R v E.F., 2021 NUCA 7

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d’appel du Nunavut Citation: R v E.F., 2021 NUCA 7 Date: 20210518 Docket: 22-19-5-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - E.F. Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ The Court: The Honourable Madam Justice Louise Charbonneau The Honourable Madam Justice Frederica Schutz The Honourable Mr. Justice Kevin Feehan _______________________________________________________

Memorandum of Judgment Appeal from the Conviction by The Honourable Madam Justice S. Charlesworth Sitting with a Jury Dated the 19th day of June, 2019 ( Docket: 22-17-102) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I.

Overview [ 1 ] E.F. appeals his conviction that on November 14, 2017, in his small Nunavut community, he committed sexual assault contrary to s 271 of the Criminal Code , RSC 1985, c C-46 . [ 2 ] E.F.’s grounds of appeal are: 1. that the trial judge erred when she allowed the Crown to broadly cross-examine a Crown witness and then introduce his hearsay statement for its truth without holding a voir dire , or ruling on it in open court; 2. when the Crown mischaracterized the evidence of that Crown witness in his closing statement, the trial judge failed to correct that mischaracterization in her charge to the jury; and 3. the Crown adduced hearsay statements from the complainant through the investigating officer and the trial judge failed to caution the jury on what use they could and could not make of those statements. [ 3 ] E.F. seeks a new trial. [ 4 ] For the reasons below, the appeal is allowed and a new trial is ordered.

II. Facts and Procedural History (

a) The events of November 13 and 14, 2017 [ 5 ] In November 2017, the complainant lived with her sister and her sister’s children. On November 13, the sisters were drinking and the complainant drank approximately a “mickey” of vodka with water, between 8:00 pm and midnight. She estimated she was “between 7 and 8” on a ten-point impairment scale. Sometime after midnight, she retired to her bedroom where she messaged friends online.

Her sister was passed out in her own bedroom and the children were in the living room. [ 6 ] The complainant’s evidence at trial was that after “half an hour or almost an hour” in her room she went into the kitchen to get a glass of water. She said E.F. walked into the house, walked “straight up” to her and “grabbed” her arm, taking her into her bedroom. She said that he “put me on my bed.

Started taking all my clothes off.” She said he removed all of his clothes and then “started having sex with me while I didn’t want to”; he “started penetrating [me] while I asked him to stop.” She said he held her down with his hands. In her statement to the police, but not in her direct evidence at trial, she said he put his hand over her mouth. She also said to the police, but not in her direct evidence, that she tried to push E.F. off during the sexual intercourse.

[7] The complainant’s evidence was that after the sexual intercourse was over, E.F. “walked out of the room with no clotheson.” [8] The complainant said she saw a friend, G.H., in the house “when [she] came down after it all happened.” She called theRCMP around 4:00 am and they immediately attended. [9] Upon arrival, Cpl Dubois observed the complainant’s sister “passed out on the...floor” in one bedroom and said thecomplainant was in the other bedroom “yelling and screaming.” He said G.H. and the children were in the living room, and that G.H.was sober and calm. [10] Cpl Dubois went into the complainant’s bedroom and found her partially dressed.

She continued to cry and yell, and got“some clothes on to cover herself up”. Cpl Dubois observed that she was “quite highly intoxicated.” [11] Cpl Dubois’ evidence at trial is the subject of one of E.F.’s complaints. He said: … I talked to her about what happened. She told me that [E.F.] had raped her, those were her words, raped. I did ask her – forinvestigational reasons I needed some more details so we know where to go.

I asked her if he had put his penis inside of her, and she toldme that he had done that. [12] Cpl Dubois said G.H. pointed out a pile of clothing on the floor, a green jacket, jeans, and a pair of shorts, and said they wereE.F.’s. E.F. did not present evidence in his defence but at the close of the Crown’s case made a formal admission that the jacket was his. [13] The complainant was taken to the local health centre at 4:25 am. The evidence of the attending nurse was that thecomplainant’s “lips were swollen, slightly reddened. There was no bruising.

There were no hand marks”, but the complainant’s “vaginalwall was slightly reddened.” [14] There was no DNA evidence linking E.F. to the sexual assault of the complainant. [15] At 6:00 am, G.H. gave a five-minute audio-recorded statement to the officer. The use made of that statement at trial is thesubject of one of E.F.’s complaints. [16] Shortly after 6:00 am, Cpl Dubois attended at E.F.’s parents’ house and arrested him.

He said E.F. was wearing a “normaltop” but “yoga type pants, like stretchy pants on his bottom” that “didn’t fit him well” and “didn’t appear to be for him at all.” [17] In his statement to the police, G.H. said he had received a telephone call from the complainant’s sister asking him to comeover and he arrived between 3:00 and 3:30 am.

He said he saw the complainant’s sister “laying down on the … floor with no pants on.”He covered her with a blanket and put her in her bedroom, but before he got her into the room he “saw [E.F.] coming out with no pantson, coming out of … where [the complainant] was sleeping.” He was wearing one of the complainant’s shirts. He said E.F. then “wentback in this room, and I could hear [the complainant] screaming, get out of here … what are you doing?” [18] G.H. said he heard E.F. say to the complainant “if you don’t stop yelling, I’m gonna knock you out,” and then “I’m just tryingto find my pants.

Then I’m going out.” (

b) G.H.’s evidence at the preliminary hearing [19] The preliminary hearing was held April 24, 2018. [20] G.H. said he telephoned the complainant’s sister sometime after midnight and was invited to come over. He said when hearrived at the residence of the complainant, about an hour and a half later, E.F. and the complainant were in the bedroom “making out”.He said he did not see E.F. come out of the bedroom. Later on, the police arrived and he spoke to them. [21] G.H. declined to read the statement he had given to the police.

To refresh his memory, it was read to him by Crown counsel.While the statement was being read, he said on multiple occasions that it was not true.

He said the complainant and her sister told him togive the police officer that statement. [22] E.F. was committed to stand trial. [23] Having determined that G.H. had recanted his statement to police at the preliminary inquiry, on May 24, 2019 Crown counseladvised defence counsel and the trial judge during a pre-trial conference that he would likely be making an application pursuant to s 9(2)of the Canada Evidence Act, RSC 1985, c C-5, for leave to cross-examine G.H. on his recorded statement to the police and for itsadmission into evidence for the truth of the statement on the principles set out in R v KGB, (SCC), [1993] 1 SCR 740,79 CCC (3d) 257. [24] In its pre-trial brief, the Crown indicated it would argue that the statement G.H. gave to police met the test for necessity andthreshold reliability, his evidence was important for the truth-finding function of the Court, and the jury ought to be left to determine theultimate reliability of the statement in conjunction with his evidence at trial.

It said any inconsistencies ought to be left to the jury toresolve. (

c) G.H.’s trial testimony and what followed [25] When G.H. took the stand at trial on June 18, 2019, he testified he had not seen the complainant or E.F. until the followingday, and did not think he heard the complainant at all that night. He said he could not remember speaking to the investigating officer ormaking the recorded statement. He described E.F. as a friend.

[26] Crown counsel advised he would need to cross-examine G.H. on his previous police statement to permit the Court todetermine whether G.H. was adverse, and to permit the evidence in his statement to be admitted for its truth. Crown counsel said: Your Honour, I would suggest to you that the issue we discussed before with respect to a Crown application is ripe, given [G.H.]’stestimony already. And I am prepared to make an application tomorrow morning, if I may, based on the materials that I provided. … in the morning I will be asking to rely on the materials that I provided.

And given that the issue has arisen, I will ask that thosematerials be filed with the Court as an exhibit, on the voir dire, not on the trial. [27] The trial then adjourned for the day, and the trial judge asked to meet counsel in her chambers, in this instance her hotel room,to discuss time lengths and scheduling matters.

At the beginning of that meeting, defence counsel “advised the trial judge and Crowncounsel that the application was being conceded” but there was no “discussion about the merits of the application(s)”. [28] The next day, June 19, Court opened with the following comment from the trial judge: I will put on the record that counsel and I had a meeting last night to talk about the issues for this morning and that I was advised that thedefence has agreed, agreed to the Crown’s motion on the voir dire and is content that the Crown be allowed to cross-examine [G.H.] atlarge, and then that the Court can play for the jury the taped statement that [G.H.] made to Corporal Dubois and the jury will be invitedto consider that statement for the truth of its contents.

And I understand that the Crown has provided a copy of that statement to the clerkand they are prepared – they are ready to play it. [29] Crown counsel then said: “Thank you, Your Honour, so that in effect concludes the voir dire that was set for this morning….” Defence counsel made no comment. [30] Some jury members had returned to the courtroom, and Crown counsel said: “So that wraps up that voir dire I would suggest,Your Honour.” [31] Crown counsel then asked to enter as exhibits by consent the audio DVD and transcript of the statement given by G.H. to thepolice, exhibits 5 and 6. [32] On continued direct examination, G.H. again fully recanted his police statement, saying he “didn’t mean to say those words.

Itwasn’t me. It was [the complainant’s sister] was telling me to say the words.” He said his statement was not true. The audio exhibit wasthen played for the jury and G.H. repeated on numerous occasions that his statement was not true: “Someone told me to say them.” Hesaid E.F. did not “really come out of the room naked” and he had not heard the complainant “yelling and screaming”. He said E.F. hadnever said he would knock out the complainant. G.H. then concluded: “I’m not going to say any more … I am done with you … . It’s nottrue, you guys are all wrong.

You guys are making statements that are not true.” He then accused the complainant and her sister of being“big time liars”. III. Analysis (

a) The use made at trial of G.H.’s statement to police [33] At the trial, G.H. testified in a manner inconsistent with the statement he gave to Cpl Dubois. This opened the door for theCrown to apply, pursuant to s 9(2) of the Canada Evidence Act, to cross-examine him about those inconsistencies, and potentially tohave him declared an adverse witness pursuant to s 9(1) and cross-examine him at large: R v Milgaard, (SK CA),[1971] 2 CCC (2d) 206, 220-22, [1971] 2 WWR 266 (SKCA), leave to appeal ref’d [1971] SCR x, (SCC), 4 CCC(2d) 566n.

Assuming G.H. maintained his recantation, it also opened the door for the Crown to apply to have the statement to CplDubois admitted for its truth, under the principled exception to the inadmissibility of hearsay: KGB, 795-796, 799-800. [34] To have G.H.’s statement ruled admissible for its truth under the principled exception, the Crown had to show, on a balance ofprobabilities, that it met the requirements of necessity and threshold reliability: R v Khelawon, 2006 SCC 57, para 42, [2006] 2 SCR787; David M Paciocco, Palma Paciocco and Lee Stuesser, The Law of Evidence, 8th ed (Toronto: Irwin Law Inc, 2020), 141-45. [35] Necessity is established when a witness testifies and recants.

Necessity refers to the unavailability of the evidence, not merelythe unavailability of the witness: Khelawon, para 78. Threshold reliability is established by showing there are sufficient indicia ofreliability to overcome the inherent dangers of relying on hearsay.

Indicia of threshold reliability can be procedural or substantive: KGB,795-96; Khelawon, paras 62-63. [36] As noted above, after G.H. had answered a number of questions in examination-in-chief, Crown counsel indicated he wouldbe proceeding to certain applications the next day. [37] When the Court reconvened, the trial judge put on the record that she had a meeting with counsel the night before and hadbeen advised the defence was consenting to the Crown’s applications to cross-examine G.H. and also to introduce his statement to thepolice as evidence of its truth.

Crown counsel then said this “concluded” the voir dire set to proceed that morning. Defence counsel saidnothing. [38] The process followed was flawed in a number of respects. [39] First, voir dires were not actually held on either application. The prospective voir dire materials prepared by the Crown werenot entered as voir dire exhibits. In addition, defence counsel did not, in the presence of E.F. and on the record, confirm that concessionswere being made and the content of those concessions.

[ 40 ] In some circumstances, silence may be taken as acquiescence. But in this case, the waiver of the voir dires and the concession that G.H.’s statement could be used for its truth were very significant and remain puzzling. G.H.’s trial testimony, to this point, did not support the Crown’s case. By contrast, his earlier statement to Cpl Dubois was highly prejudicial to E.F. The statement to police was presumptively inadmissible and manifestly adverse to the defence.

That being so, mere silence on the part of defence counsel did not constitute a proper waiver of the voir dires . [ 41 ] Finally, and importantly, the trial judge does not appear to have directed her mind to her gate-keeping function. G.H.’s statement could only be used for its truth if it met the legal requirements of necessity and threshold reliability. Even if those requirements were met, the trial judge retained a residual discretion not to allow it to go to the jury if she found its prejudicial effect exceeded its probative value: Khelawon , para 3 .

We do not know whether the trial judge addressed her mind to these issues. If she did, we do not have the benefit of her analysis and conclusions. [ 42 ] These flaws in the process followed raise questions about trial fairness, particularly given the highly prejudicial nature of G.H.’s statement to the police. (

b) Mischaracterization of G.H.’s evidence by Crown counsel [ 43 ] In his closing address to the jury, Crown counsel conceded the weaknesses in the complainant’s evidence. He said she was “quite drunk on the night” in question, there were “gaps in her memory”, “inconsistencies in her versions between what she told the police and at the preliminary inquiry and in court”, and that there were “even inconsistencies … between what she said and some of the other evidence”. He said: “I would admit that possibly you [the jury] should have had some doubt after her evidence …”.

He conceded that “on its own … it would probably not form a basis for proof beyond a reasonable doubt”. [ 44 ] He said: Her memory alone would not be enough to – would likely not be enough to find [E.F.] guilty beyond a reasonable doubt. He did say, however, she was clear about the sexual assault. [ 45 ] In summarizing some of the evidence of G.H. he said: … he heard yelling from the bedroom … consistent with someone in the bedroom being sexually assaulted. He also said: [G.H.] heard [the complainant] screaming.

He saw [E.F.] run out, partially naked, go back in, come back out with a bedsheet and leave the house in a hurry. And later: He forced her to have sex while she was saying ‘no’, while she was telling him to stop. Most likely she screamed out and he told her to shut up. He told her that he would punch her out. He went out of the room, and he saw [G.H.]. [ 46 ] However, modifying that, he said to the jury it was after E.F. had come out of the room with no pants on and then had gone back into the room when he heard the yelling and screaming.

Crown counsel quoted from G.H.’s statement: “I guess he went back in this room and I could hear [the complainant] screaming ….” [ 47 ] On three occasions, Crown counsel placed the yelling or screaming at the moment of an alleged sexual assault. That was clearly not the evidence. Once, the Crown placed the yelling or screaming after E.F. had originally left the room.

At minimum this would lead to confusion about when the yelling and screaming occurred. [ 48 ] In her charge to the jury, the trial judge did not address the timing of when G.H. heard the yelling and screaming, whether it was during a period of time in which a sexual assault may have been occurring or after, when E.F. had come out of the room and then returned looking for his pants. E.F. says it was incumbent upon the trial judge to clear up that critical issue.

We agree. [ 49 ] This went to the heart of the issue, because if, as mistakenly suggested by Crown counsel, G.H. heard yelling before he saw E.F. exit the bedroom, this may have been taken by the jury as corroboration that a sexual assault was taking place. The trial judge had a duty, as part of her charge, to correct Crown counsel’s error and dispel any confusion that might arise from it. (

c) Hearsay evidence introduced through Cpl Dubois [ 50 ] Cpl Dubois in his evidence said the complainant had told him that E.F. “had raped her” and had “put his penis inside of her”. [ 51 ] Cpl Dubois ought not have been permitted to repeat the specifics of what the complainant told him. No one suggests this out- of-court statement was admissible for its truth under the principled exception.

This was also not a situation where it was admissible for any other lawful purpose, such as to explain subsequent actions taken by Cpl Dubois. [ 52 ] The Crown acknowledges this evidence was inadmissible and that the trial judge ought to have cautioned the jury about not using it for an improper purpose. The Crown invites this Court, however, to utilize the curative proviso set out in s 686(1)(b)(iii) of the Criminal Code . (

d) Addressing question from the jury

[53] Although not raised as a ground of appeal, we find it important to comment about the manner in which a question from thejury was addressed during trial. [54] After completion of the evidence, and before counsel’s closing submissions, the trial judge received a question from the jury.The question was not reduced to writing and was, apparently, relayed orally to her by the jury officer. The trial judge did not alertcounsel to this immediately when Court reconvened.

Instead, she only told them she had received this question during the pre-chargeconference: I will put on the record … that when the jury first went out this morning after the admission about the coat, they asked Mr. Sheriff whoowned the pants or --- was that approximately what they said. [55] After a short discussion with counsel, the trial judge agreed she would add a paragraph in her charge which she believedwould answer the question from earlier in the day: … there is no evidence that you can use to directly tell you whose clothes were on the floor of [the house] except the coat that [E.F.]admits is his.

You must decide whether, in all of the circumstances they were … [E.F.]’s. [56] The jury was not recalled to answer the question separately, but during her charge the trial judge added the answer composedwith counsel in substantially those words. [57] The manner in which the trial judge addressed the question from the jury was problematic.

The proper process is set out inWatt’s Manual of Criminal Jury Instructions, 2d ed (Toronto: Carswell/Thomson Reuters Canada Ltd, 2015) 1269 and the CanadianJudicial Council Model Jury Instructions, nji-inm.ca/index.cfm/publications/model-jury-instructions/final-instructions/deliberations/procedure-for-questions, s 12.2, Procedure for Questions. If there is anything about which a jury is unclear, thecourt must make itself available to answer any questions.

If the jury, or a member of a jury, has a question they must instruct theforeperson to write out the question, put it in a sealed envelope, and hand it to the jury officer to provide to the trial judge. [58] After the court receives the question from the jury officer, the trial judge is required to read the question to counsel anddiscuss any proposed answers with counsel, in the absence of the jury. Once the answer, which must be correct and comprehensive, isformulated the jury is to be brought back into the courtroom, and the question read out, followed by the answer.

The court is required toanswer every proper question as quickly and as completely as it can, with assistance of trial counsel: R v S(WD), (SCC),[1994] 3 SCR 521, 537, 93 CCC (3d) 1; Paquette v The Queen, (SCC), [1979] 2 SCR 26. A jury should beencouraged to return with further questions if the original answer remains unclear: R v Layton, 2009 SCC 36, paras 31-33, [2009] 2 SCR540. [59] The problem here was not merely that these procedures were not strictly followed. It is also that the question came beforecounsel’s closing addresses, and they were not told about it until after they had made those addresses.

Counsel should have been madeaware of the question, and given an opportunity to have input about how it should be addressed before making their closing submissions. (e) Section 686(1)(b)(iii), the curative proviso [60] Section 686(1)(b)(iii) of the Criminal Code reads: On the hearing of an appeal against a conviction ... the court of appeal … (

b) may dismiss the appeal where … (iii) notwithstanding that the court is of the opinion that ... the appeal might be decided in favour of the appellant, it is of the opinion thatno substantial wrong or miscarriage of justice has occurred .... [61] The test is whether the verdict would necessarily have been the same if the error had not occurred, or whether there is anypossibility that if the error had not been committed, a properly instructed jury would have acquitted.

The task of the appeal court is todetermine whether “there was any reasonable possibility that the verdict would have been different had the error at issue not been made”:R v Bevan, (SCC), [1993] 2 SCR 599, 616-617, 82 CCC (3d) 310.

For the curative proviso to apply, the errorsidentified must have been harmless or of such a minor nature as to have had no impact on the verdict and caused no prejudice to theaccused, or where the evidence is so overwhelming that a conviction would be a virtual certainty: R v Khan, 2001 SCC 86, paras 29, 31,[2001] 3 SCR 823, either of which lead to the conclusion there was no substantial wrong or miscarriage of justice. [62] The Crown says if there was an error of law with respect to allowing general cross-examination of G.H., admitting hisstatement to the police into evidence for its truth, or admitting into evidence the complainant’s hearsay statement through Cpl Dubois’testimony, without any limiting warning, the curative proviso should apply in favour of upholding the decision of the jury, as nosubstantial wrong or miscarriage of justice has occurred. [63] The Crown says with respect to the s 9(2) and KGB determinations the Court was faced with a witness who was adverse andeven hostile, there was “more than enough to grant the Prosecution’s application”, and this Court is entitled to “fill the gaps, if necessary,to explain how this was an appropriate decision”.

It says this Court is in a position to determine afresh whether the statement to thepolice, which is clearly hearsay, was “reasonably necessary” and reached the threshold procedural or substantive reliability criteria. Itsays the necessity was obvious from the evidence of G.H. who had clearly recanted his statement to the police and was showing hostilitytowards answering even basic questions. It says reliability was established through examination of the circumstances in which the

statement was taken and by showing that, in all of the circumstances, the jury would be in a position to reasonably assess the worth of the statement. [ 64 ] The Crown says sufficient trust can be put in the truth and accuracy of G.H.’s statement because of the way in which it came about: solemnity of the occasion, lack of reason or motive to fabricate, audio recording of the statement, timing of the statement minutes following the event, the fact that G.H. had experienced the situation firsthand, the declaration was spontaneous, G.H. was sober, and the recording of the statement makes it possible for the jury to assess his reaction in giving the statement.

It also says the jury would be in a position to sufficiently assess the worth of the statement, particularly because G.H. was available to be cross-examined, such that prejudicial risk was nonexistent. [ 65 ] As to admission of the hearsay statement of the complainant through Cpl Dubois’ testimony, the Crown submits everything he said was properly before the jury through the direct, admissible evidence of other witnesses, including the complainant. It was not used for corroboration or to bolster the complainant’s credibility.

It says defence counsel did not object to the hearsay evidence at the time nor request a corrective instruction as a result. It says there was no significant legal error and the curative proviso should apply. [ 66 ] In deciding whether the curative proviso can be applied, the Court cannot examine each of the errors that were committed in isolation from the others. The problem is in their cumulative effect. We cannot say that absent the constellation of errors the verdict would necessarily have been the same.

Thus, this conviction is unsafe and it would not be an appropriate case for the application of the curative proviso. IV. Conclusion [ 67 ] The appeal is allowed and a new trial is ordered. Appeal heard on February 23, 2021 Memorandum filed at Iqaluit, Nunavut this 18th day of May, 2021 Authorized to sign for: Charbonneau J.A. Schutz J.A. Feehan J.A. Appearances: P. Plourde for the Respondent E. Tache-Green for the Appellant