Keeping v. R., 2011 NLCA 52

Date: 2011 0720 Docket: 10/105 Citation: Keeping v. R. , 2011 NLCA 52 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : JAMES KEEPING APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Wells, Welsh and White, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General) 200901T3813 Appeal Heard: May 26, 2011 Judgment Rendered: July 20, 2011 Reasons for Judgment by Welsh, J.A. Concurred in by Wells and White, JJ.A. Counsel for the Appellant: Peter Ralph Counsel for the Respondent: Vikas Khaladkar

Welsh, J.A.: [1] A jury found James Keeping guilty of the indictable offences of unlawful confinement, aggravated assault, assault causingbodily harm, and uttering a threat. Mr. Keeping has appealed these convictions, submitting that the trial judge erred in his instructions tothe jury by failing to include a Vetrovec caution in relation to the complainant’s testimony and by improperly admitting hearsay andopinion evidence. BACKGROUND [2] On May 14, 2010, a jury found Mr.

Keeping guilty of one count each of the following indictable offences under the CriminalCode: aggravated assault (section 268(1)); assault causing bodily harm (section 267(b)); unlawful confinement (section 279(2)(a)); anduttering a threat (section 264.1(1)(a)). The offences were committed against the complainant, Mr. Keeping’s girlfriend, between Januaryand May 2008. [3] The couple began living together in Fortune, NL. They moved within a few months to St. John’s where, according to thecomplainant’s testimony, she and Mr. Keeping injected cocaine, smoked crack cocaine and marijuana, and drank alcohol.

She said thatshe engaged in prostitution in St. John’s both to help finance Mr. Keeping’s drugs and to earn the approximately $220 to $240 a dayrequired to support her own drug habit. During this time, the complainant frequently attended at Naomi Centre, an outreach service andshelter for homeless young women.

The complainant’s counselor testified that she had “pretty much consistent contact” with thecomplainant for approximately sixteen years, beginning when the complainant was sixteen years of age. [4] In his sentencing decision, the trial judge provided “a brief description of the events which support the convictions” ((2010),2010 NLTD 125 , 300 Nfld. & P.E.I.R. 274, at paragraph 8): Count No. 1 – Confinement contrary to Section 279(2)(a) [9] This offence took place on May 7, 2008 while the couple was living together at the apartment of an acquaintance in St. John’s.

After a fight at which the accused assaulted her (giving rise to the charge in count no. 2) she woke up with a boot lace tied to her andaround his body. She said she thought it meant that she couldn’t leave. A little later when Mr. Keeping woke up she was able to leavewhen she told him she had to go to the shelter for women to pick up a check [sic]. There was no precise evidence about the length oftime involved, but it was not a lengthy confinement. Count No. 2 – Aggravated Assault contrary to Section 268(1) [10] The circumstances of this count took place on May 7, 2008.

It was while they were living together in the apartment of a friend inSt. John’s. They both fell asleep on the couch after injecting cocaine. When they woke up the complainant said that the offender wasfighting with her after accusing her of being with another man. He hit her on the face and head as he was lying over her. Then he startedchoking her with his hands until she couldn’t breathe. She said she thought she was going to die. She passed out and had some bruisingon her neck as a result. Count No. 3 – Assault causing Bodily Harm contrary to

Section 267(b) [11] This offence occurred in January 2008 while the couple was living in Fortune in an abandoned house on Bunker Hill Road. Onthe evening of January 15, 2008 they were drinking at a friend’s house with several others. The complainant admitted having about adozen beer as well as a couple of draws of marijuana. The couple left the house and went back to their own place about 11:00 pm. Onarrival a fight ensued and the accused hit her three or four times with his fist while they were sitting on the bed. She suffered a lacerationto her forehead which required two stitches at the Grand Bank Hospital.

Count No. 4 – Uttering Threats contrary to s. 264.1(1)(a) [12] The complainant related an incident involving a cell phone she received from the women’s shelter for use in emergencies. Shewas not specific about the date on which this incident occurred, but the evidence indicated that it happened during the early part of 2008after they had moved from Fortune to St. John’s. Mr. Keeping accused her of using the phone to call other people and then stabbed thephone with a butcher knife which was about 8 to 9 inches long. He destroyed the phone. He told her that it could easily be her.

Thecomplainant said she felt he would kill her. [5] This

summary by the trial judge was provided for purposes of sentencing Mr. Keeping. There were other instances ofviolence referenced by the trial judge in his instructions to the jury, and on which the jury could have relied. Further, it was open tomembers of the jury to rely on any of the evidence which they accepted and determined to be relevant. Accordingly, in considering theappeal against conviction, this Court is not confined by the facts contained in the above

summary. [6] In addition, I note, neither the judge nor the jury was restricted to considering the evidence based on the theories put forwardby counsel. While opening and closing submissions by counsel are an important and helpful part of the proceedings, the responsibility toassess the evidence and reach a conclusion based on the law rests with the jury with the assistance of the judge.

ISSUES [7] At issue in this appeal is whether the trial judge erred in his instructions to the jury by: (1) failing to include a Vetroveccaution in relation to the complainant’s testimony; and (2) admitting testimony of the counselor at Naomi Centre that is submitted to behearsay or opinion evidence. ANALYSIS Vetrovec Caution

[8] Mr. Keeping submitted that the trial judge erred in his charge to the jury by failing to give a Vetrovec caution regarding theevidence of an “unsavoury” witness, in this case, the complainant. The caution is required to be given where there is reason to suspectthe credibility of a witness due to factors such as “involvement in criminal activities, a motive to lie by reason of connection to the crimeor to the authorities, unexplained delay in coming forward with the story, providing different accounts on other occasions, lies told underoath, and similar considerations” (R. v.

Khela, 2009 SCC 4 , [2009] 1 S.C.R. 104, at paragraph 35). The submission in the casebefore this Court is based on the complainant’s illegal drug use, alleged contradictions in her testimony, and an admission that she hadnot been truthful in testimony she gave in an earlier court proceeding. In Khela, Fish J., for the majority, explained the purpose for theVetrovec caution: [47] It is not “overly formalistic” to ensure that triers of fact attain the appropriate level of comfort before convicting an accused onthe basis of what has for centuries been considered unreliable evidence.

A truly functional approach must take into account the dualpurpose of the Vetrovec warning: first, to alert the jury to the danger of relying on the unsupported evidence of unsavoury witnesses andto explain the reasons for special scrutiny of their testimony; and second, in appropriate cases, to give the jury the tools necessary toidentify evidence capable of enhancing the trustworthiness of those witnesses. [9] In the case before this Court, the trial judge did not include a Vetrovec caution in his charge to the jury.

Indeed, neithercounsel at trial either requested a Vetrovec caution or raised it as an issue when the trial judge reviewed his charge with them prior todelivering it to the jury. While the failure of counsel to raise the issue is not determinative since the ultimate responsibility for properlycharging the jury rests with the judge, I reiterate the important role counsel play in assisting the trial judge to ensure the jury is properlyinstructed, including when a Vetrovec caution is warranted.

In Khela, Fish J., for the majority explained: [49] While the obligation to ensure that juries are properly instructed clearly falls to the trial judge, counsel should not abdicate theirduty of assisting the court. As Bastarache J. recently explained in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523: … it is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge’sinstructions to the jury. While not decisive, failure of counsel to object is a factor in appellate review.

The failure to register a complaintabout the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation. [para. 58] In this light, I note without more that counsel did not object to the judge’s charge in this case. [10] A review of the submissions of counsel on the appeal before this Court leads to the conclusion that there is no basis on whichto conclude that a Vetrovec caution was necessary or appropriate. [11] I begin with Mr. Keeping’s submission in respect of the complainant’s admitted use of illegal drugs.

The fact that an importantwitness in a case was a drug addict at the time of the offence does not necessarily lead to the conclusion that she is an unsavoury witnessas contemplated for purposes of a Vetrovec caution. In R. v. MacDonald (L.R.) (2000), 2000 NSCA 60 , 184 N.S.R. (2d) 1(NSCA), the witness, Reid, was the only other person present when MacDonald murdered the victim. Reid testified that she had been aheavy user of cocaine before and after the event. The trial judge was not requested to, and did not, give a Vetrovec caution. The Court ofAppeal concluded this was not an error.

The trial judge had referred to Reid’s heavy drug use (injecting cocaine up to six times a day,taking other pills, and drinking alcohol), and had instructed the jury that they “might consider that fact in determining what effect alcoholor drug use might have on the witness and the witness’s ability to accurately recollect past events and to relate past events to others”(paragraph 171).

Chipman J.A., for the Court, concluded: [175] The jury was well furnished by the trial judge with the tools necessary to assess Reid’s credibility. [12] In the appeal before this Court, the complainant’s admission that she was using illegal drugs must be considered in light of hertestimony that her use of drugs had not impaired her memory of the events and that she had been free of illegal drug use for the two yearsprior to her testimony. The jury was in a position to assess her testimony and her credibility in accordance with the trial judge’sinstructions in the context of the whole of the evidence.

There is nothing in the circumstances of this case to suggest that thecomplainant’s use of drugs would support characterizing her, for that reason, to be an unsavoury witness whose credibility would, onthat basis, be suspect. [13] Mr. Keeping also submitted that the complainant’s credibility was suspect because there were contradictions between hertestimony and other evidence at trial. The majority of the points of difference identified by Mr. Keeping are properly characterized asminor and not material.

They are the kind of inconsistencies that may occur in a trial and which a jury can be expected to assess in thecontext of the evidence as a whole. Such inconsistencies would not warrant a Vetrovec caution. In this case, the trial judge drew thejury’s attention to examples of inconsistencies in the evidence and correctly instructed the jury as to how inconsistencies may be relevantin assessing the complainant’s credibility. [14] With respect to the charge of assault causing bodily harm, Mr.

Keeping pointed out that the complainant had been untruthfulregarding lacerations to her forehead requiring stitches at the Grand Bank hospital. The complainant testified at trial that the injuryresulted from Mr. Keeping hitting her with his fist three or four times. At the time of the injury, the complainant told hospital staff thatshe had tripped over a pair of shoes and fallen down some stairs. At the preliminary inquiry she testified that she told the hospital staffshe had run into a door. It was open to the jury to assess this evidence and draw inferences and conclusions from it.

Such evidence doesnot indicate the need for a Vetrovec caution. [15] In addition, Mr. Keeping submitted that the complainant’s testimony in a previous trial warranted a Vetrovec caution on thebasis that the complainant had lied under oath. In the earlier case, Mr. Keeping was acquitted when the complainant failed to giveevidence, simply stating that she did not recall. The complainant admitted in her testimony in this case that the acquittal had made herangry and upset. Counsel for Mr.

Keeping put to the jury that the acquittal provided motivation for the complainant to lie about thecircumstances related to the charges before them. The trial judge referred to the incident during his charge: During her testimony, [the complainant] was questioned about her reaction to a previous trial involving Mr. Keeping. She agreed that

she was upset about the acquittal, but she also said, in her words, and I’m quoting from my notes, as accurately as I can recall she said, “itwas my fault that he got acquitted. I didn’t testify truthfully; I said, “I don’t recall.” The defence argued that this puts in issue hermotivation in testifying during this trial. The trial judge instructed the jury: Now, I just mentioned the, the testimony concerning a previous trial involving Mr. Keeping. I have to caution you that the evidence onthis point can only be used in relation to assessing the credibility of [the complainant].

It may not be used in any way to support aninference, a negative inference in particular about Mr. Keeping. The existence of any previous charges is entirely irrelevant to theseproceedings. In your assessment of the charges against Mr. Keeping you must only consider the evidence presented in this trial. [16] Earlier in his instructions to the jury, the trial judge spoke to the relevance that lying under oath has when assessing a witness’credibility: … Discrepancies in minor matters are often unimportant. On the other hand it’s entirely different when a witness lies under oath.

A lieunder oath is always serious and may well taint the entire testimony of the witness. [17] In assessing Mr. Keeping’s submission on this point, as with all evidence, it is important to consider the witness’ testimony inthe context of the case as a whole. While, in general, a Vetrovec caution may be warranted where a witness has previously lied underoath, this will not always be the case. The effect of a lack of truthfulness must be assessed in light of the relevant circumstances,particularly where the witness’ motivation for lying may be a relevant consideration.

In this case, the complainant admitted that she hadbeen untruthful in the prior case when she testified that she did not recall, thereby failing to provide the Court with information whichshe, in fact, had regarding the charge against Mr. Keeping. This negatively affected the Crown’s ability to prove its case.

Despite thisevidence of untruthfulness, taking into account the circumstances and considering the question of motivation, the trial judge did not errin proceeding on the basis that the complainant’s prior untruthfulness when she was under oath was not such as to warrant characterizingher as an unsavoury witness. Rather, the issue of her credibility was adequately addressed by means of the standard instructions alertingthe jury to assess the witness’ testimony with the appropriate degree of caution. [18] In his submission, Mr. Keeping relied on the decision in R. v.

McCarroll (2008), 2008 ONCA 715 , 238 C.C.C. (3d)404 (ONCA), in which Epstein J.A., for the Court, found that a Vetrovec caution was necessary where the evidence of a critical witnesswas “inherently suspect” (paragraph 68). In particular, Epstein J.A., referring to relevant aspects of the evidence, explained: [69] Cabral admitted to lying under oath during her testimony. Her fraud conviction was in relation to the theft of a Visa card. During cross-examination Cabral was asked whose Visa card she stole. She replied that she did not know.

Later she conceded that shehad lied to the court and that the stolen card belonged to her grandfather. I disagree with the Crown’s submissions the consequences ofthis lie should be discounted. Cabral told a direct lie to the jury in a situation where a man’s liberty was at stake. In such circumstances,lying under oath must always be taken seriously. [70] Cabral was also asked about whether she served alcohol to Kidd. She said she did not.

Every witness asked about this, includingKidd herself, testified to the contrary. [71] Furthermore, Cabral admitted to having been less than truthful in the course of her first statement to the police. [72] I also note that Cabral testified that she was unaware of Prebtani’s death until the preliminary hearing in this matter, somethingthat is very difficult to believe. [73] I do not accept the Crown’s submission that the standard portions of the trial judge’s instructions were sufficient to alert the juryto the need to approach Cabral’s evidence with the requisite degree of caution. … [19] The evidence supporting the characterization of Cabral as an unsavoury or inherently suspect witness warranting a Vetroveccaution in McCarroll is not comparable to the situation in this appeal where the complainant had previously intentionally failed toprovide evidence which was critical to proving a charge against Mr.

Keeping. While this was a serious matter, that failure did not, in thecircumstances, warrant a Vetrovec caution. Rather, as discussed above, issues as to the complainant’s credibility and reliability inrelation to her evidence were adequately addressed in the standard jury instructions on point provided by the trial judge. [20] In

summary, I am satisfied that the trial judge provided adequate and appropriate instructions to alert the jury to assess thecomplainant’s testimony with the appropriate degree of caution. The conclusion follows that the trial judge did not err when he did notinclude a Vetrovec caution in his instructions to the jury. Evidence of the Counselor at Naomi Centre [21] Mr. Keeping submitted that portions of the testimony by the counselor from Naomi Centre were inadmissible because theyconstituted hearsay or opinion evidence.

The submission in respect of hearsay was that the counselor gave testimony regarding priorconsistent statements made by the complainant as to her violent relationship with Mr. Keeping. I do not accept this proposition. [22] Although, during examination by the Crown, the counselor did testify that she counseled the complainant during the relevanttime period about how to leave a violent relationship she was in at the time, no mention was made of Mr. Keeping. The counselor wastestifying as to the conversations she had with the complainant.

This testimony constituted part of the narrative, not evidence as to thecomplainant’s prior consistent statements. [23] Mr. Keeping also submitted that the counselor gave opinion evidence that could only be given by an expert. In particular, hepointed to the counselor’s testimony regarding bruises on the complainant’s ribs. The counselor testified: A. That day I saw her come in to Naomi Centre. She was very upset and had trouble catching her breath because her ribs were injured.

And I saw her ribs, and it looked like there might have been old rib injuries, ’cause they were sort of different colour, but there were certainly new injuries to her ribs. And we helped her that day get to the doctor; and the doctor said that she needed some medication to help with pain, ’cause there was nothing broken but it was badly bruised, and we assisted her with helping with some medications for that. … A.

The bruising, it looked like it might have been, and I know that it was – from looking back at the records, I know that there was an incident that happened the day before, or a couple of days before, where there was injuries to her ribs, that I never – that I didn’t see. But when we were looking at her ribs that day, after that incident, you could see that there was some bruising that had looked like it was not – that it was older, several days, or a day older. … A. Yes.

Well I guess that injury had just happened, so it was like there was no – you couldn’t see swelling or anything like that, but she was, you know, holding onto her ribs and couldn’t breathe. … [ 24 ] The counselor’s reference to, and explanation regarding, “older” bruising would not require expert medical testimony. The information given by the counselor was based on what she observed, and, in the circumstances, would be within the competence of a reasonable person in her position without the need for qualification as an expert. In R. v.

R.S.M. , 1999 BCCA 218 , Finch J.A., for the Court, concluded that an adult layperson may give evidence as to the age of bruising, “namely, that red and purple bruises are of recent origin, and that with the passage of time, bruises become yellow”, a matter within the “everyday experience of the world” (paragraphs 8 and 21). [ 25 ] Further, the counselor’s evidence must be considered in the context of her earlier response to the Crown’s question regarding the complainant’s physical appearance: Q. Now during 2008 did you personally have contact with [the complainant]? A.

Yes, yeah, I did, I had a lot of contact with her, ’cause she lived close by, so she came by a lot. Q. And did you – A. Maybe daily or every other day really. Q. Okay. And during this contact did you make any observations of her physical appearance? A. Well, yes, I mean, 2008, from January of 2008 til March, I guess, we had a lot of contact with [the complainant], and mostly, mostly it was around crisis, every [sic] high crisis incidents where she – we spent a significant amount of time, almost daily or every other day talking about how to get out of a violent relationship that she was in at that time.

She would appear with bruises, she didn’t know where – sometimes she would say where the bruises came from; sometimes she wouldn’t. There were specific incidents where she had bruised ribs and we took her to the – we took her to the doctor, the Blackmarsh Road walk-in clinic, where the doctor examined her and stuff. It was almost a daily event of wondering about [the complainant’s] safety between January to March. [ 26 ] Mr.

Keeping also submitted that the “[the counselor] essentially gave an opinion regarding ‘Battered Women’s Syndrome’ in confirming for the jury that an abused woman will repeatedly return to her abusing partner”, and that such evidence must be given by a person properly qualified by the Court as an expert. Again, the complainant’s testimony must be considered in context. She was responding to a question from defence counsel as to why Naomi Centre had not advocated for “victim of violence funding” for the complainant.

The counselor testified, to explain the funding issue: … But, I guess, at that point [the complainant] was requesting that we would advocate that funding for her. And we said that we wouldn’t, ’cause we weren’t really sure what was happening with the relationship, with her and Mr. Keeping. And knowing the psychology of what happens with people in violent relationships, they often go back and come back and go back again. That happens. So understanding that psychology, we didn’t want to advocate for it at that time, ’cause it’s a one-shot deal. Q. I see. A.

And so if you get [the funding], and because if the relationship is in that wavering point, which, you know, the (unintelligible) shows women and men will go back to abusive relationships many, many times over. We wanted her to have that pocket of funding for when the relationship – when she really needed it. [ 27 ] Providing this explanation in response to a question from defence counsel does not constitute giving an expert opinion.

Crown counsel’s reference to this evidence in his closing statement to the jury did not constitute impermissible reliance on an opinion requiring a witness qualified as an expert in “battered women’s syndrome”. [ 28 ] The conclusion follows that the trial judge did not err by admitting testimony of the counselor that constituted improper hearsay or opinion evidence.

SUMMARY AND DISPOSITION [ 29 ] In

summary, the trial judge did not err: (1) by failing to include a Vetrovec caution in his instructions to the jury; or (2) by

admitting testimony of the counselor that could be characterized as hearsay or opinion evidence. [ 30 ] Accordingly, the appeal is dismissed. _______________________________ B. G. Welsh, J.A. I concur: ______________________ C.K. Wells, J.A. I concur: ______________________ C.W. White, J.A.