SUPREME COURT OF Nova Scotia
Citation: R v. S. L., 2019 NSSC 409
Date: 20190925
Docket: CRH 476672
Registry: Halifax
Between:
Her Majesty the Queen
v.
S. L.
Defendant
Restriction on Publication: 486.4; 486.5; 539
|
Judge: |
The Honourable Justice Patrick J. Murray |
|
Heard: |
June 24, 25, 26, 27, 2019 in Halifax, Nova Scotia |
|
Written Decision: |
September 25, 2019; Voir
Dire – Collateral Fact |
|
|
|
|
Counsel: |
Alicia Kennedy and Stacey Gerrard for the Crown Tom Singleton and Leora Lawson for the Defendant, S. L. |
Section 486.4 - Order restricting publication — sexual offences
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
Mandatory order on application
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
Child pornography
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
Limitation
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.
Order restricting publication — victims and witnesses
486.5 (1) Unless an
order is made under section 486.4, on application of the prosecutor in respect
of a victim or a witness, or on application of a victim or a witness, a judge
or justice may make an order directing that any information that could identify
the victim or witness shall not be published in any document or broadcast or
transmitted in any way if the judge or justice is of the opinion that the order
is in the interest of the proper administration of justice.
Justice system
participants
(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
Offences
(2.1) The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12 or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
Limitation
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
Application and notice
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
Grounds
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
Hearing may be held
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
Factors to be considered
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
Conditions
(8) An order may be subject to any conditions that the judge or justice thinks fit.
Publication prohibited
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.
Order restricting publication of evidence taken at preliminary inquiry
539 (1) Prior to
the commencement of the taking of evidence at a preliminary inquiry, the justice
holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused,
make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.
Accused to be informed of
right to apply for order
(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).
Failure to comply with
order
(3) Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
(4) [Repealed, 2005, c. 32, s. 18]
By the Court:
Introduction
[1] This is my decision on a voir dire to determine the admissibility of evidence. The Defence proposes to put evidence of an audio recording to the Complainant in cross-examination. The evidence is of a conversation between the Complainant and the Accused in which a division of marital assets is being discussed. The Defence alleges that the recording is relevant on the issue of motive to fabricate.
[2] The proposed evidence has been transcribed and is included at Tab 1 of the Defence brief, and is produced as an Exhibit to the affidavit of the Accused, Mr. L., submitted at the voir dire.
Crown’s Position
[3] The Crown’s position is that the proposed evidence is not relevant to an issue at trial and is therefore, not admissible under the collateral fact rule.
[4] That rule states that extrinsic evidence is not admissible to prove a collateral fact. A collateral fact is one that bears no relation to an issue at trial. The Crown submits that admission of the evidence is sought solely to test credibility of the Complainant on a collateral fact, and there is no basis beyond that as the reason for its admission.
[5] Specifically, in regard to this proposed evidence, the Crown submits that a discussion about a division of matrimonial property is not relevant to an issue before the Court.
[6] More to the point, the Crown says it has not been established there is any contradiction by the witness. Each time she has answered that there were such conversations. She did not deny the conversation, says the Crown.
[7] The Crown says in addition that the issue of motive to fabricate is not made out on the excerpt of the conversation provided.
[8] The Crown therefore submits that the answer of the Complainant is final and must be accepted without allowing the Defence to challenge or contradict the Complainant’s evidence.
Defence Position
[9] The Defence position is that motive to lie is clearly an issue that is relevant in this trial and in fact is central to the theory of the Defence.
[10] This line of questioning is important to the Accused and his right to make full answer and defence. The proposed evidence is not collateral to the issues at trial, but is instead relevant to the charge of sexual assault against him.
[11] The Defence argues that conversations between the Complainant and the Accused explain the nature of their relationship and what was occurring within that relationship at the relevant time. They maintain that the Complainant has a motive to fabricate her testimony. They wish to have the opportunity to explore this on cross examination.
[12] As far as the Defence is concerned the proposed evidence is not collateral. On the contrary, they submit it is entirely relevant and goes directly to the nature of the allegations, and the reason they have arisen.
Analysis
[13] The Collateral Fact Rule is summarized in Watts Manual of Criminal Evidence as follows:
The collateral facts or collateral issues rule prohibits the introduction of evidence for the sole purpose of contradicting a witness' testimony concerning a collateral fact. The rule seeks to avoid confusion and proliferation of issues, wasting of time and introduction of evidence of negligble assistance to the trier of fact in determining the real issues of the case. It endeavours to ensure that the sideshow does not take over the circus. In general, matters that relate wholly and exclusively to the credibility of a non-accused witness are collateral, hence beyond the reach of contradictory evidence.
A collateral fact is one that is not connected with the issue in the case. It is one that the party would not be entitled to prove as part of its case, because it lacks relevance or connection to it. A collateral fact, in other words, is one that is neither
i. material; nor
ii. relevant to a material fact.
If the answer of a witness that a party seeks to contradict, is a matter that the opponent could prove in evidence as part of its case, independent of the contradiction, the matter is not collateral. Contradictory evidence may be elicited.
If the answer of a witness that a party seeks to contradict, is a matter that the opponent would not be entitled to prove in evidence, independent of the contradiction, the matter is collateral. Contradictory proof is not permitted.
The several exceptions to the collateral facts rule include and permit:
i. proof of bias, interest or corruption denied by the witness;
ii. proof of a prior inconsistent statement not admitted by the witness;
iii. proof of a prior conviction not admitted by the witness;
iv. disproof of a denial of a reputation for lying or untruthfulness; and
v. disproof of a denial of a physical or mental defect relating to the capacity of likelihood of the witness telling the truth.
[14] The rationale behind the rule is that trials will be delayed and protracted, by such evidence, while adding to confusion and making trials less efficient.
[15] The Defence has in its submission provided the context, stating this evidence stemmed from a heated argument between the Complainant and the Accused.
[16] The Crown has argued that the precise amount of the family’s assets is not a material question before the court. It relies on the case of R v. A.C., 2018 ONCA 333, where the Ontario Court of Appeal rejected the appellant’s argument that the trial judge misapplied the collateral fact rule, in prohibiting defence counsel from asking further questions concerning the complainant’s (N. L.) participation in letters written about the accused, in an attempt to undermine her credibility. The court of appeal rejected this ground of appeal on the basis that evidence of N.L.’s participation would have provided negligible additional assistance to the jury.
[17] The Crown here refers to paragraph 50 of A.C. which states, “the collateral fact rule is generally understood to prevent contradictory evidence on issues that relate solely to a witness’ credibility on a collateral issue.” Much was said in that case however, about the scope of cross-examination and probative value being weighed in relation to prejudicial effect. (See paragraphs 48, 49)
[18] The Crown’s position is that there is no denial by the Complainant in her evidence. Whether or not there is a clear requirement for a denial, the rule is couched in terms of the ability to contradict the witness. That said, whether or not the Complainant expressly denied it (the conversation), she did not clearly admit to it either, stating “ it’s probably possible”. If the evidence is not collateral, of course, the denial or non-denial is not relevant.
[19] The Defence has submitted caselaw in support its position including several paragraphs from A.C. in stating that the collateral fact rule does not operate to confine the scope of what is otherwise proper cross-examination, and further, that cross examination is not without limits and can be limited if the questioning is abusive, of little or no relevance or without probative value.
[20] The crux of the Defence argument here however is based squarely on motive to fabricate being an essential issue. In R v. G.P., [1996] O.J. No. 4286, relied upon by the Defence, the Ontario Court of Appeal held that reply evidence concerning motive to fabricate could not be collateral, and therefore its admission did not offend the collateral fact rule.
[21] Similarly it is the Defence’s submission that the audio recording here is not collateral and does not offend the Rule. Instead, it is central to their theory.
Decision
[22] In my view, admitting this evidence is not permitting “the sideshow to take over the circus”, nor would excluding the evidence serve the purpose of the collateral fact rule.
[23] I am satisfied based on the evidence thus far, that motive to lie is an issue in this case. The cautioned statement of the Accused contains evidence that would support that finding. Evidence that might go to this issue must be seriously considered before it is deemed inadmissible.
[24] The Crown submits this is not a matter in involving a division of assets in family court. Respectfully, this argument is too simplistic as applied to this case. While a discussion about marital assets may be considered collateral on its face, when placed in the proper context it is a substantive issue.
[25] The theory of the Defence is that the Complainant is making a false allegation and that her motive is to interfere with the Accused’s entitlement to, among other things, marital assets.
[26] Further, if the test is whether the evidence would be permitted to be introduced in direct, that has in a sense already occurred. There are numerous references in the Accused's statement to the Complainant's intention to achieve a certain result on a matrimonial division and to doing whatever she can, to achieve that end. The charge against him, he says, was not unexpected.
[27] Thus, what may seem like an attempt by the Accused to distract from the main issue, the charge of sexual assault against him, is an integral part of the Defence’s theory. In the circumstances, he should be given the opportunity to fully defend this allegation without his ability to cross-examine or to pursue his defence being restricted.
[28] For the Defence, credibility and motive to lie are not a sideshow, they are part of the main event.
[29] I therefore find that the proposed evidence is not collateral and does not offend the collateral fact rule.
[30] Given my finding that it is not collateral, I need not rule on whether there was denial of the conversation. Accordingly, I am dismissing the Crown’s objection and will allow the evidence to be admitted.
[31] In my view this evidence may be put to the Complainant as requested by the Defence.
Conclusion
[32] The proposed evidence involves more than a discussion on a division of matrimonial assets. In the end, I am satisfied the collateral fact rule does not apply as the matter at issue is not collateral.
[33] In the result the Crown’s objection to the proposed evidence is dismissed.
Murray, J.