The Court of Appeal has granted a retrial to a man accused of committing sexual interference against his stepdaughter because of an “ill-advised” cross-examination by a London, Ont. Crown attorney.
In R. v. R.J., the court determined that the trial was unfair as the Crown inappropriately asked the defendant, R.J., about his six-month absence from the province after he was arrested and charged.
The Crown and defence counsel had already agreed that R.J’s post-arrest conduct would be off limits at trial unless the defendant raised the issues himself.
“In the end, the jury heard evidence that it should not have heard that may well have had a negative impact on the appellant’s credibility,” said the decision rendered by Court of Appeal Justices David Doherty, William Hourigan and Lois Roberts.
“In a case turning entirely on credibility assessment, the appellant has demonstrated the requisite prejudice resulting in a miscarriage of justice.”
The decision comes just a few months after the Court of Appeal declared a new trial in R. v. Dhaliwal, after a Brampton, Ont.-based Crown’s conduct at trial was “sufficiently predjudicial.”
Lawyers say the R. vs R.J. decision raises similar questions about Crown conduct.
“Crown counsel have an obligation not simply to secure convictions but to ensure that justice is done, and so they are rightly held to a high standard of conduct,” said Cate Martell, the lawyer who represented R.J. on the appeal.
“I think this decision and the Court of Appeal’s recent decision in Dhaliwal remind us that Crown counsel are going to be held accountable by the courts when they make errors in judgment that have the effect of depriving the accused of a fair trial.”
During the jury trial, the Crown asked R.J.: “And did you want to clear these charges up as soon as possible?”
In response to this, R.J. stated, “No. I left the jurisdiction, but I came all the way across Canada and turned myself in to the London Police station on my own accord,” according to the decision.
The Crown then asked for the jury to be excused while he received permission from the trial judge, Superior Court Justice Johanne Morissette, that he be allowed to ask R.J. about his post-arrest absence.
Morissette gave the Crown permission to do so, saying R.J. could have responded with: “Yes, I wanted to,” and by giving the answer he did, he put the matters into issue.
The Crown then cross-examined R.J. about the period of time after his arrest, which included the fact that he failed to attend a preliminary court date. In closing, the Crown brought up the fact that R.J. left the province for six months.
“My friend stated, in his argument, in his closing argument that Mr. J. is innocent, he was honest and had nothing to hide,” the Crown said, according to the decision.
“Well, he hid himself for six months. R.J.’s version of what happened simply makes no sense at all.”
Morissette told the jury that finding R.J. guilty based on his post-arrest conduct would be wrong, but he did not caution the jury about using that information to assess his credibility, the decision said.
The Court of Appeal determined that the Crown’s original question “opened the door” to R.J.’s response concerning his post-arrest conduct and resulted in unfairness.
“Crown counsel should not have asked the question in front of the jury without first vetting the question with the trial judge and giving counsel for the defence an opportunity to raise the propriety of the question,” the court’s decision said.
The court determined that the evidence generated by the Crown’s question created a high risk of prejudice as the trial turned on R.J.’s credibility.
R.J. was convicted in 2014 and sentenced to three years in prison.
In his factum, the Crown attorney on the appeal, Brock Jones, said the fact that R.J.'s post-arrest conduct was brought up was no basis for an appeal as the defendant himself admitted the evidence.
Anthony Moustacalis, president of the Criminal Lawyers’ Association, says the Crown was not to blame, as the trial judge should not have let the questioning go ahead.
“The trial judge got it wrong,” he says. “Once you get a ruling in your favour, then the argument in closing naturally flows.”
The Ministry of the Attorney General did not provide comment.
