R v. J. M. B. Date:, 2015 BCPC 133

Citation: R v. J. M. B. Date: 20150210 2015 BCPC 0133 File No: 1074 Registry: Fort Nelson IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J. M. B. RULING ON APPLICATION TO CALL REPLY EVIDENCE OF THE HONOURABLE JUDGE E. L. Bayliff Counsel for the Crown: P. Konge Counsel for the Defendant: N. Bauder Place of Hearing: Fort Nelson , B.C. Dates of Hearing: January 28, 29 & 30, 2015 Date of Judgment: February 10, 2015 [ 1 ] This is my Ruling on the Crown’s application to call reply or rebuttal evidence in the trial of J.M.B. on a charge of Sexual

Assault of S.M. contrary to s. 271. [ 2 ] I have decided that the Crown may call reply evidence. I will explain why. Factual Context [ 3 ] It is clear that an incident of fellatio or oral sex took place between the accused and S.M. at a graduation party on June 30 th , 2013 at Fort Nelson. The only issue is whether this sexual activity was, or was not, consensual. S.M. testified that it was forced upon her and she did not consent.

The accused testified that S.M. was a willing, even eager, participant. [ 4 ] In support of his position the accused called his sister, D.B., who testified as follows about things she heard S.M. say shortly after the event: “Q: Did you see S. M.? A: I did.” “I had seen her around the fire and that and then I did not see her and later on I had gone to the bathroom with her and her friend K. [W.] and I had asked them if they knew where my brother J. [M.B.] was as we were supposed to be leaving for Alberta.

And S. [M.] said she had seen him and then her words were “oh my God, I can’t believe how drunk I am, I just sucked your brother’s dick!” “I had known K. [W.] since probably grade 3 or 4 through dance.” “Q: What were your observations of SM when she made these comments? She did not seem too upset about it. If anything she was kind of giggling.” [ 5 ] On cross examination D.B. said as follows: “Q: Is the only part of the conversation that you remember the part you have relayed and nothing else?

A: Well me and K. [W.] were talking about the picture she and I had taken earlier and how cute it was and so on, girl talk I guess, nothing too memorable and then we were just leaving the bathroom after washing my hands when she [S.M.] said that. We had all kind of been asking around about where J. [M.B.] was and she made this comment. Q: And there is no reason K.W. would not remember this conversation, is that correct?

A: Correct.” [ 6 ] Thus, D.B.’s evidence is to the effect that, shortly after the sexual activity, and while still at the party, S.M. talked and behaved in a way that indicated she had consented. [ 7 ] After hearing the evidence of D.B., and at the close of the defence case, the Crown sought to call evidence in reply from K.W., the young woman D.B. says was present with her and S.M. at the time of the conversation in the bathroom.

Crown Counsel advises that K.W. is expected to deny D.B.’s recollection of the conversation and attest instead to a prior consistent statement by S.M. to the effect that she had been forced to engage in oral sex by J.M.B. and had not consented. [ 8 ] Counsel for J.M.B. opposes the Crown’s application to call reply evidence arguing that it amounts to splitting the Crown’s case, that such evidence will prolong and complicate the trial and be prejudicial to the accused and that it goes only to a collateral matter.

Analysis [9] At least two different rules of evidence - that dealing with prior consistent statements and that dealing with reply or rebuttalevidence - must be considered in the analysis. 1. Prior Consistent Statements are Admissible to Rebut an Allegation of Recent Fabrication [10] Generally speaking, prior consistent statements made by a witness are not admissible.

Thus, as a general rule the Crown wasnot entitled, as part of its case to call evidence about what S.M. told other people, such as K.W., after the event but prior to coming tocourt to testify. [11] The reasons for this rule have been explained in many cases and textbooks. I will draw on the explanation provided byFeldman, J.A. in R. v. Divataris, (ON CA), [2004] O.J. No. 1945 at paras 28 to 30. [12] Essentially, the law recognizes that saying the same thing on more than one occasion is not helpful and adds nothing new to theevidence.

It is also potentially dangerous because it can mislead the judge or jury into thinking that, because a person said the samething more than once, it must be true.

But that is not the case - a lie can be repeated on more than one occasion, but it still remains a lie. [13] Thus, generally speaking, evidence from friends like K.W., family or police officers about what S.M. said to them about theevent prior to coming to court, is not admissible, if what was said is just a repetition of her version of events as told in court. [14] As with most rules there are exceptions. [15] The prior consistent statements of a witness can be admitted to rebut an allegation of recent fabrication. (This means anallegation that the complainant’s evidence “has been invented or fabricated after the events in question and thus is a “recent” invention orfabrication.” R. v.

O’Connor, (ON CA), [1995] O.J. No. 2131 at para. 16.) The purpose of allowing evidence of a priorconsistent statement is to show that the statement was not a recent invention or fabrication since the witness had made a similar statementat an earlier time, before the alleged fabrication. The prior statement is not admissible for its truth but it can be used to rebut theallegation of recent fabrication and to assess the credibility of the witness: Divataris, as above at para. 30. [16] I find that D.B.’s evidence amounts to an allegation that S.M.’s version of events as she told it at trial, is a recent fabrication.

D.B. said that during the conversation in the bathroom, which happened shortly after the sexual incident, while S.M. was still at theparty, S.M. was talking and acting in a way that would indicate she had consented to the sexual activity. The implication is that S.M.’sevidence at trial, to the effect that she did not consent, was invented or fabricated by S.M. sometime after her conversation with D.B. [17] I therefore find that it is open to the Crown to attempt to rebut this allegation of recent fabrication by calling evidence of a priorconsistent statement made by S.M. to the effect that she did not consent.

Crown Counsel advises that K.W., the witness they seek to callin reply, is expected to provide such evidence. 2. Reply Evidence [18] The Crown is not generally permitted to call reply or rebuttal evidence after hearing the Defence case. The rule and its rationaleare set out in Watt’s Manual of Criminal Evidence, 2008 at para. 22.02: “As a general rule, P is required to present its case in its entirety before D is called upon to choose whether to elicit evidence, ...Inherentin this requirement are principles of basic fairness and the notion of a case to meet.

There is, nonetheless, a confined area within which a trial judge may permit the introduction of evidence in reply or rebuttal after the defence has completed its case.

It is permissible for P to adduce, in reply , evidence that: i. becomes relevant to P’s case due to defence evidence that P could not reasonably have anticipated ; ii. responds to issues enlarged by the defence evidence in a manner that P could not reasonably have foreseen ; … It is not permissible for P to adduce in reply or rebuttal evidence that … ii. is confirmatory or repetitive of P’s case in chief; iii. was relevant, in P’s possession and should have been adduced as part of P’s case in chief; iv. contradicts defence evidence on a collateral matter …”(emphasis added) [ 19 ] Crown Counsel argues that she could not reasonably have anticipated D.B.’s evidence either from pre-trial disclosure, or from the examination in chief or cross examination of S.M. during the Crown’s case and therefore, she argues, the Crown should now be permitted to call evidence from K.W. in reply or rebuttal to the evidence of D.B. [ 20 ] Defence Counsel argues that the Crown could reasonably have foreseen that there would be defence evidence of a prior inconsistent statement by S.M. on the issue of consent, from his cross-examination of S.M.

The Crown had the evidence of K.W. in its possession and should have attempted to adduce it as part of the Crown’s case in chief so that J.M.B. would have understood fully the case he had to meet.

Finally, counsel argues, the only real purpose of the evidence of K.W. is to contradict defence evidence on a collateral matter. [ 21 ] In my view, the cross examination of S.M., on the topic of her interaction with D.B., was not sufficiently specific to allow the Crown to foresee that a prior consistent statement by S.M. to K.W. might now be admissible for the purpose of rebutting an allegation of recent fabrication. [ 22 ] The cross examination of S.M. on this issue occurred just before lunch on January 28 th and went as follows: “Q: And after you got back to the party you told individuals that you had given Mr.

B. a blow job. Correct? A: Incorrect! Q: You didn’t tell anybody that you had given J.M.B a blow job when you came back to the party? A: No. We saw - I don’t know what his brother’s name is - but we met up with his brother and I told his brother what had just happened and he said “no he didn’t” and I said “yeah, he did, that did just happen”. He said “no he didn’t” so I walked ahead of him and I went to Carol Siedel and I found her and I told her while she was taking me home.

Q: So you did tell somebody that you gave Mr. B. a blow job? A: No what I said is Mr. J.M.B. “semi-raped me” is I believe the term I used because that is what I felt, what happened, because I didn’t want to be in that situation. Q: So aside from speaking to somebody at the party after you left the location you are saying the only two individuals you talked to, period, narrowing it down, was D. B. and Carol Siedel? A: Correct Q: Nobody else? A: In the vehicle… Q: No I am not talking about the vehicle. Before you got into the vehicle and left the party the only two individuals you spoke to were D.

B. and Carol Siedel? A: Yes, correct. Q: You are positive about that? A: Positive.” [ 23 ] The subject was touched on again at the very end of S.M.’s cross examination just before 2:20 pm on the 28 th , as follows: “Q: Do you know any other members of his family, such as his sister D.? A: I have heard of her but never met her. Q: Never met her? A: I don’t think so. Q: Never met her at the party? A: No.” [ 24 ] In my view these exchanges did not provide enough detail for the Crown to reasonably anticipate evidence of the sort given by D.B.

S.M. was asked if she had “told individuals” or “somebody” that she had given oral sex to J.M.B. but she denied this. In the latter exchange her attention was directed specifically to D.B., whether she knew D.B. and whether she had met D.B. at the grad party.

But, D.B.’s name was not related back to the earlier questions about whether S.M. had “told individuals” or “somebody” at the party that she had given the accused oral sex. [ 25 ] To borrow words from s. 11 of the Canada Evidence Act, the cross examination of S.M. on this issue did not disclose the “…the circumstances of the supposed statement, sufficient to designate the particular occasion…” being referred to.

I therefore find that Crown Counsel could not reasonably have anticipated the evidence of D.B. from the cross examination of S.M. [ 26 ] I also find that even though the Crown had the evidence of K.W. in its disclosure packet there was no basis upon which a prior consistent statement of the complainant could be introduced as of the close of the Crown’s case.

It was only in response to the allegation of recent fabrication which arose out of D.B’s evidence during the defence case that K.W.’s evidence became admissible. [ 27 ] Finally, it is argued that the only real purpose of K.W.’s evidence is to contradict the evidence of D.B. which is a collateral matter. [ 28 ] Without having heard the evidence of K.W., I cannot be certain what issue or issues it will be relevant to. I agree that if the only purpose of the reply evidence was to impugn the credibility of D.B. it would be inadmissible as going to a collateral matter.

Whether D.B. is credible or not credible is not in issue in this trial. However, it appears that there is another purpose for the evidence of K.W. and that is to put before the court evidence of a prior consistent statement by the complainant in order to rebut an allegation of recent fabrication on the issue of consent. This latter purpose is directly relevant to the complainant’s credibility on the question of consent which is the central issue in this trial.

[ 29 ] Because of this I will not refuse the Crown’s application to call reply evidence on the basis that it is only relevant to a collateral matter. However, I will hear the reply evidence on a Voir Dire and then hear further from both counsel about whether any or all of the reply evidence should be ruled inadmissible as going only to a collateral matter. Conclusion The Crown’s application to call reply evidence is allowed. My expectation is that the trial will continue with the reply evidence and final submissions during the sitting of the court in Fort Nelson during the week of February 23 rd , 2015.

I would ask that counsel let the Judicial Case Manager know how much court time they expect will be required to finish the evidence and submissions in this case. _________________________ E. L. Bayliff Provincial Court Judge