2011 NBCA 74, 2011 NBCA 74

COURT OF APPEAL OF NEW BRUNSWICK 74-10-CA VALMONT MICHAUD APPELLANT VALMONT MICHAUD APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Michaud v. R., 2011 NBCA 74 Michaud c.

R., 2011 NBCA 74 CORAM: The Honourable Justice Deschênes The Honourable Justice Richard The Honourable Justice Bell CORAM : L’honorable juge Deschênes L’honorable juge Richard L’honorable juge Bell Appeal from a decision of the Court of Queen’sBench: May 28, 2010 Appel d’une décision de la Cour du Banc de la Reine: Le 28 mai 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBBR 200 , 2010 NBQB 200 Décision frappée d’appel : 2010 NBBR 200 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: April 19, 2011 Appel entendu : Le 19 avril 2011 Judgment rendered: September 8, 2011 Jugement rendu : Le 8 septembre 2011

Reasons for judgment by: The Honourable Justice Deschênes Motifs de jugement : L’honorable juge Deschênes Concurred in by: The Honourable Justice Richard The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Richard L’honorable juge Bell Counsel at hearing: For the appellant: Jean A. Cormier For the respondent: Pierre Roussel, Q.C. Avocats à l’audience : Pour l’appelant : Jean A. Cormier Pour l’intimée : Pierre Roussel, c.r. THE COURT The appeal was allowed from the bench. The guilty verdict was set aside and a new trial ordered.

LA COUR Accueille l’appel séance tenante, écarte le verdict de culpabilité et ordonne la tenue d’un nouveau procès. English version of the judgment of the Court rendered by DESCHÊNES, J.A. I. Introduction [ 1 ] The appellant, now 66 years old, was found guilty of incest ( s. 150(1) of the Criminal Code ) and of having sexual intercourse with a person under the age of 14 years who was not his wife (s. 146(1) of the Code ).

He was sentenced to an unconditional three-year term of imprisonment for the incest and to an unconditional three and one-half-year term of imprisonment for the other offence, which sentences were to be served consecutively. He was also subject to the usual orders under ss. 109, 487.051 and 490.012 of the Code .

[ 2 ] The offences occurred in 1971 and 1977. The two alleged victims were less than 11 years old and both were related to the appellant. The trial was held before judge and jury. The appellant appeals his conviction and seeks leave to appeal his sentences. [ 3 ] The appellant raises several grounds of appeal before this Court. Amongst these, two are worthy of consideration. After hearing both parties, this Court allowed the appeal from the bench, set aside the guilty verdict and ordered a new trial, with reasons to follow. These are the reasons. II.

The Relevant Facts [ 4 ] During the pre-trial conference, the Crown prosecutor informed the trial judge and counsel for the appellant (different from counsel who appeared before this Court on appeal) that he intended to introduce four audio-visual disks into evidence containing statements made by the appellant to the investigating police officer. At that time, counsel for Mr. Michaud informed the judge and the prosecution that she did not intend to object to the admission into evidence of the statements made by the accused.

Unfortunately, those statements had not been transcribed and the judge did not become aware of their content until the beginning of trial, that is, at the same time as the jury. Now, it turns out that, in response to questions asked by the police, the appellant spoke about his bad character and propensities.

Among other things, he stated that he was very attracted to young girls, that he had engaged in violent behaviour on several occasions during his youth, that throughout his marriage he had been and continued to be a skirt chaser, that he drank excessively and finally, that he had had sexual intercourse with a young girl 14 to 16 years of age over a period of several months when he was over fifty years old. [ 5 ] This evidence which was heard by the jury at the beginning of the trial in fact permeated the trial and took on considerable significance.

Indeed, the prosecution brought this evidence to light during cross-examination of the appellant. For example, the prosecutor suggested to the appellant that [TRANSLATION] “in this statement, it looks pretty obvious that, at one point in your life, you were particularly fond of young girls”, an assertion that Mr.

Michaud readily admitted except to add that he was in his twenties at the time. [ 6 ] Later on, during his closing statements to the jury, the prosecution stated: [TRANSLATION] “The facts are that since his youth, Valmont Michaud has been a man attracted to young girls…and has tried to pick up others…”. [ 7 ] Finally, the trial judge stated in her charge to the jury that the appellant [TRANSLATION] “made advances to 15 and 16-year-old girls while he was much older than them…[and] apparently had sexual intercourse with a young girl 14-15- 16 years of age over a period of several months while he was in Ontario”. [ 8 ] To explain the Crown’s position, the judge added the following: [TRANSLATION] “Here is how I see the prosecution’s position.

The Crown is arguing that Valmont Michaud is an individual who has always been attracted to young girls. Whether or not they were related to him did not seem to prevent him from giving in to his urges”. [ 9 ] Moreover, earlier in her charge to the jury, she stated as follows: [TRANSLATION] You have heard many things about Mr. Michaud, such as the fact that he has had serious problems with alcohol, he spent household money on alcohol, he ran around with other women and made advances to 15 and 16-year-old girls while he was much older than them.

He apparently had sexual intercourse with a young girl 14-15-16 years of age over a period of several months while in Ontario. He was aggressive and got into fights. He was capable of revenge. All of these matters – these matters are not directly related to the charges before you, other than the fact that Mr. Michaud told you that there are things he cannot remember because of his drinking. Therefore, you may not rely on this evidence to decide that Mr.

Michaud committed the offences with which he is charged today, that is, incest and having sexual intercourse with a girl under the age of 14, based solely on the fact that in his own words, he was a person of bad character in the past. This is not enough to find him guilty on these charges. Clearly, you take all these things into account but the Crown still has to prove beyond a reasonable doubt that the accused committed these two offences. III. The Grounds of Appeal Considered by the Court in its Decision

[ 10 ] In essence, the appellant claims that he was deprived of the effective assistance of counsel on several fronts. [ 11 ] He argues that the most serious error was the consent to the admission into evidence of the appellant’s statement without the benefit of a voir dire where, at the very least, the evidence of the appellant’s bad character and propensities could have been excised from that statement. [ 12 ] The appellant submits that his counsel made two other errors, the first when she failed to object vigorously to the cross-examination of the appellant on his lifestyle, character and propensities with regard to young girls.

Furthermore, with no objection from appellant’s counsel, the Crown prosecutor took the liberty in his closing statement of telling the jury that the appellant’s bad character and propensities were evidence they could consider in arriving at a guilty verdict on each charge. [ 13 ] Finally, the appellant submits that his trial counsel erred in failing to bring to the attention of the trial judge the errors that slipped into her findings with respect to the admissibility of the evidence and with respect to her charge to the jury on the appellant’s bad character and propensities. [ 14 ] The appellant argues that these judicial errors deprived him of a fair trial.

For this reason, he is asking the Court to set aside the guilty verdict on each charge and to order a new trial. IV. Analysis and Decision [ 15 ] It should be noted at the outset that the appellant’s trial counsel was duly informed of the allegations of incompetence that form the basis of the appellant’s grounds of appeal, and that she refused to participate in the proceedings in any way whatsoever. We were so informed by both solicitors of record. [ 16 ] The onus is usually on a defendant raising the ineffectiveness of trial counsel as a ground of appeal to adduce evidence in support of that allegation.

On the other hand, counsel’s ineffectiveness occasionally becomes apparent upon a reading of the trial record itself, with no need for extrinsic evidence. This is so in the case at bar. [ 17 ] This Court has had the opportunity to deal with the principles to be applied when an appeal is based on a claim of counsel incompetency. In Gardiner v.

R. , 2010 NBCA 46 , 362 N.B.R. (2d) 179 , Richard, J.A. stated as follows on behalf of the Court: It is incontestable that, in the modern Canadian criminal justice system, a person who chooses to be represented by a lawyer has the right to the “effective assistance” of that counsel. This proposition goes to the very heart of the adversarial system upon which our criminal justice system is founded. It is a principle the Supreme Court of Canada recognized in R. v.

G.D.B. , 2000 SCC 22 , [2000] 1 S.C.R. 520 , as a principle of fundamental justice that is “derived from the evolution of the common law, s. 650(3) of the Criminal Code of Canada, and ss. 7 and 11(

d) of the Canadian Charter of Rights and Freedoms ” (para. 24). It follows, therefore, that in some circumstances, the ineffective assistance of counsel at trial may form the basis for appellate intervention. However, the standard is high. To be successful in an appeal based on an ineffectiveness claim, an appellant must establish that his counsel’s “acts or omissions constituted incompetence” (the performance component) and that “a miscarriage of justice resulted” (the prejudice component).

Appellate interference is only justified when both components have been established. [paras. 1-2] [ 18 ] The Crown prosecutor conceded that he was surprised when counsel for the appellant consented to the introduction into evidence of all the statements made by Mr. Michaud without a voir dire . He acknowledged from the outset that these statements dealt directly with Mr.

Michaud’s bad character and propensities, and that a voir dire would probably have led the trial judge to at least question the admissibility of this evidence at that stage of the trial and prior to it being put before the jury. [ 19 ] The Crown prosecutor also informed this Court that he considered that counsel had probably given her consent for strategic reasons.

On this specific point, the prosecutor was quick to acknowledge that he could not imagine any sort of strategy that would have justified that consent especially in view of the fact that on voir dire , the appellant could have asked that this evidence be excised (see in this regard R. v. Bonisteel , 2008 BCCA 344 , [2008] B.C.J. No. 1705 (QL) , at para. 45 ). Moreover, counsel for the appellant’s objection during cross-examination clearly indicates that her consent had nothing to do with a defence strategy.

V. The Law as it Pertains to Evidence of Bad Character and Propensity [20] As a general rule, the prosecution is not permitted to adduce evidence intended to prove the bad character ofthe accused. However, the prosecution is permitted to adduce such evidence under certain circumstances (see, in this regard, Watt’sManual of Criminal Evidence (Thomson-Carswell: Markham Ont., 2007), para. 32.01 at p. 431). [21] More specifically, the principles with respect to the admissibility of such evidence have been summarized asfollows by the Court in R. v. G. (S.G.), (SCC), [1997] 2 S.C.R. 716, [1997] S.C.J.

No. 70 (QL): It is trite law that “character evidence which shows only that the accused is the type of person likely to have committed the offence inquestion is “inadmissible” (emphasis in original): see for example Morris v. The Queen, (SCC), [1983] 2 S.C.R. 190, atpp. 201-2; R. v. B. (F.F.), (SCC), [1993] 1 S.C.R. 697, at p. 730. However, there are three general exceptions underwhich evidence of bad character of the accused can be adduced: (1) where the evidence is relevant to an issue in the case: see, for example, Morris, supra, at p. 202; B. (F.F.), supra, at p. 731. See also R. v.

Lepage, (SCC), [1995] 1 S.C.R. 654, at pp. 672-74; R. v. Hinchey, (SCC), [1996] 3S.C.R. 1128, at para. 135, per Cory J[;] (2) where the accused puts her character in issue: see, for example, R. v. McNamara (No. 1) (1981), (ONCA), 56 C.C.C. (2d) 193 (Ont. C.A.), at p. 352, leave to appeal granted on other grounds (1981), (SCC), 56 C.C.C.(2d) 576 (S.C.C.); (3) where the evidence is adduced incidentally to proper cross-examination of the accused on her credibility: see, for example,Lucas v. The Queen, (SCC), [1963] 1 C.C.C. 1 (S.C.C.); R. v. Chambers, (SCC), [1990] 2 S.C.R.1293.

In my view, the evidence of bad character of the accused in the instant appeal was admissible as relevant to significant issues in the case,and it is therefore unnecessary to consider whether it might also have been properly admitted under the other two exceptions to theexclusionary rule. Evidence which incidentally demonstrates bad character can also be directly relevant to a key element of the Crown’s theory of the case,such as motive, opportunity or means: see R. v. Davison (1974), (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.); Hinchey,supra, at para. 135.

Evidence of motive, for example, is always relevant in that it makes it more likely that the accused committed thecrime, although it is not an essential element of criminal responsibility: Lewis v. The Queen, (SCC), [1979] 2 S.C.R.821. Evidence which is directly relevant to the Crown’s theory of the case is admissible even though it may also demonstrate the badcharacter of the accused, as long as its probative value outweighs its prejudicial effect: B. v. (F.F.), supra, at p. 731.

Even if evidence isadmissible under this exception, it is clear that it still cannot be used to determine guilt simply on the basis that the accused is the type ofperson to commit the crime: B. v. (F.F.), supra. The trial judge has a duty to charge the jury in this regard, and to warn them against theimproper use of the evidence. The appellant argues that a trier of fact cannot use such evidence to assess the general credibility of the accused by inferring from thebad character of the accused that she is not likely to tell the truth. I cannot accept that contention.

Once evidence of bad character isadduced because it is relevant to an issue in the case, it can properly be used in assessing the general credibility of the accused. As longas the evidence is not used for the purpose of finding guilt on the basis of the accused’s alleged propensity to commit the crime, the jurycan take the evidence into account in assessing the accused’s testimonial trustworthiness. [22] In the present case, the appellant denied in his testimony having committed the alleged acts. On the otherhand, he never put his character in issue.

The Crown prosecutor himself acknowledged that at trial, the appellant never claimed that hehad a good reputation. On the contrary, the appellant readily admitted the numerous lapses in his behaviour over the years, in both his

statement and throughout his testimony. [ 23 ] In this situation, it is appropriate to consider on what grounds this evidence would be admissible. The prosecution offered no valid argument for its admission into evidence. As previously stated, such evidence can only be used to contradict evidence of the appellant’s good character, which was not put in issue in this case. Furthermore, this evidence was not relevant to the issues in this case, such as identity, motive, opportunity or means, or any prosecution theory relating to the case.

In fact, given the context in which this evidence was adduced at the beginning of trial and later during the cross-examination of Mr. Michaud, the prosecution has never been able to justify its admissibility as an exception to the general rule. There were certainly some minor discrepancies between Mr. Michaud’s testimony and his statements to the police. On the other hand, Mr. Michaud never made any attempt to deny his dishonourable behaviour over the years and, as we saw in paragraph 66 of R. v.

G. (S.G.) , even if the prosecution is able to cast doubt on the general credibility of the accused on the basis of bad character evidence, this evidence must still be admissible as being an exception to the exclusionary rule. [ 24 ] In short, it is clear that the prosecution had only one goal in adducing such evidence and that was to convince the jury that the appellant had committed the alleged offences simply because he was a person of bad character with immoral propensities. VI.

Counsel’s Omissions at Trial [ 25 ] Given the law with respect to evidence of bad character of an accused, it is clear that trial counsel was under a duty to object vigorously to the introduction into evidence of the statements made by the appellant. She should have ensured that a voir dire was held in order to expound upon the applicable law to the trial judge in the absence of the jury. As the appellant argued before this Court, a number of comments the judge made at trial reveals she had serious doubts about the admissibility of this evidence. On the other hand, given that counsel for Mr.

Michaud had consented thereto, the trial judge ruled that the jury could hear this evidence. I will come back to this later. [ 26 ] In my view, it was the responsibility of trial counsel to attempt to persuade the judge to excise the evidence of bad character from Mr. Michaud’s statements. Based on the trial judge’s remarks, this evidence may well have been excised and that ruling would most certainly have changed the shape of the trial. [ 27 ] As already stated, this evidence unfortunately pervaded the trial. While it is true counsel for Mr.

Michaud objected timidly to the prosecution’s cross-examination on this point, the prosecution argued that because she had consented to the introduction into evidence of Mr. Michaud’s statements, it was now too late to object. The trial judge ruled on the issue and stated: [TRANSLATION] “But it is already too late, everything has already come out and you did not object”. [ 28 ] Trial counsel should have objected later on when the prosecution literally invited the jury to take this evidence into account to find Mr.

Michaud guilty, and when the trial judge did not instruct the jury clearly and precisely that it could not use this evidence to either determine Mr. Michaud’s guilt or his general credibility. VII. The Trial Judge’s Errors [ 29 ] The appellant raised grounds of appeal that focused primarily on the professional ineffectiveness of his trial counsel. Only indirectly did he mention the trial judge’s errors with respect to the admissibility of the evidence and her charge to the jury.

In essence, his main argument was that trial counsel should have taken the necessary steps to lead the judge in the right direction on the admissibility of the evidence of bad character and in her charge to the jury. I have already stated the reasons why I believe the appellant is right as regards counsel’s omissions on these issues. [ 30 ] Having said that, it should be noted that a trial judge must never abandon the role of guardian that it is his or her duty to assume when the admissibility of evidence at a jury trial is in issue. In my view, this duty cannot be overridden at trial by the consent of counsel.

Clearly, a trial judge must be careful not to question strategic decisions made by counsel. However, inadmissible evidence does not suddenly become admissible just because counsel has consented to its admission into evidence as a matter of strategy or by reason of incompetence.

[31] In fact, this Court ruled on this issue in R. v. Ambrose (1975), (NB CA), 11 N.B.R. (2d)376, [1975] N.B.J. No. 110 (QL) (affirmed in (SCC), [1977] 2 S.C.R. 717). Moreover, the same principle was recentlyupheld by the Quebec Court of Appeal in Hurtubise v. R., 2011 QCCA 337, [2011] Q.J. No. 1456 (QL).

I would subscribe to theremarks made by the Court in Hurtubise on the duty of the trial judge presiding over a jury trial with respect to the admissibility ofevidence and charge to the jury: [TRANSLATION] In Seck, Justices Thibault and Côté expressed the following view as to how to instruct a jury when there is concern about evidence ofpropensity: [TRANSLATION] 61 It is well established that the danger associated with evidence of propensity lies in the assumption that the accused is in all likelihoodguilty because he is a bad person or, likewise, that he may have a propensity to commit the sort of offence with which he is charged.

Inthe present case, evidence of the appellant’s violent and aggressive behaviour towards almost everyone he associated with, such as thevictim in this case, could not help but paint a picture of a violent man who was likely to stab people with whom he had a disagreement.

A jury cannot help but be influenced by this dark picture in arriving at its verdict. 62 Furthermore, even in the absence of an objection by either counsel to evidence of propensity, and in the absence of a request for aspecific charge to the jury on that point, one must not lose sight of the fact that a judge presiding over a jury trial has a duty to excludeany inadmissible evidence. This principle was upheld by the Supreme Court in R. v.

D. (L.E.), (SCC), [1989] 2 S.C.R.111: While the cross-examination by counsel for the accused compounded the error, and counsel for the accused is by no means blameless,this does not relieve the trial judge of his duty to exclude inadmissible evidence. In R. v. Ambrose (1975), (NB CA),25 C.C.C. (2d) 90 (N.B.S.C., App. Div.), aff’d (SCC), [1977] 2 S.C.R. 717, a Crown witness made an unresponsivestatement on cross-examination by defence counsel who then invited the witness to repeat the statement rather than objectingimmediately to the answer.

I agree with the following statement of the Appeal Division, at pp. 91-92, with respect to the duty of a trialjudge: In a criminal trial there is a duty on the trial [j]udge to exclude inadmissible evidence even though adduced by counsel for the accused ornot objected to, and should inadmissible evidence be adduced, the trial [j]udge should either instruct the jury immediately to disregard itor, if it is of so prejudicial a nature that the jury would not have the capability of disregarding it, he should discharge the jury and order anew trial: see R. v.

Farrell (1909), (ON CA), 15 C.C.C. 283, 20 O.L.R. 182 (C.A.); R. v. Doyle (1916), (NS CA), 26 C.C.C. 197, 28 D.L.R. 649, 50 N.S.R. 123 (C.A.). [Emphasis added.] 63 Likewise, it is the duty of the trial judge to properly instruct the jury even if counsel has a role to play, as stated by Major, J. in R. v.Arcangioli, (SCC), [1994] 1 S.C.R. 129: It is expected that counsel will assist the trial judge in ensuring the charge to the jury is complete. It is regrettable that the appellant’strial counsel did not raise this issue before the trial judge.

However, the defence theory arose naturally and clearly out of the evidenceand the accused was entitled to have the jury charged with respect to it. [Citation omitted.] [para. 33] See also the following decisions: R. v. Normand, 2002 MBCA 95, [2002] M.J. No. 271 (QL); R. v. Weatherbie, 1998 ABCA 88, [1998]A.J. No. 315 (QL), para. 40; R. v. Watson (B.C.C.A.), [1991] B.C.J. No. 2861 (C.A.) (QL). [32] In the present case, none of the evidence of Mr. Michaud’s bad character was admissible.

Once this evidencewas divulged to the jury, the trial judge should have immediately warned the jury to disregard that evidence, as long as she believed thatMr. Michaud could still have a fair trial. If not, she should have stopped the trial. She clearly should have prevented the prosecutionfrom using this evidence during cross-examination of Mr. Michaud and during closing arguments to the jury. [33] Admittedly, the trial judge did give some kind of warning to the jury about the use of bad character evidence in

her charge to the jury. On the other hand, that instruction was neither sufficiently clear nor adequate to remove the alleged highlyprejudicial effect on the appellant. To the contrary, in one and the same breath, the trial judge canceled out the warning she had justgiven: [TRANSLATION] “This is not enough to find him guilty on these charges.

Clearly, you take all these things into account, butthe Crown still has to prove beyond a reasonable doubt that the accused committed these two offences”. [34] In my opinion, this charge fell far short insofar as the message to the jury should have been an unequivocalinstruction to disregard this evidence in determining the credibility and guilt of Mr. Michaud. VIII. Was the Reliability of the Verdict Compromised? [35] The appellant was charged with two offences that allegedly occurred more than three decades ago. The onlyincriminating evidence was provided by the two complainants. Mr.

Michaud denied committing these offences. His credibility wasclearly a major issue at trial and it goes without saying that the inadmissible evidence of Mr. Michaud’s bad character was highlyprejudicial. [36] It is difficult in this situation, if not impossible, to know what the jury made of this unfettered evidence. In myview, it would be risky to assume that the lack of a proper charge with respect to the evidence of Mr. Michaud’s bad character had nomajor effect on the jury’s deliberations. After all, as stated by Chief Justice Lamer (as he then was) in R. v.

B. (F.F.), (SCC), [1993] 1 S.C.R. 697, [1993] S.C.J. No. 21 (QL), “there are three possible effects of such evidence upon the jury: first, the jurymay convict based on propensity; second, the jury might convict to punish for past acts; and third, the jury might become confused andsubstitute a verdict with respect to the past acts for a verdict on the charges in issue.” (para. 13) [37] In a trial such as this one, it is of the utmost importance that the reliability of the verdict not be put into doubtdue to clearly prohibited reasoning.

An accused facing charges based on incidents that supposedly happened almost 40 years ago mustbe assured that if he is convicted, that conviction is grounded in admissible evidence. [38] In my view, there was clearly judicial error in this instance and it can be stated with certainty that the reliabilityof the verdict was compromised.

In fact, on this specific point, the prosecution did not even attempt to invoke the remedial provision ofthe Criminal Code (s. 686(1)(b)(iii)) to argue that the wrongly admitted evidence, in and of itself, was so insignificant that it had noeffect on the verdict and caused no prejudice to the accused. IX. Disposition [39] For these reasons, we allowed the appeal from the bench, set aside the guilty verdict and ordered a new trial. ____________________________________ ALEXANDRE DESCHÊNES, J.C.A. NOUS SOUSCRIVONS À L’AVIS ____________________________________

J.C. MARC RICHARD, J.C.A. _____________________________________ B. RICHARD BELL, J.C.A.