R. v. S.G.
Her Majesty the Queen, and
 O.J. No. 2185
74 W.C.B. (2d) 543
Ontario Superior Court of Justice
N.J. Spies J.
Heard: April 23, 2007.
Oral judgment: April 23, 2007.
Criminal law — Offences — Sexual offences — Rape or sexual assault — In this criminal trial for sexual assault, the court exercised its discretion to call a witness after the Crown refused to call her despite representing to the jury and the defence that it intended to do so — The defence had been taken by surprise and unfairness to the defence had been created because of the reasonable reliance on the Crown’s original intention to call the mother and the Crown’s sudden change in that position.
Criminal law — Evidence — Witnesses — Compellability — In this criminal trial for sexual assault, the court exercised its discretion to call a witness after the Crown refused to call her despite representing to the jury and the defence that it intended to do so — The defence had been taken by surprise and unfairness to the defence had been created because of the reasonable reliance on the Crown’s original intention to call the mother and the Crown’s sudden change in that position.
In the context of a criminal trial for sexual assault, the Crown refused to call the complainant’s mother despite representing to the jury and the defence that she intended to do so, and the defence took the position that the Crown ought to be compelled to call the witness — HELD: The court exercised its discretion to call the witness; the Crown would be permitted to ask questions in chief, and the defence would have its usual right to cross-examine — The defence had been taken by surprise and unfairness to the defence had been created because of the reasonable reliance on the Crown’s original intention to call the mother and the Crown’s sudden change in that position — In order to ensure a fair trial, the jury ought to hear her evidence.
Ms. J. Harowitz, Counsel for the Crown.
Ms. J. Penman, Counsel for the Defendant.
RULING RE COMPELLING THE CROWN
TO CALL A WITNESS
1 N.J. SPIES J. (orally):– Crown counsel advised the jury in her opening statement that they might hear from the complainant’s mother. The Crown submits that she did not explicitly indicate that she would be called. In her opening, Ms. Harowitz stated:
I will call M as the first witness in this trial. I expect you will also hear from her mother.
2 She went on to say:
I remind you that neither M nor her mother are on trial here. You may or may not approve of the decisions they made, but they are not on trial.
3 In my view, the jury was left with the distinct impression that the Crown would also call the complainant’s mother as a witness.
4 Ms. Harowitz told Ms. Penman immediately before the commencement of the trial that the Crown intended to call the complainant’s mother as a witness. She did not qualify this in any way. Specifically, she did not suggest that calling the complainant’s mother depended on how well the complainant did as a witness, or that she might change her mind.
5 Although the Crown did not give an undertaking to call the mother, as I will explain, Ms. Penman relied on this representation. In my view, given the conduct of Ms. Harowitz, Ms. Penman was entitled to rely on that representation. It was clear that Crown counsel maintained this view after the complainant gave and finished her evidence, as Ms. Harowitz had a Spanish interpreter available to act as an interpreter for the mother, waiting in court on Wednesday and Thursday of last week. In fact, at the end of the day on Thursday, after the complainant’s evidence was complete and in the absence of the jury, the timing of the mother’s evidence was discussed as there was a concern that her evidence would not be completed Friday afternoon when the case was scheduled to resume.
6 Ms. Harowitz advised Ms. Penman by e-mail mid morning last Friday that although her initial intention was to call the complainant’s mother as the second witness, after further consideration she had decided not to call the mother as part of the Crown’s case. She advised that she would make the complainant’s mother available to the defence if Ms. Penman wished to call her. Needless to say, Ms. Penman was very surprised and took objection to this.
7 When this issue was addressed in court, Ms. Penman took the position that I should compel the Crown to call the complainant’s mother as its witness. As the jury was waiting and as the Crown had asked Tracy Horowitz to attend to give evidence – a witness who, in my view, was brought to court merely as a filler to try and deflect the controversy raised by the change in the Crown’s position – that witness was called briefly.
8 After hearing from Tracey Horowitz, I discharged the jury until this morning. At that time I did not tell the jury anything of what had happened.
9 When I asked Ms. Horowitz on Friday why she had decided not to call the mother, she stated that the complainant gave her evidence better than expected. She described the mother’s evidence as both helpful and hurtful, and stated that she had only intended to call the mother if necessary, to corroborate the fact that the complainant slept in bed with her mother and Salvadore G., and that he hit the complainant. The defence, however, had never been told that the decision to call the mother depended on how the complainant did in the witness box, and therefore there is no doubt that Ms. Penman was taken by surprise.
10 As there was not enough time to argue this issue and ensure that the defence be in a position to decide whether or not to call the complainant’s mother as a witness this morning, if I decided not to require the Crown to do so, I decided that the time remaining on Friday afternoon would best be spent by Ms. Penman meeting with the complainant’s mother with the assistance of the interpreter, who very graciously agreed to make his services available after court hours without payment.
11 I pause to thank him again for volunteering his time in this way, although I note he’s not our interpreter today, but nevertheless, proper thanks are due.
12 Counsel provided submissions to me on this issue by e-mail over the weekend. Those submissions have been marked as a lettered exhibit, along with the e-mail from Ms. Harowitz sent last Friday morning.
13 I accept the submission of Ms. Penman, that she and her client relied on the representation by the Crown that the complainant’s mother would be called by the Crown. The defence made tactical decisions. The issue of identification by the complainant was admitted to me in the absence of the jury, knowing that her mother would easily be able to identify Salvadore G. Much of the cross-examination of the complainant was structured around the mother being called as a witness. Specifically, a lot of the cross-examination was directed at impeaching the complainant based on inconsistencies with her mother’s anticipated evidence based on her statement.
14 In her written submissions, Ms. Harowitz amplified her position as to why she decided not to call the complainant’s mother. She stated in part that on review of the whole of the complainant’s testimony, it was decided that the complainant’s mother’s evidence was no longer needed for the Crown to meet its burden. She states that the mother has contextual evidence with respect to the sexual assault and sexual interference charges, and confirmatory evidence of the assault charge which the Crown is willing to forgo, and that the Crown is not hiding any evidence.
15 I have read the statement given by the complainant’s mother to Officer Lee. Parts are difficult to understand because she did not have an interpreter. I agree with the assessment of the Crown that her evidence is helpful to both the Crown and the defence. Speaking generally, in my view the evidence of the mother does confirm that the accused hit the complainant and that the complainant complained to her grandmother that the accused touched her, but I would say overall the evidence may be more helpful to the defence in that it does not corroborate the evidence of the complainant with respect to the sexual assaults themselves, and there are many material differences with the complainant’s evidence which could undermine the credibility of the complainant if the jury became aware of this. In addition, the evidence of the mother would advance the defence theory that the complainant had a motive to fabricate these allegations.
16 I conclude that the defence has been taken by surprise and that unfairness to the defence has been created because of the reasonable reliance on the Crown’s original intention to call the mother and the Crown’s sudden change in that position. The issue is how can this remedied?
17 The position of Ms. Penman is that in these circumstances I should compel the Crown to call the complainant’s mother as its witness. She concedes that the Crown has a fair deal of discretion in deciding how to call its case, and that the only restriction on the virtually untrammelled right of the Crown to call its case is if the decision is made for an “oblique motive”. See R. v. Cook,  1 S.C.R. 1113.
18 Oblique motive is not well defined in the cases but it is akin to the considerations of an abuse of process. The onus in this regard is on the defence. Ms. Penman submits that the Crown is intentionally putting forward more fragile evidence from the complainant when there is material credible evidence available that does not suffer from these frailties. Put simply, she submits that the Crown does not wish to call the complainant’s mother because she is not helpful to the Crown’s case, although she is a solid, material witness.
19 In R. v. Jolivet,  1 S.C.R 751, the Supreme Court of Canada considered this issue albeit on different facts. In that case as here, the Crown resiled from a position plainly stated, but the trial judge accepted the explanation that the decision not to call the witness was because the Crown believed that the witness would not be truthful. The court also found that in that case the defence was not unhappy to see the witness fail to materialize, as the witness was not expected to give exculpatory evidence and that the defence would not want the witness called for the purpose of a defence cross-examination.
20 On the issue of “oblique motive”, the court stated that apart from the Crown’s concern about the witness’ truthfulness, Crown counsel may have reasoned that the evidence of their main witness had gone into the record better than expected, and at that stage had no desire to expose it to inconsistent statements emanating from the proposed witness. The court held that:
If this was a concern that entered into the exercise by Crown counsel of his discretion, it is a concern shared by any prudent counsel faced with running his case effectively in an adversarial system. It is not the duty of the Crown to bend its efforts to provide the defence with the opportunity to develop and exploit potential conflicts in the prosecution’s testimony. This is the stuff of everyday trial tactics and hardly rises to the level of an “oblique motive”. Crown counsel is entitled to have a trial strategy and to modify it as the trial unfolds, provided that the modification does not result in unfairness to the accused. (Paragraph 21)
21 Although this statement was made in a case where the concern in not calling the witness was because the witness would not be truthful, which is not our case, the proposition is set out in general terms and is not so qualified.
22 Based on the Jolivet decision and, in particular, this passage, although I disapprove of the Crown’s conduct in this case, I am unable to find support for the proposition advanced by the defence, that I can compel the Crown to call the complainant’s mother as a witness. I have also considered whether or not the court, in Jolivet, would have reached a different conclusion if the evidence of the witness the Crown no longer intended to call was substantially exculpatory as is the case here.
23 The history of the Crown’s obligation in this regard is reviewed in the earlier Supreme Court of Canada decision of R. v. Cook. The argument in this case cannot succeed on the basis that the Crown is “hiding” evidence. In that case, the court concluded that any rationale compelling the Crown to call witnesses based on the need to bring all material facts forward was extinguished by developments in the law of disclosure (at paragraph 36). In fact, in that case the court ruled that the Crown did not have to call the victim of the attack as a witness.
24 I have come to the conclusion, then, that although I agree with Ms. Penman that it is difficult to determine what could amount to an “oblique motive”, the conduct of the Crown in this case does not reach that level. I pause to comment, however, that Ms. Harowitz should always remember that the Crown does not win or lose a criminal trial, even though the proceedings follow the adversarial model. The purpose of a criminal prosecution is not to obtain a conviction; it is to lay before the jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime (R. v. Boucher (1955) 110 C.C.C. 263 at paragraphs 23-24).
25 In this regard, I agree with the observation of the British Columbia Court of Appeal in R. v. MercerJolivet decision, but I
 B.C.J. No. 524, in a similar case, that “the Crown’s tactic was arguably within bounds” based on the
… question the wisdom of not putting before the court evidence which might have an important bearing on the crime. (Paragraph 60)
26 There is no reason to doubt that the evidence of the complainant’s mother would not be truthful and reliable, and if the complainant’s mother is called, evidence that will assist the jury in arriving at a just and proper verdict will be heard.
27 Having concluded that I do not have the power on these facts to compel the Crown to call this witness, I seriously considered declaring a mistrial although neither counsel requested that. I rejected this as a solution only because it would mean that the complainant, who is barely sixteen years of age, would have to give her evidence all over again before a new jury. I have no doubt that this would be difficult and, given what Ms. Harowitz told me in terms of her concerns about the complainant’s willingness to testify, she may even have decided not to testify again. I am surprised that Ms. Harowitz did not take this into account when she decided to maintain her position not to call the complainant’s mother as a witness, as the defence certainly could have reasonably asked that I declare a mistrial in these circumstances.
28 Ms. Penman, however, has asked that in the alternative, that she be permitted wide latitude in leading the evidence of the complainant’s mother if she decides to call her as part of the defence case, similar to the latitude often given to defence counsel when they are forced to call police officers on Charter motions. I had already indicated to Ms. Penman that I would be receptive to this if she chose to call the mother as a witness. Obviously the complainant’s mother is an exceptionally difficult witness to be called by the defence. She is the mother of the complainant. Her daughter still lives with her. She has stated to the police that she wants to support her daughter. Some of her evidence incriminates the accused. As Ms. Penman submits, it is difficult to imagine the trauma to the complainant and the mother of her being forced to testify for the defence.
29 I have decided, however, that this is not a proper remedy in this case. If I force the defence to decide whether or not to call the complainant’s mother, and assuming that Ms. Penman chooses to do so, she would automatically lose her right to address the jury last, since she has not yet been called upon to decide whether or not to call Salvadore G. as a witness. Furthermore, unless I ordered otherwise, Ms. Harowitz would be permitted to cross-examine a witness friendly to the Crown’s position.
30 As set out by the court in R. v. Cook, the fact that the defence will automatically lose its right to address the jury last is a factor I can weigh in deciding whether to exercise my discretion to call this witness myself (paragraphs 46-47). This was considered in more detail by the Supreme Court of Canada in R. v. Finta,  1 S.C.R. 701.
31 I also note that in R. v. Cook, the court noted that conduct of the Crown falling short of abuse could be a factor in influencing me to exercise my discretion to call the complainant’s mother myself. I also note that the court in Cook stated, referencing Finta, that this discretion
… should only be exercised rarely and then with extreme care so as not to interfere with the adversarial nature of the trial procedure or prejudice to the accused. (Paragraphs 63 and 66)
32 In this case there could be no prejudice to the accused by my calling the complainant’s mother as Ms. Penman has asked that I compel the Crown to do so.
33 In determining whether to exercise my discretion to call this witness, as I understand it, the guiding principle is that in doing so, it must be “essential … in order to do justice in this case.” (R. v. Cook at paragraph 63)
34 In my view, the evidence of the complainant’s mother, which I have a sense of based on her statement to the police, meets this test. In order to ensure a fair trial, the jury should hear this evidence. The liberty of Salvadore G. is at stake. Since the Crown has refused to call the complainant’s mother, notwithstanding her representation to the jury and the defence that she intended to do so, I shall exercise my discretion to do so. Proceeding in this way will not prejudice the Crown as there can be no prejudice to the extent that the Crown should not be seen to suppress evidence favourable to the accused. Proceeding in this way will address the unfairness caused by the reliance by the defence on the representation by the Crown to call this witness. It will also not upset the usual protocol in an adversarial proceeding given this is a witness whose allegiance is to the Crown.
35 For these reasons, the jury will be told that Ms. Harowitz has decided not to call the complainant’s mother as a witness but that as she is here, and as the jury was told that she would be a witness, that I have asked her to give evidence. The Crown will be permitted to ask questions in-chief if she wishes to do so, and the defence will have its usual right to cross-examine the witness. I will permit very limited re-examination by the Crown only if Ms. Harowitz chooses to ask questions of the witness, and then only to clarify evidence given on the same topic in cross-examination.
36 Now that you have heard my ruling, Ms. Harowitz, I am prepared to give you fifteen minutes to consider your position and to consult with a senior Crown if you wish to do so. If in light of my ruling you decide that you would like to call the complainant’s mother after all as your witness, then I will permit you to do so. If you do not wish any time to consider the matter, then we will proceed in the manner in which I have ruled.