R v Desjarlais (DG), 2016 MBCA 69

Citation: R v Desjarlais (DG), 2016 MBCA 69 Date: 20160623 Docket: AR14-30-08296 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin BETWEEN : HER MAJESTY THE QUEEN ) W. Y. Martin White ) for the Appellant Respondent ) ) C. R. Savage - and - ) for the Respondent ) DENIS GARY DESJARLAIS ) Appeal heard: ) January 22, 2016 (Accused) Appellant ) ) Judgment delivered: ) June 23, 2016 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ). On appeal from 2014 MBQB 15 , 301 ManR (2d) 280 CHARTIER CJM Introduction and Issues [ 1 ] The accused appeals his convictions on sexual assault and on sexual exploitation counts involving a child complainant. [ 2 ] This appeal raises issues relating to whether the procedure followed at trial was fair to the accused. In an unusual move, the Crown asked to recall the complainant after she and another witness had already testified and been excused. The purpose of the recall was to have her adopt, pursuant to

section 715.1 of the Criminal Code , the contents of a video statement she had previously given (the video statement) and have it admitted into evidence. Over the accused’s objections, the trial judge granted the Crown’s request. [ 3 ] The principal issue on this appeal is whether the trial judge erred by allowing the Crown to recall the complainant and, if not, whether she erred by admitting the video statement into evidence. The other issues can be reframed as one: did any errors in the trial judge’s credibility assessment of the complainant cause the verdict to be unreasonable?

Background [ 4 ] The accused was treating the complainant in his capacity as an Aboriginal healer. She complained that he sexually assaulted her on a number of occasions during that time. He was charged with sexual assault and sexual exploitation. At that time, the complainant was 14 to 15 years old. Shortly after making her complaints, she gave the video statement. [ 5 ] The trial was held four years later. The Crown had indicated during the pre-trial process that it would not tender the

video statement into evidence, preferring to rely on the complainant’s viva voce testimony. At the preliminary hearing and when thecomplainant initially testified at trial, the Crown did not seek to admit the video statement. It did, however, present the video statementtranscript to the complainant to refresh her memory. Counsel for the accused also referenced the transcript when cross-examining her. Following her testimony, the trial judge excused the complainant.

What was evident, after the first day of the trial, was that thecomplainant’s evidence was not as complete as the Crown had hoped. [6] The next day, a friend of the complainant took the stand. She testified that the complainant had extreme difficultieswith reading and comprehending written material. It became inferable from the friend’s testimony that the complainant had been unableto read the transcript so as to refresh her memory. The Crown immediately applied to recall the complainant in order to enter the videostatement into evidence. It is important to note that the Crown had not yet closed its case.

Proceedings were adjourned in order to givecounsel for the accused time to respond. [7] The next day, counsel for the accused argued that, were the Crown’s request granted, he would suffer prejudice in oneof two ways: first, that he was caught off guard and not properly prepared to argue against it because the Crown had indicated, duringthe pre-trial process, that it would not tender the video statement into evidence; and second, that the accused would suffer prejudice werehis trial delayed because of an adjournment request. [8] Following submissions, the trial judge took a brief recess.

During that recess, the accused suffered a heart attack. Understandably, the trial was adjourned. When discussing possible trial continuance dates, the trial judge told counsel that the prejudiceconcerns raised by the accused were now moot because of the forced adjournment brought about by the accused’s unfortunate healthissues. The trial judge advised counsel that, under the circumstances, they should be prepared to argue whether the Crown should beallowed to recall the complainant.

The matter had to be adjourned a few more times because of the accused’s on-going health problems. [9] Ultimately, the trial judge granted the Crown’s request to recall the complainant. After that ruling, a voir dire into theadmissibility of the video statement was held and the Crown called the complainant and the police officer who had taken the videostatement. The complainant adopted that statement, saying that what she said in the video statement was true. Both the complainant andthe police officer were cross-examined. The Court recessed.

During that recess, another emergency, this time unrelated to the accused’shealth problems, caused the trial to be adjourned. [10] Eventually, after hearing submissions, the trial judge allowed the video statement into evidence pursuant to section715.1, ruling that all pre-conditions had been met and that its introduction would not interfere with the proper administration of justice.

The trial judge also ruled that the accused had the right to cross-examine, for a second time, both the complainant and the complainant’sfriend. [11] In the end, the trial judge convicted the accused on both counts and sentenced him to two years less a dayimprisonment, followed by three years of supervised probation. Standard of Review [12] The trial judge’s decision on whether to allow the Crown to recall the complainant is an exercise in judicial discretion.

It is owed “considerable” deference and a court of appeal should only interfere if it is shown that an injustice has resulted or there wasirreparable prejudice to the accused (see R v P (MB), (SCC), [1994] 1 SCR 555 at 569 (hereinafter referred to as MBP);and R v G (SG), (SCC), [1997] 2 SCR 716 at para 81). [13] I now turn to the standard on which to review the trial judge’s decision to admit the video statement pursuant to section715.1. Typically, questions surrounding the admissibility of evidence are questions of law reviewable on the correctness standard.

However, where the admission of evidence requires an evaluation of certain criteria, such as in the case of a

section 715.1 application,the trial judge’s assessment is a discretionary decision and, unless there was misdirection or the decision was so clearly wrong as toamount to an injustice, it is owed significant deference (see R v Regan, 2002 SCC 12 at para 117, [2002] 1 SCR 297). [14] With respect to whether the trial judge’s credibility assessment led to an unreasonable verdict, appellate interferencewill be unjustified unless it is established that the assessment cannot be supported on any reasonable view of the evidence (see R v RP,2012 SCC 22 at para 10, [2012] 1 SCR 746).

Analysis Did the Trial Judge Err by Allowing the Crown to Recall the Complainant and, If Not, Did She Err by Admitting the Video Statementinto Evidence? [15] Permission to recall a Crown witness and the breadth of the evidence to be given by that witness are highly fact-specificdecisions that will be based on the trial judge’s exercise of discretion. The keystone principle which will guide the trial judge willalways be whether the accused will suffer prejudice or an injustice will occur.

In MBP, the Supreme Court of Canada stated that thequestion of prejudice and injustice to the accused is to be considered no matter when the Crown’s request to recall a witness occurs—whether before the Crown closes its case (the first phase), immediately after the Crown closes its case, such as in response to a directedverdict motion (the second phase); or after the defence has started to answer the case against it (the third phase).

However, it was alsonoted that “a court’s discretion with respect to reopening will be exercised less readily as the trial proceeds” (at p 569). [16] A trial judge has considerable latitude in allowing a Crown witness to be recalled, prior to the closing of the Crown’scase.

In the following first phase cases, trial judges allowed Crown witnesses to be recalled for various purposes: to give additionalevidence to clarify earlier testimony (see R v Langlois, 2014 ABCA 352 ); to give additional evidence which was left out due toan oversight (see R v Hernandez, 2008 BCSC 1470 ; and R v Tremblett (AC), 2012 NSPC 118, 325 NSR (2d) 1); to giveadditional viva voce evidence to clarify or repeat what was contained in affidavit evidence (see R v Bath, 2010 BCSC 321 (QL)); toenable the Crown to refresh the witness’s memory so that additional details of the crime could be recalled and given in evidence (see R vTorres, 2013 YKTC 3 ; and 2013 YKTC 4 ); to give additional evidence because the Crown changed its approach to

proving its case after the first week of trial (see R v McKinnon, 2014 BCSC 721 ); to give a child witness another attempt toprovide substantive evidence of the crime when she had been unable to do so in her earlier testimony (R v PM (1997), 48 OTC 241 (Ct J(Gen Div)); and to permit the Crown to submit a

section 715.1 videotaped interview to provide a more detailed account of the crime (R vPS (2006), 20 OTC 69 (Ct J (Gen Div)). [17] Factors which were taken into account when assessing the prejudice to the accused and the interests of justice in theabove-noted cases included, whether there was any evidence of tactical or strategic manipulation (Langlois); whether there was a simpleprocedural error or oversight (Langlois; Hernandez; Tremblett); whether there was evidence that the Crown has been ill-prepared, orshould have anticipated needing the proposed evidence (Hernandez; McKinnon); whether the evidence was highly material (Langlois;Hernandez; Tremblett); the length of the proposed evidence and whether other witnesses would need to be recalled (Hernandez; Bath);how far along the Crown was in its case (Hernandez; PS); whether the Crown had changed its approach to the case and whether this wasat an early or late stage in the case (Hernandez; Bath; Torres; McKinnon); whether there was early disclosure of the proposed evidence(Bath; Tremblett); whether the proposed evidence would affect the accused in other ways, such as changing his position on admissions(Hernandez); and whether it was likely that the earlier cross-examination of witnesses would have proceeded differently (Tremblett;McKinnon; PS). [18] A criminal proceeding is a dynamic process.

No two trials are the same. Sometimes a witness does not testify asexpected, which sometimes requires counsel to change tactics. Such are the vagaries of trials. Appellate courts must consider thecontext of how the trial developed when reviewing the manner in which a trial judge decided to conduct it (see R v Rockey, (SCC), [1996] 3 SCR 829). [19] In the present case, the Crown made an unusual request to recall the complainant for the purpose of making a section715.1 application after that witness had been excused and another witness had testified.

The trial judge relied upon MBP for theproposition that, if any prejudice suffered by the accused could be properly addressed, there was a broad discretion to allow the Crown torecall a witness before its case was closed.

In this regard, the trial judge noted that: the Crown’s recall application was made before ithad closed its case; the video statement had been disclosed to the accused for some time; and, any prejudice concerns would beaddressed by allowing the defence to cross-examine the Crown witnesses again. [20] The trial judge also noted that the defence was not able to identify a particular reason why the accused would beprejudiced by having the complainant recalled other than to say that the Crown should be restricted by the tactical choices it made,which, in this case, was the choice not to rely upon the video statement.

As previously noted, the prejudice concerns first raised(unprepared to argue and trial delay) had become moot because of the forced adjournment brought about by the accused’s healthsituation. As a result of the forced adjournment, the accused had ample time to prepare to argue the motion and, if need be, to cross-examine Crown witnesses. In the end, the trial judge permitted the Crown to recall the complainant. [21] In my view, the accused’s argument, that he was prejudiced when the Crown moved to admit the video statement intoevidence after saying that it would not, has no merit.

The Crown is generally entitled to modify its strategy or tactics during the courseof a trial unless it affects the fairness of the trial, results in a Charter breach, or constitutes an abuse of process (see R v Pickton, 2010SCC 32 at para 19, [2010] 2 SCR 198; and R v Anderson, 2014 SCC 41 at paras 59-61, [2014] 2 SCR 167).

It is important to note thatthe accused never raised Charter or abuse of process concerns, only fairness/prejudice concerns. [22] To appreciate the reason for the change in trial strategy and the highly unusual recall request to attempt to introduce thevideo statement, it is necessary to examine how the trial unfolded. The basis for the Crown’s change of plans was explained to the trialjudge. It was not because of an oversight or lack of preparedness on the part of the Crown.

Rather, it was because the Crown had notbeen aware, until the friend’s testimony, that the complainant suffered from a serious reading handicap. As a result, she had been unableto read the transcript of her video statement so as to refresh her memory, thereby hampering her ability to recall the incidents. [23] The trial judge found the explanation for the Crown’s change of strategy to be legitimate.

She remained unconvincedthat the accused would suffer any real prejudice in light of the following facts: he would not have been surprised by the content of thevideo statement because it had been disclosed to him at the beginning of the pre-trial process; he would have the right to pursue furthercross-examination of the Crown witnesses; he was given time to prepare for the cross-examination because of the forced adjournment;and, moreover, he would know the case he had to meet before deciding whether to call evidence. [24] I see no reason to interfere with the trial judge’s decision.

The unexpected turn of events caused the Crown to makeadjustments upon realizing the problem. Trials are fluid and counsel are expected to deal with matters that may not have beenanticipated. The Crown, like defence, is not held to a pre-determined script. It can, before it closes its case, fill in evidentiary gaps, aslong as doing so does not cause an injustice or prejudice the accused’s defence. [25] It is important to understand what is meant by “justice” and “prejudice” in a Crown recall application.

In MBP, theSupreme Court of Canada expounded on what “justice” means in such applications, explaining that its definition will vary according towhere it falls on the first-to-third phase spectrum, with “wider societal interests” being of greater concern when considering what justicerequires at the first phase of proceedings and “protecting the interests of the accused” being of greater concern at the third phase (at p570): At this late [third] stage, the question of what “justice” requires will be directed much more to protecting the interests of the accused thanto serving the often wider societal interests represented by the Crown, the latter being a more pressing consideration at the first and, to alesser extent, the second phase. [emphasis added]

[ 26 ] “Prejudice” in the context of a Crown recall application does not mean any detrimental effect on the accused by increasing the chances of conviction but, rather, any detrimental effect on the fairness of the trial by prejudicing the accused’s defence (see MBP at pp 568-69). In The Honourable Mr. Justice S. Casey Hill, Professor David M. Tanovich & Louis P.

Strezos, McWilliams’ Canadian Criminal Evidence , 5th ed (Toronto: Thomson Reuters, 2016) vol 2 (loose-leaf updated 2016, release 1), the authors explain that a trial judge will generally allow the Crown to recall a witness at the first phase since prejudice to the accused can usually be remedied (ch 21:60.10 at 21-157) : Because any prejudice to the defence can usually be alleviated, it is fair to say that the most pressing consideration at this stage of the trial is society’s interest in putting before the fact finder evidence material to the truth-seeking function of the criminal justice system. [ 27 ] A trial judge is allowed considerable latitude at the first phase of proceedings.

What is critical is that the trial judge ensures that any unfairness or prejudice to the accused’s defence be addressed through adjustments to the trial process. In my view, that is what the trial judge did in the case at hand. As a result, I would reject the accused’s submission that the trial judge erred by allowing the Crown to recall the complainant. She committed no error in principle, nor did she err in her exercise of discretion. [ 28 ] I will now consider the accused’s argument that the trial judge erred by admitting the video statement into evidence.

The trial judge explained in her reasons that, had the Crown sought to introduce the video as part of the complainant’s original evidence, she would have had no trouble concluding that it should be admitted into evidence. The accused conceded this point on appeal. [ 29 ] The accused’s contention relates to timing: while it would have been permissible to have admitted the video statement when the complainant first testified, it was not permissible when the complainant testified as a recalled witness.

The accused submits that allowing it at the recall stage contravenes “evidential rules against hearsay, prior consistent statements and bolstering the witness”. Yet, the accused concedes in his factum that these same concerns “are not engaged by the s. 715.1 process if that process is done during the child witness’s direct examination.” [ 30 ] I do not accept this argument. As was pointed out by the Crown, the

section 715.1 application was in fact made during the complainant’s direct examination, albeit after she was recalled to the stand. This is not a situation where the complainant was called after the defence had opened its case; that is, at the third phase. As explained in MBP (at pp 580-81) and in G (SG) at paras 37-45 , recalling a Crown witness at the third phase is objectionable because it may jeopardize the principle against self-incrimination, affect the accused’s right to make full answer and defence, and put the fairness of the trial in danger.

These major concerns do not apply when a Crown witness is recalled at the first phase of proceedings because the accused has not yet been asked to respond to the Crown’s case without knowing the full case to be met. [ 31 ] In my view, the trial judge correctly concluded that the

section 715.1 pre-conditions had been met and her reasons show she took into account the accused’s concerns regarding prejudice (see 2013 MBQB 190 , 295 ManR (2d) 196). She stated (at para 43): The overarching objective of s. 715.1 of the Code is to ensure that the court has the best evidence available to assist in the search for the truth.

While this must be balanced against any prejudice that admitting the video would cause to the accused, I do not think that the timing of the Crown’s application in this case creates any additional “prejudice” to the accused that is not otherwise implicit in the application of the provision . That is to say, any prejudice caused by the inability to contemporaneously cross-examine the complainant exists whether the video is introduced at the outset of the Crown’s case or at this stage.

And, as I said, the Supreme Court has held that that prejudice does not render the admissibility of the video unfair. [emphasis added] [ 32 ] The accused has not persuaded me that the trial judge failed to properly exercise her discretion when she concluded that the admission of the video statement would not interfere with the proper administration of justice.

As a result, I would not interfere with the trial judge’s exercise of discretion in this regard. [ 33 ] In the end, I have not been convinced that the trial judge erred with respect to either her decision to permit the Crown to recall the complainant or her decision to admit the video statement into evidence. In my view, appellate interference is unjustified. Did Any Errors in the Trial Judge’s Credibility Assessment of the Complainant Cause the Verdict to be Unreasonable? [ 34 ] The last issue was not seriously pursued at the appeal hearing.

The accused argues that the trial judge erred when she assessed the complainant’s credibility on the standard applicable to children’s evidence and when she “discounted” material inconsistencies in her testimony.

[35] The complainant was between 18 to 20 years old when she testified. The trial judge accepted that the complainantsuffered from a learning disability that made it difficult for her to express herself. She stated that, “because of [the complainant’s]limitations, she must be viewed more as a child than as an adult” (at para 25). The accused submits that the trial judge erred by applyingthe standard of a reasonable child, as opposed to that of a reasonable person. [36] I would not accept the accused’s argument.

The trial judge used a common-sense approach which recognizes that theassessment of credibility does not require a judge to treat a witness exclusively as a child or as an adult. This approach was encouragedin R v W(R), (SCC), [1992] 2 SCR 122, where the Supreme Court of Canada stated that, when assessing credibility, acourt should “tak[e] into account the strengths and weaknesses which characterize the evidence offered in the particular case” (at p 134). [37] As for the “discounted” inconsistencies in the complainant’s testimony, the trial judge dealt with them in her reasons.

She found them to be minor and of the type that are to be expected when a witness is relating a series of events that happened over a longperiod. In my view, the trial judge did not err in her assessment of the evidence, and I would therefore not accede to this ground ofappeal. [38] In conclusion, for all of the reasons above, I would dismiss the appeal. CJM I agree: JA I agree: JA