a count in an indictment meets the sufficiency requirement in this subsection depends upon the facts and circumstances of each case. In determining whether the transaction has been sufficiently identified the court will look not just at the wording of the indictment but also at the other material in the possession of the accused such as Crown disclosure and the evidence called at the preliminary inquiry, if there was one: Re Regina and R.I.C. (1986), 32 C.C.C. (3d) 399 (Ont. C.A.); R. v. Ryan (1985), 23 C.C.C. (3d) 1 (Ont. C.A.). The problem in this case is that with all of the material in his possession, the appellant could not know which of the various alleged criminal acts related to which counts in the indictment. The complainant alleged many acts capable of constituting assault, sexual assault and unlawful confinement that occurred at different times and in different places. [24] However, no objection was taken to the form of the indictment at the opening of the trial as required by s. 601(1) of the Criminal Code: An objection to an indictment or to a count in an indictment for a defect apparent on the face thereof shall be taken by motion to quash the indictment or count before the accused has pleaded, and thereafter only by leave of the court before which the proceedings take place, and the court before which an objection is taken under this section may, if it considers it necessary, order the indictment or count to be amended to cure the defect. [25] In my view, the failure to comply with s. 581(3) was “a defect apparent on the face” of the indictment. Had objection been taken at that time the judge could have ordered that the indictment be amended in accordance with s. 601(3). See R. v. Moore, [1988] 1 S.C.R. 1097. Since no objection was taken prior to plea, objection to the indictment can only be taken in this court with leave. For the following reasons I would not grant leave. [26] In R. v. WIS Developments Corp. Ltd. et al. (1984), 12 C.C.C. (3d) 129 (S.C.C.) at 137, Lamer J. identified the purpose of the sufficiency rule as follows: When accused, the citizen shall then be treated fairly. This requires that he must be able clearly to identify what he is alleged to have done wrong so that he may prepare his case adequately, and that at the outset of his trial or thereafter once the trial is over and at some other court, he must be able to argue that he has already been acquitted or convicted of the offence or that he comes within the protective principles set out in Kienapple v. The Queen (1974), 15 C.C.C. (2d) 524, 44 D.L.R. (3d) 351, [1975] 1 S.C.R. 729. [Emphasis added.] [27] In his opening and closing addresses, Crown counsel linked each count in the indictment with a particular allegation by the complainant. For example, the Crown stated that the allegation of assault in count #1 related to the appellant pushing the complainant down onto her mattress during the first incident. Ordinarily, Crown counsel’s statement in the opening or closing address as to what he or she hopes to prove does not constitute particulars that the Crown is bound to prove in order to obtain a conviction: R. v. Bengert et al. (No. 5) (1980), 53 C.C.C. (2d) 481 (B.C.C.A) at 542, leave to appeal to S.C.C. dismissed October 28, 1980, 53 C.C.C. (2d) 481n; R. v. Govedarov, Popovic and Askov (1974), 16 C.C.C. (2d) 238 (Ont. C.A.) at 270, aff’d, 25 C.C.C. (2d) 161 (S.C.C.). Where, however, it is clear that the address is intended to provide particulars and that the Crown has bound itself to prove the charges as so particularized, the accused is entitled to rely upon those particulars: Cox and Paton v. The Queen, [1963] 2 C.C.C. 148 (S.C.C.) at 160. In my view, that is what occurred in this case. In his opening and again in his closing, Crown counsel committed himself to proving that a particular allegation related to a particular count. If the jury was unable to find that the particular allegation was made out, it was bound to acquit the appellant on that count. It seems to me that the defence understood that this was the purpose of the Crown’s opening and closing and Ms. Brown (who was not counsel for the Crown at trial) also took this position before us. I am also of the view that subject to a problem with count #10, which I will discuss below, the trial judge made this clear to the jury. [28] As a result of the pre-trial disclosure and the preliminary inquiry, the appellant was able to prepare his defence. As a result of the particulars furnished by the Crown in the opening address, the appellant knew the case he had to meet. Finally, because of Crown counsel’s closing address and the charge to the jury the appellant would be able to “argue that he has already been acquitted or convicted of the offence or that he comes within the protective principles set out in Kienapple v. The Queen” (R. v. WIS Developments Corp. Ltd. et al. supra at 137). With respect to this latter point, I do not accept the appellant’s submission that he was prejudiced because he was convicted and acquitted on identically-worded counts of assault and unlawful confinement and would not be able to plead autrefois acquit or convict in subsequent proceedings. It is well established that in considering whether these special pleas have been made out, the court does not simply look at the indictment but must consider the entire record, including the transcript of evidence and charge to the jury: see Criminal Code s. 608 and R. v. Gee (1973), 14 C.C.C. (2d) 538 (Ont. C.A.). Further, as Ms. Brown conceded, it would be an abuse of process for the Crown to attempt to reindict the appellant for any of the conduct particularized in the Crown’s jury address, except through a new trial ordered by this court. [29] Counsel for the appellant makes two further submissions related to the indictment. He submits that even if Crown counsel bound himself to prove the counts as particularized in the indictment, the trial judge did not make this clear in the charge to the jury and in any event the trial judge misdirected the jury with respect to the particulars of count #10. [30] Certain passages in the charge to the jury, when viewed in isolation, are capable of supporting the view that the trial judge allowed the jury to roam freely through the evidence and decide for themselves the allegations that related to each count. The most troubling passage in this respect is the following: In the opening address, the Crown took us through the outline of the evidence as he saw it, and how the evidence would apply to particular counts. And you will recall he said, this applies to count so and so. He did something similar to that in his address to you the other day. Defence counsel did not do that understandably so, because defence counsel takes a more global position referable to the three episodes as apart from the various counts that may be within those three episodes. But under each of the counts as I deal with them, I am going to make reference to some evidence, which I have selected. It is not necessarily the same evidence that [Crown counsel] used, and I point that out to you at this time. I will not do so when I get to the individual pieces of evidence. But I want to say this, whatever counsel said about the evidence applicable to a count, whatever I say about evidence applicable to a specific count is merely to suggest to you and/or to be of assistance to you. It is for you to decide what, if any, evidence applies to a particular count. My purpose is not identifying evidence for persuasion purposes. My purpose in selecting evidence is to illustrate my approach to the evidence vis-à-vis the law. You may find there to be different evidence, more or less, or not at all applicable to a specific count. So because I run through specific evidence applicable, in my suggestion, to a count, it remains for you to make that determination and I am not trying to usurp your function as triers of fact. So I guess my comments amount to alerting you to what I am doing and in a sense, alerting you to the fact that I am not taking over your fact finding function. [Emphasis added.] [31] It seems to me that the trial judge was attempting in this and other similar passages to distinguish counsel’s function and the function of the trial judge from jury’s responsibility to find the facts. He wanted the jury to understand that just because the Crown alleged that a certain event happened, or that evidence had been adduced about that event and it related to a particular count, it was still for the jury to find as a fact that the event occurred. While the trial judge could have been somewhat clearer in this and other similar passages, when the charge is read as a whole, I am satisfied that the jury would understand their responsibility. The trial judge reviewed each count in turn and related the particular allegation to that count. He also put the defence position in respect to each count. For example, the trial judge directed the jury as follows in relation to count #6, a charge of unlawful confinement: Count number six is that part of the second episode at London where there was a tying, a tying by nylons. This time there was a tube sock in the mouth and nylons tied around the tube sock and the tying to the bed frame. This is alleged to have happened at night. Robinson’s evidence is that he was there in the afternoon. They left after watching the television, the sporting event, and that later at night they were at Streetsville, and that there may have been some, I think he said, fooling around at the London apartment, but that that did not involve sexual activity of the type alleged. [32] In my view, the jurors would have understood that they could only convict if they found that the allegation as particularized in the jury address was made out. The one count, however, where this was not made clear was count #10. This was a charge of unlawful confinement related to the second incident. Both in his opening and closing address, Crown counsel stated that this count related to that part of the incident where, after retrieving his car keys, the appellant held the complainant by the neck and forced her into the car. They then drove to Mississauga. The trial judge, however, related count #10 to the slightly earlier event where the appellant chased after the complainant, caught up with her, grabbed her by the hair and forced her back to the apartment. This was the event that was witnessed by Mr. Ramdatt. [33] If count #10 were the only count of unlawful confinement in the indictment, the distinction between the two versions would have been of no consequence. The jury would have been entitled to convict of unlawful confinement on either episode. In fact, I tend to the view that both episodes were part of the same transaction. However, count #10 was but one of four identically worded counts of unlawful confinement and as a matter of fairness the Crown could only obtain a conviction by proving the count as particularized in the opening and closing address. Of course, in considering whether that allegation had been made out, the jury could take into account Mr. Ramdatt’s evidence of the earlier episode. That evidence provided independent support for the complainant’s testimony that she was under the appellant’s control during this time. [34] In view of this misdirection, I would allow the appeal in relation to count #10 and order a new trial on that count. I will deal with the form of that count on the new trial at the end of these reasons. I would not otherwise give effect to the grounds of appeal relating to the wording of the indictment. Crown Counsel’s Cross-examination of the Appellant and Jury Address [35] In my view, Crown counsel’s cross-examination of the appellant was highly improper. From start to finish, it was designed to demean and denigrate the appellant and portray him as a fraudsman, a freeloader and a demented sexual pervert. Many of the questions posed were laced with sarcasm and framed in a manner that made it apparent that Crown counsel personally held the appellant in utter contempt. In many respects, this was not a cross-examination but an attempt at character assassination. [36] It is simply not possible to refer to all of the many transgressions by Crown counsel and in any event, as both counsel said in their submissions, the full flavour of the cross-examination can only be gleaned by reviewing the entire cross-examination. Accordingly, I intend to highlight only some of the problem areas. [37] Two areas are of particular concern. First, it had come out in examination-in-chief that when the appellant quit his job, he persuaded his employer to say that he had been laid off so that he could immediately begin to collect unemployment benefits. This part of the narrative was peripheral to any of the real issues in the case. Nevertheless, it became a dominant theme of the cross-examination as Crown counsel attempted to portray the appellant as dishonest and a freeloader. [38] Second, because of the nature of the allegations, and because the trial judge granted an application by the defence to lead evidence of prior sexual conduct between the complainant and the appellant, there was substantial evidence about the relationship between the appellant and the complainant, including their sexual relationship. Some of this evidence portrayed sexual activity that, although consensual, was out of the ordinary. It included bondage, three-way sex, anal sex, mutual urination, and use of various sexual aids. Crown counsel repeatedly made use of this evidence in an attempt to portray the appellant as perverted and a sexual deviant. He used terms such as “bizarre” and “demented”. He suggested that the appellant’s evidence had all of the elements of a “demented version of a cheap crime novel”. He made clear his own personal distaste and disgust for the appellant’s sexual preferences and lifestyle. [39] Crown counsel carried this theme on in his jury address, suggesting to the jury that the unemployment insurance misconduct and the sexual activities were “so insightful of the character of the accused”. At the conclusion of the address, Crown counsel summed up the case as having all the features of a “bizarre, sadistic, albeit unsophisticated crime novel”. The appellant had not put his character in issue. Crown counsel’s jury address was an explicit invitation to the jury to use the evidence of other misconduct for the prohibited purpose of showing that the appellant was the type of person likely to commit these offences. [40] As I have indicated, the cross-examination was also laced with sarcasm and was intended to demean the appellant. Crown counsel made clear his personal opinion of the appellant and his distaste for him and his lifestyle. He also on several occasions made suggestions to the appellant about various sexual acts that had no evidentiary foundation and had never been disclosed in the Crown’s case in chief. [41] Defence counsel made several objections to the cross-examination and the trial judge also intervened on some occasions. Crown counsel was, however, largely undeterred and persisted in the improper examination. [42] I see no need to review the law in this area at any length. The applicable principles have been referred to repeatedly in the last few years in decisions of this court such as R. v. Henderson (1999), 134 C.C.C. (3d) 131; R. v. S. (F.) (2000), 144 C.C.C. (3d) 466 and R. v. R. (A.J.) (1994), 94 C.C.C. (3d) 168. [43] In many ways, the conduct of Crown counsel in this case was similar to the improper conduct of Crown counsel in R. v. R. (A.J.). In that case, Doherty J.A. noted: Crown counsel adopted a sarcastic tone with the accused and repeatedly inserted editorial commentary into her questions … (p. 177) [A] great many instances where Crown counsel used the pretence of questioning the appellant to demonstrate her contempt for him and the evidence he was giving before the jury. (p. 177) and [N]umerous instances in the cross-examination when the questions went beyond the bounds of relevancy and legitimate credibility impeachment and became an attempt to highlight the appellant's bad character and deviant lifestyle. (p. 179) [44] Doherty J.A. concluded at p. 181 that, “The cross-examination, considered in its totality and in the context of the entire trial, prejudiced the appellant in his defence and significantly undermined the appearance of the fairness of the trial.” I have reached the same conclusion in this case. The cross-examination exceeded well-established limits, was marked by repeated improprieties and crossed “over the line from the aggressive to the abusive” (R. v. R. (A.J.) at 176). When coupled with the improper jury address I can only conclude that there was a very real danger of a miscarriage of justice and that the cross-examination was so improper as to bring the administration of justice into disrepute and thus require the intervention of this court (R. v. R. (A.J.) at 176). [45] In this court, Ms. Brown, while conceding that some of the cross-examination may have exceeded the limits of proper cross-examination, argued that it did not result in any miscarriage of justice. She pointed out that the appellant was actually acquitted of more counts than he was convicted. She submitted that the cross-examination was ineffective and irrelevant and did not prevent the appellant from giving his version of the events. However, I cannot be satisfied that the appellant had a fair trial. Credibility was critical in this case. The many acquittals show only that the case was finely balanced. The unfair attack on the appellant’s character by the Crown and the improper attempt by Crown counsel to throw the weight of his office and his personal opinion into the balance may have tipped the case against the appellant. [46] Accordingly, I would allow the appeal from conviction and order a new trial. I will return to the form of the new trial after dealing with some of the other grounds of appeal. Evidence of Three-way Sex [47] At the opening of the trial, defence counsel applied pursuant to s. 276 of the Criminal Code for leave to cross-examine the complainant and adduce evidence of consensual sexual activity between the appellant and the complainant. The trial judge granted the application. Perhaps in anticipation of the cross-examination, Crown counsel led from the complainant evidence that on two occasions she and the appellant had engaged in three-way sex with someone referred to at trial as “Brian”. While the tenor of the complainant’s evidence was that she was not particularly happy about participating in this activity, there was no suggestion that it was not consensual. Defence counsel raised no objection to the evidence and briefly cross-examined the complainant on the incidents. [48] It is now argued on appeal that the trial judge should not have admitted the evidence. On this record, I can only conclude that defence counsel was not concerned about the prejudicial effect of the evidence and for tactical purposes did not oppose its admission. It will be for the judge on the new trial to rule on the admission of the evidence. I should not, however, be taken as holding that the evidence was admissible at the instance of the Crown or that such evidence would have been admissible at the instance of the defence under s. 276 of the Criminal Code. On this record, its probative value to any of the issues either for the Crown or the defence was very limited and the evidence could have had a significant prejudicial effect both on the prosecution and on the appellant. The Toronto Investigation [49] Prior to the complainant testifying, Crown counsel sought a ruling concerning information provided to the complainant by the Toronto police. In July 1996, after the last incident, police officers called the complainant and told her that they were conducting an investigation of the appellant and that they had concerns for her safety. Crown counsel argued that this evidence was admissible as part of the narrative. It appears that following this telephone call, a Toronto police officer came to London and spoke to the complainant and, it would seem, this was the first occasion that the complainant complained to the authorities about the appellant. It appears that several months later the complainant made a more complete statement to London police. At the same time, she raised her concern that she was living and working illegally in Canada. [50] The trial judge ruled that the evidence of the Toronto investigation was admissible. In his examination-in-chief of the complainant, Crown counsel asked a series of leading questions to put before the jury that the Toronto police told the complainant that the appellant was under some criminal investigation and that they were concerned for her safety. The complainant testified that as a result she moved out of her apartment for several days. Crown counsel also read in an agreed statement of facts as to the contact by the Toronto police officer with the complainant, which confirmed the complainant’s evidence. [51] On appeal, the appellant submits that this evidence was inadmissible since its prejudicial effect outweighed its probative value. I agree with the appellant. The probative value of this evidence as narrative lay solely in the fact that it explained how the complainant came to the attention of the police. Since the theory of the defence seemed to be, in part, that the complainant fabricated her complaints about the appellant to assist with her immigration problem, it was open to the Crown to lead some evidence to show that they approached the complainant rather than the other way around. It was not, however, necessary to lead evidence that the appellant was under investigation or that the police had concerns about the complainant’s safety. That evidence was highly prejudicial and should not have been admitted as part of the Crown’s examination-in-chief of the complainant. [52] Since I would order a new trial on other grounds, it is not necessary to reach a settled conclusion on whether this error would also require a new trial. I should point out that at the time the evidence was admitted, the trial judge gave a clear and emphatic instruction as to the limited use of this evidence and a similar instruction was repeated in the charge to the jury. Finally, I should state that at the new trial some of the evidence that, in my view, was inadmissible could become admissible depending on the defence tactics. Evidence of Prior Complaints [53] The appellant submits that the trial judge erred in permitting the Crown to lead evidence of prior consistent statements the complainant made during the course of the second episode. These statements were made in telephone calls by the complainant to her friend Wendy Douglas and to her employer. The trial judge ruled that the evidence was admissible to rebut an allegation of recent fabrication. Since there must be a new trial, and since there may or may not be an allegation of recent fabrication at that trial, there is no need for me to address this issue. The Rule in Browne v. Dunn [54] On several occasions, Crown counsel interrupted the examination-in-chief of the appellant to complain that the appellant was giving evidence in violation of the so-called rule in Browne v. Dunn (1893), 6 R. 67 (H.L.). Crown counsel argued that defence counsel had failed to cross-examine the complainant upon points that the appellant intended to contradict her. The trial judge originally ruled that counsel could not elicit the evidence. He then, properly, resiled from that holding and in the end merely gave the jury an instruction about the effect of failure to cross-examine. [55] On appeal, the appellant submits that there was no violation of the rule in Browne v. Dunn, that Crown counsel’s frequent objections were improper, and that the trial judge erred in his charge to the jury. I have examined the various objections by Crown counsel. While some of them were relatively trivial, it is also apparent that certain of the objections were well founded in the sense that the appellant was providing additional material information that had not been put to the complainant. While I think Crown counsel might have been well advised to exercise greater restraint, I cannot say that his interventions prevented the appellant from making full answer and defence. The charge to the jury on this issue was relatively restrained. Should a similar issue arise on the new trial, the judge and the parties will have the benefit of this court’s decision in R. v. McNeill (2000), 144 C.C.C. (3d) 551. Misdirection on the Use of Prior Sexual Conduct [56] The trial judge ruled that the defence could lead evidence of prior consensual conduct between the appellant and the complainant. It appears that the trial judge was satisfied that the requirements of s. 276 of the Criminal Code had been met and that the evidence was necessary so that the jury could properly understand the relationship between the appellant and the complainant. In particular, the trial judge was concerned that the jury could not properly understand the defence of consent to some of the unusual acts without knowing that the complainant had previously consented to such conduct in the context of the on-going relationship. In accordance with s. 276.4 of the Criminal Code the trial judge instructed the jury “as to the uses that the jury may and may not make of that evidence”. [57] On appeal, the appellant submits that the instructions were confusing and contradictory. The trial judge first instructed the jury as to the prohibited use of the evidence and in particular that the evidence “may not be used to support an inference that by reason of the sexual nature of that activity, [the complainant] was one, more likely to have consented to the sexual activity that forms the subject matter of the applicable charges or counts; two, is less worthy of belief”. The trial judge then directed the jury that the evidence could be used on the issue of consent “in the context of the total narrative or story” between the appellant and the complainant. He also told the jury that the previous sexual activity “gives an insight into what you may regard as unusual activity, but what you may regard as unusual may be common activity between others”. [58] On the appeal, we did not call upon Crown counsel to respond to this ground of appeal. We were satisfied that the instructions taken as a whole conveyed to the jury the proper use of the evidence. On the new trial, it will be for the trial judge to determine both the admissibility of the evidence of prior sexual conduct and the proper jury instructions. Consent to Bodily Harm [59] The charge of assault causing bodily harm (count #14) was based on the complainant’s evidence that the appellant, in the course of a much graver conduct, vigorously rubbed his goatee against her chin so that the skin was rubbed off leaving an oozing sore. The appellant testified that he was simply kissing the complainant and, as in the past, his goatee left some redness. He denied causing her any bodily harm. [60] The trial judge directed the jury that if they found that the appellant had caused bodily harm, which he defined as “any hurt or injury to the complainant that interferes with the health or comfort of the complainant and is more than merely transient or trifling in nature”, then consent was no defence. It would seem that the trial judge was attempting to comply with the holding of the Supreme Court of Canada in R. v. Jobidon (1991), 66 C.C.C. (3d) 454 where the Court placed limits on consent in the context of a fist fight or brawl. Gonthier J. held for the majority at p. 494 that, in that context, combatants could not consent to the use of force causing “serious hurt or non-trivial bodily harm to each other”. However, Gonthier J. went on to point out that the limits placed on consent for policy grounds are context specific. For example, in the context of sporting activities he held at p. 495 that: [T]he policy of the common law will not affect the validity or effectiveness of freely given consent to participate in rough sporting activities, so long as the intentional applications of force to which one consents are within the customary norms and rules of the game. Unlike fist fights, sporting activities and games usually have a significant social value; they are worthwhile. [61] In R. v. Welch (1993), 101 C.C.C. (3d) 216 at 239, this court held that Jobidon can apply in the context of consensual sexual relations. This court held that consent was no defence to “sadistic sexual activity [that] involved bondage (the tying of the victim’s hands and feet) and the intentional infliction of injury to the body and rectum of the complainant”. Griffiths J.A. went on to hold at p. 239 that: Although the law must recognize individual freedom and autonomy, when the activity in question involves pursuing sexual gratification by deliberately inflicting pain upon another that gives rise to bodily harm, then the personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour. [62] In view of the decision in Welch, I am of the view that the trial judge was right to instruct the jury that consent could not be a defence to certain forms of bodily harm. However, it would have been preferable had the trial judge made it clear that consent was no defence only if the appellant deliberately inflicted pain upon the complainant causing bodily harm as he had defined it. Cucumber as a Weapon [63] Count #15 charged the appellant with sexual assault with a weapon “namely a cucumber”. The appellant submits that on the complainant’s own evidence this charge was not made out and that the insertion of the cucumber into her vagina did not fall within the definition of “weapon” in s. 2 of the Criminal Code. On the hearing of the appeal, we did not call upon counsel for the respondent to respond to this ground of appeal. We were all of the view that there was evidence from which the jury could properly find that the use of the cucumber in the circumstances fell within the definition of weapon. [64] The Criminal Code defines “weapon” as any thing used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm. [65] According to the complainant, at the time the appellant used the cucumber, her hands were bound and her mouth was gagged. In my view, it would be open to the jury to find in the circumstances that the cucumber was used or intended for use in causing injury to the complainant or for the purpose of intimidating her. (However, compare R. v. Lamy, [2000] J.Q. No. 2267 (C.A.) leave to appeal to S.C.C. granted February 15, 2001). Inconsistent Verdicts [66] This ground of appeal can be summarily dealt with. The appellant submits that both Crown and defence went to the jury on the basis that this was an all or nothing case. Either the jury accepted that the complainant was telling the truth with respect to all the allegations or they did not. He suggests that the mixture of acquittals and convictions indicates an unjustifiable compromise by the jury and that the convictions are unreasonable. I do not agree. The test for inconsistent verdicts is a strict one. Evans J.A. put the test this way in R. v. McLaughlin (1974), 15 C.C.C. (2d) 562 (Ont. C.A.) at 567: If the verdicts are violently at odds and the same basic ingredients are common to both charges then the conviction will be quashed but the onus is on the appellant to show that no reasonable jury who had applied their minds to the evidence could have arrived at that conclusion. [67] The appellant has not met this test. It is trite law that it is open to a jury to accept all, some, or none of a witness’s evidence. It is obvious that the jury had concerns about the testimony of the complainant. Generally speaking, the convictions can be explained by the presence of some, perhaps slight, confirmatory evidence or because the conduct as described by the complainant went far beyond the kind of consensual conduct in which she and the appellant had previously engaged. The convictions are not unreasonable. DISPOSITION [68] Accordingly, I would allow the appeal, quash the convictions on counts 9, 10, 12, 13, 14 and 15 and order a new trial on those counts. In my view, this is a proper case for the court to exercise its power under ss. 683(1)(g) and 686(8) of the Criminal Code and order that the new trial be on an amended indictment to accord with the particulars set out in Crown counsel’s opening address to the jury at the first trial, to avoid any possible double jeopardy concerns. I would leave the actual drafting of the new indictment to Crown counsel. However, for the sake of clarity, with respect to count #10 the new count should accord with the particulars given by Crown counsel and not those referred to by the trial judge in his charge to the jury. (signed) “M. Rosenberg J.A.” (signed) “I agree M. J. Moldaver J.A.” (signed) “I agree S. T. Goudge J.A.” RELEASED: March 28, 2001 “MR”