R. v. Vella, 2012 ONCJ 617

COURT FILE No.: 10 / 17029 Citation: R. v. Vella , 2012 ONCJ 617 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — FRANCESCO VELLA Before Justice Gregory A.

Campbell RULING October 2, 2012 Scott Kerwin ......................................................................................................... for the Crown Laura Joy............................................................................................................ for the Accused CAMPBELL GREGORY J.: [ 1 ] It has been nearly a year since this case was first called to trial on October 19, 2011 and the complainant was called to testify.

There have been several days of testimony and several applications that have required rulings including; the admissibility of expert evidence, recalling the complainant to testify (twice) and the admissibility and scope of cross-examination on third party records obtained during the trial.

The accused is charged with having committed a sexual assault upon a twenty two year old college student intern who was working for a brief while at his pharmacy. [ 2 ] Following the conclusion of testimony on July 13, 2012 and before the return date set to hear submissions on the merits, counsel for the accused received anonymous information about an incident alleged to have occurred three months prior to the matter at issue before this Court involving the complainant and her former teacher at the college.

After speaking with the former teacher, counsel for the accused moved to reopen the trial for the purpose of introducing fresh evidence. In support of the application was filed the affidavit of Elizabeth Walker, a Pharmacy Assistant Instructor at Trios College. It is anticipated that Ms. Walker would testify about an incident that occurred after she was called upon by the Campus Director of the College to assist the complainant who had failed a pharmacology exam. In particular, Ms.

Walker would presumably testify about how, after informing the complainant that she had failed her exam for a third time, and after discussing the reasons why she failed including the complainant’s failure to abide by the school’s code of conduct for classroom attendance and participation, she was investigated by the police in regard to an allegation of assault against the complainant that was apparently not pursued. Ms. Walker, in her affidavit, stated the following: “13. Upon entering the classroom, I asked Ms. C. to return the examination.

I informed her that the examination was school property and that the returning of all examinations is standard practice. 14. Ms. C. refused and instructed me to not speak about her in the presence of others in the classroom. 15. Ms. C. and myself then exited the classroom and returned to the hallway. I again asked Ms. C. several times to return the examination. 16. Ms. C. continued to refuse, holding the examination papers out saying, “make me.” 17. At this point, I took the examination papers out of Ms. C.’s hands. At no time did I make contact with her body. 18.

After taking the examination papers, I returned to instruct my class. 19. Later in the afternoon on October 29, 2009, a police officer arrived at Trios College and asked me to attend the office of Ms. Bonelho. 20. Upon attending Ms. Bonelho’s office, the police officer informed me that I was under investigation for assault. 21. At this time, I explained to the police officer that I never made contact with Ms. C. and that the allegations against me were false. The police officer left without charging me. 22. After the police officer left Trios College, I was informed by Ms. Bonelho that Ms.

C. had attended her office, alleged that I had touched her thereby assaulting her, and demanded that the police be called.

23. Ms. Bonelho informed me that she did not call the police. 24. I was never charged with assault arising out of the alleged incident.” [ 3 ] The applicant contends that the proposed evidence would be relevant to the issue of motive and credibility. [ 4 ] The Crown does not dispute that the proposed evidence is fresh and could not have been obtained through any due diligence.

However, the Crown asserts that the introduction of such evidence is not only irrelevant but would interfere with the orderly conduct of the trial. [ 5 ] The issue concerning motive is essentially tied to the issue of credibility and succinctly stated at Paragraph 7 in the movant’s factum as follows: “ The proposed evidence of Ms.

Walker demonstrates the complainant’s ability to fabricate allegations against the applicant to cover up her erratic behaviour in order to get out of her placement without losing any school credits”. [ 6 ] The issue concerning the complainant’s “erratic behaviour” arose during the course of trial and was addressed in my Ruling concerning the applicant’s request to have the complainant recalled and the Crown’s request to cross-examine the accused based on information gleaned from Trios College records obtained during the course of trial. [ 7 ] It is proposed that the evidence of Elizabeth Walker will assist me as the trier of fact in resolving the issue of the complainant’s credibility and her alleged erratic behaviour which was ongoing, not only in her capacity as a pharmacy technician intern at the accused’s pharmacy, but also as a student in the pharmacy technician programme while she attended Trios College. [ 8 ] To this end, the defence intends to argue at the end of the day that the complainant fabricated an allegation of assault against Ms.

Walker at Trios College in an effort to improve her academic standing only three months before the alleged assault against Mr. Vella, I should have good reason to believe that the complainant fabricated the allegations against the accused as well in an effort to cover up her erratic behaviour in order to get out of her placement without losing any school credits. [ 9 ] In order for evidence of this kind to be of any use to me, the conclusion I am being invited to make in regard to Ms. Walker’s story would have to be readily available based on clear, conclusive, reliable and admissible evidence.

The applicant proposes to simply call Ms. Walker, have her testify, be available for cross-examination and close its case. The Crown argued that the calling of evidence would not be that simple. [ 10 ] In addition to hearing from Ms. Walker, I can anticipate that I would likely have to hear from the complainant and quite possibly the campus director, Ms. Bonelho, and the investigating police officer.

In addition to hearing from the witnesses, there would likely have to be an order for the production of further school records. [ 11 ] It is clear that the proposed evidence is intended to impugn the complainant’s general character on the basis that she is one who is prepared to fabricate allegations to serve her own self interest. [ 12 ] It is trite that counsel is obliged to confront a witness with facts relied upon that are intended to discredit the witness in order to afford the witness an opportunity to respond.

In this instance, because we are dealing with fresh evidence, that opportunity to confront the complainant with these facts while she was in the witness stand was not available to the defence. Nevertheless, the principle remains the same. It would be improper to allow the defence to simply call Ms. Walker as part of its case for the sole purpose of discrediting the complainant and then close its case. In the circumstances, the proper step should have been to seek leave to recall the complainant to the witness stand so that the facts concerning the allegation of assault apparently made by her against Ms.

Walker could be put to her. I believe the relief being sought to call evidence as part of the defence’s case for the purpose of attacking the complainant’s credibility is improper. [ 13 ] Nevertheless, whether moving to recall the complainant or seeking leave to introduce the evidence, the issue that arises from either request remains the same. The applicant seeks to adduce evidence on a collateral issue as to credibility.

A determination as to whether the complainant made the allegation of an assault and whether such allegation was fabricated by the complainant would invite the court to embark upon a hearing that would require me to weigh and consider the evidence in the same manner that I am required to in the trial. [ 14 ] Moreover, even if I were to embark upon such an inquiry and heard not only form Ms. Walker but from all of the potential witnesses and if I were then able to satisfy myself that the complainant did make the allegation of assault to the police against Ms.

Walker, I would not be in a position to conclude that such an allegation was fabricated. The best that I would be able to determine was that an allegation of assault was made. There is not one shred of evidence before this Court to indicate or suggest to me that I would at any point be able to conclude that the allegation was false. The matter of an alleged assault involving the complainant and Ms. Walker is clearly collateral and not relevant to the issue of credibility before this court. [ 15 ] In R. v. Riley

(1992) O.R. (3d) 151 (C.A.), counsel for the accused, charged with sexual assault, attempted to cross- examine the complainant about a separate allegation she made of sexual assault against a third party.

Following an objection to the line of questioning by the prosecution, the trial judge ruled that the line of questioning was irrelevant notwithstanding a stipulation by the Crown that the third party had been acquitted of charges brought against him by the complainant. [ 16 ] In that case, the defence proposed to call the third party to testify that similar allegations of sexual assault were made against him by the complainant and that same were false.

As a result, the third party would testify that the complainant had charged him with sexual assault, that he denied the allegation and that he was acquitted at trial.

[ 17 ] In upholding the decision of the trial judge to refuse the cross-examination along this line, the Court of Appeal stated the following: The problem of proving falsity in these circumstances is considerable. To have Roswell testify that her complaint to the authorities about him was false, would only introduce a collateral issue of credibility which would be as difficult to resolve as those contained in the complaints of which the trial judge was seized.

Even if we had a proper record of Roswell’s trial, a not guilty verdict, standing by itself, could not establish that the prosecution was based on fabricated testimony by the complainant. We agree with Counsel for the Crown that this cross-examination was on a collateral matter in that it was essentially an attack on the general character of the complainant. The trial judge, on the record before him, properly exercised his discretion in curtailing the cross- examination.

Accordingly, it was not proper to confront her on her denial of fabrication. [ 18 ] In its reasoning, the Court of Appeal stated further that the only legal basis to justify cross-examination of the complainant as suggested would have been to lay the foundation for “… a pattern of fabrication by the complainant of similar allegations of sexual assault against other men”. The Court went on to indicate that in such circumstances the defence would have to be in a position to establish that the complainant had either recanted earlier accusations or that they were demonstrably false.

The proposed application and testimony of Ms. Walker doesn’t even go as far as demonstrating that the complainant made the allegation of assault against her to the police. Moreover, having regard to the dicta in Riley , even if the testimony of Ms. Walker and others established that the complainant made an allegation of assault against her to the police, I have no reason to believe the defence could demonstrate that the complainant either recanted the accusation or could prove that it was false. [ 19 ] For the foregoing reasons, it is clear that the proposed evidence is irrelevant and is not admissible.

Moreover, it is equally clear to me that to embark upon such an inquiry for this purpose would have an adverse effect on the orderly conduct of the trial. [ 20 ] Accordingly, the application is hereby dismissed. RELEASED: October 2, 2012 “released orally” Gregory A. Campbell Justice