R v HQ, 2019 NUCA 02

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v HQ, 2019 NUCA 02 Date: 20190410 Docket: 11-17-10-CAP Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - HQ Appellant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that may identify the victim must not be published, broadcast, or transmitted in any way.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 Shannon Smallwood The Honourable Mr. Justice Thomas W. Wakeling The Honourable Madam Justice Michelle Crighton _______________________________________________________ Memorandum of Judgment Appeal from the Conviction by

The Honourable Madam Justice B. Tulloch sitting with a Jury Convicted on the 17th day of November, 2016 ( Docket: 11-15-129) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I. Introduction [ 1 ] A jury convicted the appellant of sexually assaulting his sister. He appeals this conviction. [ 2 ] We dismiss the appeal. II. Questions Presented A.

Discreditable Conduct Issue [ 3 ] The Crown led evidence that the appellant sexually assaulted his sister’s partner moments before he sexually assaulted his sister. [ 4 ] Experienced defence counsel neither objected to the admissibility of this evidence nor asked the trial judge to warn the jury about the limited use it may make of this evidence. [ 5 ] Did defence counsel make these decisions for sound tactical reasons? [ 6 ] Did the trial judge err in admitting this discreditable conduct evidence without first assessing whether it was more prejudicial than probative notwithstanding that defence counsel did not object to its admissibility?

The appellant does not assert the ineffective assistance of counsel. [ 7 ] Did the trial judge err by failing to warn the jury about the limited use it may make of the discreditable conduct evidence? B.

Nondisclosure Issue [ 8 ] Shortly before the appellant’s trial for sexually assaulting his sister commenced the Crown came into possession of a report about the complainant that through oversight it failed to notify the appellant’s counsel about until his trial had been concluded. [ 9 ] The Crown concedes that it had a duty under s. 278.2(3) of the Criminal Code [1] to notify the appellant that it had the report in its possession. [ 10 ] Defence counsel was aware that this report was in the process of being prepared.

Should defence counsel have asked the Crown about the status of this report before the appellant’s trial commenced? [ 11 ] If the Crown had an obligation to disclose the existence of this report to defence counsel, did its failure contravene the norm set out in The Queen v. Dixon [2] – an accused’s right to make full answer and defence may be impermissibly abridged if there is a “reasonable possibility” that the nondisclosure impacted the trial outcome or overall fairness of the trial process. [ 12 ] Is there a reasonable possibility that the nondisclosure adversely affected the trial? C.

Reasonable Apprehension of Bias Issue [ 13 ] The jury chair spoke outside the courtroom with the Crown’s two witnesses – the complainant and her partner – a couple of times during the trial. These conversations were public, of short duration and did not relate to the trial. [ 14 ] There is no doubt about the impropriety of these contacts. But would a reasonable and right-minded person properly informed of all the facts conclude that it was more likely than not that the jury chair was partial?

III. Brief Answers A. Discreditable Conduct Issue [ 15 ] Defence counsel had good reasons not to object to the admission of the discreditable conduct evidence. It was an essential part of the narrative. Its prejudicial nature, in these circumstances was limited, if not nonexistent. The appellant was on trial for sexually assaulting his sister.

Defence counsel focussed on the related incident and cross-examined the complainant about her obviously suspect account of her role in the attack on her partner. [ 16 ] The trial judge did not err in admitting evidence that the appellant sexually assaulted the complainant’s partner moments before the appellant assaulted his sister. This evidence was undoubtedly part of the narrative and its prejudicial effect clearly did not exceed its probative value. [ 17 ] Not only did defence counsel not object, she explained the reasons she was not objecting.

Indeed, defence counsel used this evidence effectively to diminish the credibility of the complainant’s evidence about what happened on December 14, 2013. In that context, the trial judge would have fairly concluded that defence counsel was satisfied it was in her client’s interest to have this evidence before the jury and she was entitled to place significant weight on defence counsel’s decision not to object to that having been done. [ 18 ] Under the circumstances, the trial judge was justified in not warning the jury about the limited use it may make of this evidence.

She was entitled to rely on the very experienced defence counsel’s decision not to object to the admission of this evidence and not to ask for a jury instruction. B. Nondisclosure Issue [ 19 ] Defence counsel was aware that another lawyer had commissioned the contested report about the complainant and should have made further inquiries about its status if she thought it may be of any assistance to her client. [ 20 ] The Crown did not breach its duty to disclose.

It reasonably assumed that defence counsel was aware of the report’s existence. [ 21 ] Even if the Crown breached its duty, there is no basis to conclude that its nondisclosure had any impact the trial outcome or the overall fairness of the trial process. The report provided no insights that would have benefitted defence had the report been disclosed to the defence. C.

Reasonable Apprehension of Bias Issue [ 22 ] No reasonable and right-minded person in the community informed of the content and duration of the conversations between the jury chair and the complainant and her partner adopting a realistic and practical perspective would have concluded on a balance of probabilities that the jury chair was partial and unable to discharge her duty to be impartial. [ 23 ] This is a very small isolated community – 1600 residents – and contact between its members of the kind that occurred here must be an everyday occurrence. IV. Statement of Facts A.

The Indictments [ 24 ] An indictment charged the appellant with sexually assaulting his sister on or about December 14, 2013 in contravention of ss. 155 and 271 of the Criminal Code . [3] It also charged him with a contravention of these Criminal Code provisions in 1997. [ 25 ] The Crown also indicted the appellant for the aggravated sexual assault of his sister’s partner on December 14, 2013. [ 26 ] An indictment charged the complainant in this case with aggravated sexual assault of her partner. B.

The RCMP Investigation [ 27 ] The events leading up to the indictments involved two complaints. [ 28 ] MA alleged that the appellant assaulted him on December 14, 2013. [ 29 ] SQ was the second complainant. She is the appellant’s sister and MA’s partner. She alleged that the appellant sexually assaulted her on December 14, 2013. [ 30 ] SQ had consumed large amounts of alcohol and had blacked out before the appellant attacked her. When the Royal Canadian Mounted Police first interviewed her in 2014 she had no recollection of the events of December 14, 2013. This changed over time.

She eventually recalled that the appellant had assaulted her on December 14, 2013 and also sometime in 1997. She also recalled that she participated in the December 14, 2013 assault on her partner perpetrated by her brother.

C. The Psychologist’s Draft Report [ 31 ] SQ’s counsel had severe reservations about the reliability of her confession. [ 32 ] He retained a psychologist to prepare a draft report on the frailities of memory. [ 33 ] He forwarded this draft report to the Crown before November 14, 2016, the start date of the appellant’s trial for sexually assaulting SQ.

He hoped that it would cause the Crown to withdraw the sodomy charge against his client. [ 34 ] The Crown did not consider it helpful and decided to press on with the charge against SQ. [ 35 ] By inadvertence, the Crown failed to disclose the existence of this report to Ms. Crowe, the appellant’s counsel. D. The Appellant’s November 14-17, 2016 Trial [ 36 ] The appellant’s trial started on November 14, 2016 and concluded on November 17, 2016. [ 37 ] Ms. Crowe, a very experienced criminal law practitioner in the north, represented the appellant.

She had conducted between eighty to one hundred jury trials in the north. [ 38 ] The Crown led evidence through MA that the appellant had sexually assaulted him moments before he assaulted his sister. [ 39 ] Defence counsel did not object to the admissibility of this discreditable-conduct evidence. She was satisfied that it was an unavoidable part of the narrative and that everybody in the community would have heard about it. [ 40 ] SQ gave evidence for the Crown.

She testified that the appellant had sexually assaulted her on December 14, 2013 and sometime in 1997. [ 41 ] Defence counsel cross-examined SQ extensively and effectively. [ 42 ] She acknowledged that she was unsure if she actually assaulted her partner or only dreamt about it or absorbed it into her memory because her mother told her it had happened.

This would have caused the jurors to consider whether the same conditions may have accounted for her evidence that the appellant sexually assaulted her. [ 43 ] SQ admitted that she never told the investigators about the appellant’s assault on her until she gave them her third statement.

It was also around this time that SQ recalled that she and the appellant had sodomized MA with a broomstick on December 14, 2013. [ 44 ] Defence counsel did not ask the trial judge to warn the jury about the limited use that may be made of the discreditable- conduct evidence and the trial judge did not do so on her own initiative. [ 45 ] The jury convicted the appellant of sexually assaulting his sister on December 14, 2013 and acquitted him of the alleged 1997 assault. E. Post-Trial Developments 1. Jury Tampering Allegation [ 46 ] On November 18, 2016 JQ, the appellant’s brother, informed Ms.

Crowe that on November 16 and 17, 2016 he had observed the jury chair converse with his sister, the complainant, at the Co-op. [ 47 ] Ms. Crowe reported to the RCMP what the appellant’s brother had told her. [ 48 ] No charges were laid. 2. The Crown Withdrew the Charge Against SQ [ 49 ] The Crown lawyers responsible for the prosecution of the sodomy charge against SQ concluded in July 2017 that there was no reasonable prospect of conviction and recommended to the senior Crown prosecutor that the charge against her be stayed.

The psychologist’s draft report was not a factor that led to this conclusion. [ 50 ] The senior Crown prosecutor accepted this recommendation and the Crown stayed the charge against SQ. V. Key Criminal Code Provisions [ 51 ] Sections 278.2(1) and (3) of the Criminal Code [4] are as follows: 278.2

(1) Except in accordance with sections 278.3 to 278.91, no record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of any of the following offences ... : (

a) an offence under

section ... 155 ... [and] 271 ... .

…

(3) In the case of a record in respect of which this

section applies that is in the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is in the prosecutor’s possession but, in doing so, the prosecutor shall not disclose the record’s contents. VI. Analysis A. Defence Counsel Did Not Object to the Admission of the Discreditable Conduct Evidence for Sound Tactical Reasons [ 52 ] The Crown led evidence that the appellant sexually assaulted MA moments before the sexual assault on SQ.

The appellant acknowledges that defence counsel failed to object to the admission of this evidence or to the lack of a limiting instruction to the jury. However, he says her failure to object is not determinative of the analysis. He argues counsel’s lapse here was not an intentional strategy and could not have conferred a tactical advantage on the defence. Potential misuse of this evidence could only have prejudiced him. [ 53 ] The decision by a very experienced northern counsel not to raise the discreditable conduct issue was clearly a sound tactical decision.

SQ’s inconsistent and confusing statements about whether she assaulted MA were a major part of counsel’s cross-examination and submissions.

Counsel effectively used the alleged assault on MA to undermine SQ’s credibility and discredit her reliability to the jury, and to suggest SQ was motivated by guilt to make false allegations against the appellant to cover up her own responsibility. [ 54 ] Counsel chose not to ask for a limiting instruction, and as a result the jury focussed on the appellant’s cross-examination and the emphasis on SQ’s confusion over whether she assaulted her partner to impugn her credibility and suggest a motive for her evidence against the appellant. [ 55 ] The appellant concedes on the appeal that “[b]oth alleged offences occurred in the course of the same incident” and the “proceedings [concern] what amounts to a single incident.” [5] [ 56 ] In these circumstances the jury had to be made aware of the allegation that the appellant, not SQ, sexually assaulted SQ’s spouse.

Otherwise the jury would have been left with a false impression. B. The Trial Judge Did Not Err by Admitting the Discreditable Conduct Evidence and by Failing To Warn the Jury About the Limited Use It May Make of the Discreditable Conduct Evidence [ 57 ] The appellant denies that the evidence he sexually assaulted MA emerged incidentally or briefly as part of the narrative.

Rather, he asserts that the Crown specifically referred to this evidence in the opening statement, questioned MA on it and elicited details of it in examination-in-chief. [ 58 ] The appellant denied the allegation he sexually assaulted his sister. He says that since the case turned on credibility and the jury’s primary task was to assess the credibility of the witnesses, the jury may well have used the evidence in a prohibited way. The potential moral prejudice or prejudicial reasoning was that the jury may have concluded the appellant deserved to be punished for the assault on MA.

This may have manifested itself in one of several ways. It may have caused the jury to refrain from applying the presumption of innocence. Or the jury may have used the evidence as a basis to conclude the appellant was the type of person who would sexually assault a woman and conclude he committed the sexual assault on his sister that same night. [ 59 ] The appellant suggests this prejudicial and troubling evidence was simply left with the jury and the detailed description elicited by the Crown jeopardized his right to a fair trial.

The trial judge should have instructed the jury not to reach a conclusion based on general propensity, moral prejudice or other prohibited reasoning. [ 60 ] As conceded by the appellant, the alleged assault on MA and the assault on SQ were parts of a single incident. It would not have been possible for witnesses to give their evidence without mentioning the allegation of the assault on MA. For example, SQ’s evidence that the appellant said: “I’m going to have her instead” as he pulled her closer would have made no sense.

Nor would it have made sense that SQ was interviewed twice before she remembered the assaults on herself and on her partner. As described in

Part VI.A above, the appellant emphasized in cross-examination that it was SQ who assaulted MA. [ 61 ] Therefore, the probative value of the evidence clearly exceeded any prejudicial effect. The appellant was on trial for a serious sexual assault on his sister. The assault on MA was alleged to have occurred mere moments before the assault on SQ. This was not a situation where an allegation of an historical assault may create an impression of bad character. In fact, here the jury acquitted the appellant of the charges relating to the alleged assault on SQ in 1997. C.

Defence Counsel Should Have Asked About the Status of a Report that She Knew Was Forthcoming if She Thought It Might Assist the Defence [ 62 ] The Crown came into possession of an expert’s report on the complainant on October 19, 2016, approximately one month before trial. The Crown did not provide formal notice to the defence that it was in receipt of the report until September 2017. The Crown concedes it had a duty under s. 278.2(3) of the Criminal Code to notify the appellant it had the report in its possession. A special commissioner found the Crown’s failure to disclose the report was inadvertent. [6]

[ 63 ] The report concerned SQ’s memory, and specifically the effects of alcohol blackout and repeated recollection on memory. The author of the report did not speak to SQ. He reviewed some but not all of her statements. [ 64 ] The appellant argues that no matter the cause of the failure to disclose was inadvertence, he was deprived of critical information that would have informed his decisions in the conduct of his defence. At trial, the report would have been used in cross- examination to further demonstrate that SQ herself questioned the reliability and accuracy of her account.

The withheld information could have affected the jury’s conclusions on the only real issue at trial – the credibility and reliability of SQ. [ 65 ] The appellant suggests the test in The Queen v. Dixon [7] is met because he did not have the report before his trial. He concedes his counsel was on notice about a pending report as early as May 2016. His counsel requested an adjournment on May 2, 2016 because a report “on the effects of alcohol blackout, which is central to the allegations in this matter”, was being obtained.

The appellant’s counsel admitted she did not follow up with her agent about an August 8, 2016 appearance at which imminence of the report was discussed. The Crown expressly advised the court that the report could have a significant impact on the appellant’s trial. [ 66 ] The Crown reasonably assumed the appellant’s counsel was aware of the pending report’s existence.

The appellant’s counsel should have inquired about the status of a report she clearly knew was forthcoming. [ 67 ] However, even if the Crown had breached its duty to disclose the report, the contents of the report demonstrate that the outcome of the trial could not have been affected, nor was overall trial fairness affected. [ 68 ] The report contained only observations about memory which are matters of common experience.

It stated there was a substantial time gap between events and SQ’s recollection of them; that repeated recounting provides more opportunities to incorporate inaccurate details and further contaminate the memory; and that consumption of large quantities of alcohol compromises the accuracy of memory, and blackouts result in no memory at all.

Further, the report said that discussing the events, particularly with those who participated, provides additional opportunities to unwittingly incorporate new and possibly inaccurate information into one’s own memory; and confidence in memory does not correlate closely with accuracy. [ 69 ] The jury would not have needed an expert to explain these observations. In any event, a careful review of the record indicates that these same points were made through the evidence, counsel’s submissions and the trial judge’s instructions. The problems with SQ’s memory were evident.

There were no other lines of inquiry the appellant could have pursued based on the report. D. No Reasonable Person in the Community Aware of the Important Facts Would Have Concluded on a Balance of Probabilities that the Jury Chair Was Partial [ 70 ] Shortly after the jury’s verdict was delivered, the appellant’s brother JQ reported a concern of jury tampering to Ms. Crowe. He alleged that on November 16 and 17, 2016 while the trial was ongoing, he observed discussions between SQ and the jury chair at the Co-op. Ms. Crowe reported the events to the RCMP. The RCMP carried out an investigation.

They obtained statements from all those allegedly involved.

The investigation closed without any charges being laid. [ 71 ] The special commissioner’s report stated that SQ, MA and the jury chair all testified before him that they did speak at some point during the trial but did not speak about the trial. [8] The special commissioner acknowledged inconsistencies in their evidence but accepted their testimony. [9] He gave no weight to JQ’s testimony. [10] [ 72 ] The special commissioner said the contact was “certainly inadvisable” [11] but accepted there were no discussions related to the trial while it was ongoing.

He said that in this community there are few gathering places and a total avoidance of contact is virtually impossible. [12] [ 73 ] The appellant says that although the evidence heard in the context of the special commission did not reveal evidence of impropriety in the nature of actual influence on jury deliberations, actual prejudice is not necessary to find irregularities in jury conduct. Inappropriate jury contact can lead to a miscarriage of justice by undermining the appearance of justice and fairness.

He suggests the circumstances surrounding the exchanges between the Crown witnesses and the juror in this case when considered as a whole are sufficient to meet that test. A well-informed, reasonable person considering the whole of the circumstances would conclude the process followed appears unfair. [ 74 ] The appellant points out there were only two Crown witnesses and the jury chair had conversations with both of them during the trial and at different times. He emphasizes these aspects of the evidence. The conversations were more than a quick exchange in passing.

The jury chair had conversations with SQ on more than one occasion during the trial. The jury chair engaged in animated conversation with MA at the Co-op restaurant that went beyond mere acknowledgement of acquaintanceship. Further, this was a very short trial and not a situation where lengthy proceedings meant that regular contact between jurors and witnesses would be inevitable.

The conversation between MA and the jury chair took place immediately before the jury was charged, and MA and SQ were not in the habit of socializing with the jury chair. [ 75 ] The presumption that jurors are impartial is only displaced by clear evidence.

The test for reasonable apprehension of bias is objective and focuses on what a properly informed person, viewing the matter realistically and practically and having thought the matter through, would conclude. [13] [ 76 ] The special commissioner accepted that the jury chair, SQ and MA did not discuss the case during their conversations. [14] He said that absent the evidence of JQ, which he rejected in its entirety, [15] there was no reliable basis to conclude otherwise.

The special commissioner referred to the context of the trial, that it took place in a small isolated community in which it is likely people involved in the trial will on occasion come into contact with others involved in the trial. [16] [ 77 ] A reasonable person who understood the circumstances of life in a small isolated northern community, knowing that the jury

chair did not discuss the trial with MA and SQ, would conclude on a balance of probabilities that this contact did not create a reasonable apprehension of bias. There is no clear or cogent evidence here to displace the presumption of impartiality. VII. Conclusion [ 78 ] This appeal is dismissed. [ 79 ] Mr. Q must surrender into custody at the Royal Canadian Mounted Police detachment in Pond Inlet, Nunavut no later than 1:00 p.m. Monday, April 15, 2019. Appeal heard on February 12, 2019 Memorandum filed at Iqaluit, Nunavut this 10th day of April, 2019 Authorized to sign for Smallwood J.A. Wakeling J.A.

Authorized to sign for Crighton J.A. Appearances: S. Siebert for the Appellant D. Littlefield X. Proestos for the Respondent