



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Dupuis, 2020 ONCA 807

DATE: 20201216

DOCKET: C59554

Simmons, van Rensburg and
    Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kaila Dupuis

Appellant

Lisa Jørgensen, for the appellant

Christopher Webb, for the respondent

Heard: June 15, 2020 by video conference

On appeal from the conviction entered on
    April 11, 2014 by Justice Maureen D. Forestell of the Superior Court of Justice,
    sitting with a jury.

van Rensburg J.A.:


A.

OVERVIEW

[1]

The appellant was charged with second degree
    murder in the death of her former boyfriend, Jason Paglia. He died from a
    single stab wound to the chest. After a trial by judge and jury, the appellant
    was acquitted of murder, but convicted of the included offence of manslaughter.
    She appeals her conviction.

[2]

The Crowns theory at trial was that the
    appellant stabbed the deceased inside her apartment out of anger when he tried
    to end their relationship. The appellant asserted that her former boyfriend was
    the aggressor, that he came at her with knives while they argued, and that he
    was stabbed by a knife he was holding when, in self-defence, she had forcefully
    pushed him out the door of her apartment.

[3]

An important witness at trial was the
    appellants neighbour, Tina Delina, who testified about what she heard and saw
    at the door to the appellants apartment. Ms. Delina was called as a
    prosecution witness. The defence relied on this witnesss evidence as
    confirming certain aspects of the appellants account of what happened.

[4]

The appellants first ground of appeal has to do
    with the trial Crowns questioning of Ms. Delina with reference to an apparent
    inconsistent statement she made in the preliminary inquiry, the Crowns use of the
    inconsistency in closing submissions to impeach Ms. Delina, and the trial
    judges treatment of the evidence in the jury charge.

[5]

I agree with the appellants submission that the
    elicitation, use, and treatment of this evidence rendered her trial unfair to
    the extent that the appeal must be allowed, and a new trial directed on the
    charge of manslaughter.

[6]

Briefly, the appellants trial was rendered
    unfair when the trial Crown cross-examined her own witness using alleged inconsistencies
    from the witnesss preliminary inquiry evidence, without complying with the
    requirements of s. 9(2) of the
Canada Evidence Act
, R.S.C. 1985,
    c. C-5 (the 
CEA
), and then used the alleged inconsistencies to
    attack the credibility and reliability of the witnesss evidence, in particular
    the parts that were supportive of the appellants account. Ms. Delina was a key
    witness. Her evidence, had it been accepted, served to corroborate aspects of
    the appellants account of how the stabbing of the deceased occurred, and was
    central to the appellants defence of self-defence. Instead of instructing the
    jury to disregard the improperly elicited evidence, the trial judge permitted
    Crown counsel to use the fruits of the improper cross-examination for impeachment
    purposes, and then referred to the potential inconsistencies in her jury charge,
    inviting the jury to consider them in their assessment of Ms. Delinas
    evidence. These errors may well have affected the jurys assessment of the
    appellants credibility, which was the central issue at trial.

[7]

This is sufficient to decide the appeal. The
    appellant raised other grounds of appeal, having to do with the trial judges
    failure to adequately correct various other alleged legal and factual errors
    made by Crown counsel in her closing address.
[1]
One
    of the other grounds was that the trial Crown improperly invited the jury to
    use prejudicial stereotypes about the expected behaviour of victims of domestic
    abuse to reject the appellants evidence that, having previously been assaulted
    by the deceased, she was acting in self-defence when he was stabbed, as well as
    to conclude that she was not a credible witness. While it is unnecessary to
    address this ground of appeal, I will offer a brief comment on this issue at
    the conclusion of these reasons.

B.

tHE CROWN AND DEFENCE THEORIES AT TRIAL

[8]

The appellant and Mr. Paglia had an on-and-off romantic
    relationship. During the evening of December 2, 2011, Mr. Paglia visited the
    appellant in her apartment. It was undisputed at trial that the two were
    arguing, that Mr. Paglia left the apartment at least twice, and that by the end
    of the evening, Mr. Paglia had been stabbed in the chest. After being injured,
    Mr. Paglia made his way to the parking garage of the building and his car,
    where he collapsed and later died.

[9]

The Crowns theory was that Mr. Paglia was
    stabbed by the appellant in anger inside the apartment after he tried to end
    their relationship. There was evidence of Mr. Paglias blood in the apartment
    as well as signs of a struggle in the kitchen, including a number of knives scattered
    around.

[10]

The appellant testified that Mr. Paglia had
    attacked her as they argued about her relationship with another man. She said
    that when Mr. Paglia came after her with a knife, she pushed him out the door
    of her apartment and closed the door on him. The appellant testified that she
    only discovered that Mr. Paglia had been injured when he banged on her door a
    few minutes later, asking for her help, and that she let him back into the
    apartment briefly to assist him. She testified that she did not appreciate the
    seriousness of his injury when he walked out of her apartment. She had followed
    Mr. Paglia to the parking garage where she found him sitting in his vehicle,
    and she stayed there until the first responders arrived.

[11]

The defence theory was that Mr. Paglia must have
    stabbed himself accidentally when the appellant forcefully closed the apartment
    door on him. Dr. Pollanen, a forensic pathologist called by the Crown,
    testified about the nature of Mr. Paglias injury. He acknowledged that the
    injury could have happened in a number of ways, and he accepted that the
    defences theory was one possibility.

C.

THE IMPUGNED EVIDENCE AND ITS TREATMENT AT TRIAL

[12]

I turn now to consider the alleged improper
    cross-examination of a Crown witness and its treatment at trial. This arose
    during the testimony of the appellants next-door neighbour, Ms. Delina, about
    what she heard and saw the night of the incident, and in particular her
    evidence that she heard Mr. Paglia re-enter the appellants apartment after he realized
    that he was injured. In the course of Ms. Delinas examination in chief,
    Crown counsel asked her about an alleged inconsistency between her evidence at
    trial and what she said in the preliminary inquiry.

[13]

The appellants position is that Ms. Delina was cross-examined
    by the Crown without resort to s. 9(2) of the
CEA
, and that, instead
    of correcting the situation, the trial judge permitted Crown counsel to use the
    inconsistency for impeachment purposes. This resulted in prejudice to the
    appellant because Ms. Delinas evidence supported, in material respects, the
    appellants own version of the events. Because of the importance of Ms.
    Delinas evidence, this rendered the trial unfair.

[14]

The respondents position is that, to the extent
    that the trial Crown elicited an inconsistency between Ms. Delinas evidence
    and her prior testimony, this occurred while the Crown was attempting
    (unsuccessfully and imperfectly) to refresh Ms. Delinas memory, and not for
    the purpose of impeaching the witness without having brought a s. 9(2)
    application. According to the respondent, it was appropriate for the trial
    judge to permit the Crown to point out inconsistencies in Ms. Delinas evidence
    in her closing submissions and then to instruct the jury in the charge about how
    they should approach the inconsistencies. In any event, had the Crown brought a
    s. 9(2) application, it would have been successful. As such, the failure to
    strictly comply with the procedural requirements did not render the appellants
    trial unfair.

[15]

I will first set out the three instances in
    which the Crown put prior statements to Ms. Delina, including the impugned
    interaction that is the subject of this ground of appeal. I will then review
    how that evidence was addressed at the pre-charge conference, when the impeachment
    purpose of the Crowns examination on the prior statement became apparent, and
    defence counsel objected to such use. Finally, I will turn to the Crowns
    closing submissions in which she used the alleged prior inconsistent statement
    to impeach Ms. Delina, and then to the charge to the jury where the trial judge
    referred to the prior statement and invited its consideration as a possible
    inconsistent statement in the assessment of Ms. Delinas credibility.

(1)

The trial Crown examines Ms. Delina with reference to her earlier
    statements

[16]

The day before Ms. Delina testified, the Crown
    had advised the trial judge of the possible need to bring a s. 9(2) application
    with respect to Ms. Delinas evidence, and she had provided the court with
    materials for the application. Just before Ms. Delina was called to testify and
    in the absence of the jury, the Crown told the trial judge that she thought she
    would be able to avoid bringing a s. 9(2) application. Ultimately no s. 9(2)
    application was brought.

[17]

Ms. Delina testified in chief that she had
    called 911 on the evening in question and the 911 call was in evidence. Ms.
    Delina heard banging on the door of the apartment next door and a man yelling [o]pen
    up, open up, something happened to me. Ms. Delina heard the door open and a
    woman scream and say, [g]et out, get out and [o]h my god, oh my god. She
    was uncertain about the timing of the womans statements. At trial, she
    testified that she heard the man inside the appellants apartment after she
    heard the door close.

[18]

Ms. Delinas evidence that she heard the man
    back inside the appellants apartment contradicted the Crowns theory of
    events, which was that the appellant pushed Mr. Paglia out the door after
    stabbing him, and that she never allowed him back into the apartment before he
    made his way down to the parking garage. Instead, this evidence supported the
    appellants account that, after Mr. Paglia had attacked her and she pushed him
    out the door, he returned, injured, and she helped him inside the apartment before
    he left for the parking garage. The fact that he came back inside would, among
    other things, provide an explanation for the presence of Mr. Paglias blood inside
    the apartment.

[19]

On three occasions during Ms. Delinas evidence
    in chief the Crown referred the witness to what she had said in her police
    statement or at the preliminary inquiry. The first two times the Crown
    expressly said that she was refreshing Ms. Delinas memory. The defence did not
    object on any of the three occasions. On the third occasion, the trial judge
    reminded Crown counsel that this was her witness and that she should try not to
    lead.

[20]

Although the evidence elicited on the first two
    occasions of refreshing memory is not challenged on appeal, how this
    developed provides context for what followed, and is relevant to the respondents
    argument that, on the third occasion, the Crown was simply trying to refresh
    the witnesss memory.

[21]

The first time Crown counsel took Ms. Delina to
    an earlier statement was during a series of questions about the sound of the
    mans voice as he asked the person in the apartment to open the door and said
    that something had happened to him. Ms. Delina did not express any trouble
    remembering. She testified that he sounded distraught, like he needed help. Ms.
    Delina said that she could tell that something was wrong with the man by the
    way his voice sounded. She testified that she couldnt tell if he was hurt or
    injured, only that he was in distress. After Ms. Delina gave these
    answers, the Crown provided Ms. Delina with the transcript of her police
    interview [j]ust to refresh [her] memory about how the male sounded and asked
    her to read a passage. In the end, Ms. Delina accepted the Crowns suggestion
    that the man had sounded injured.

[22]

Although there was no foundation to refresh
    memory, the defence did not object to the way the prior statement was put to
    the witness, and the trial judge did not intervene. The evidence that was
    elicited in this way did not materially advance the Crowns case or harm the
    defence case. On both the Crown and defence theories, Mr. Paglia was injured
    when he banged on the appellants door, asking for help.

[23]

The second time Crown counsel took Ms. Delina to
    an earlier statement was when she was asking Ms. Delina about what she heard
    after hearing the female scream. She asked Ms. Delina if she heard anything
    happen to [the apartment] door. Ms. Delina replied [n]o. The Crown
    immediately took Ms. Delina to the transcript of her police interview, without first
    asking whether it would refresh her memory. She directed Ms. Delina to read the
    transcript to herself. The Crown then asked Ms. Delina a series of questions,
    in the course of which Ms. Delina stated: I dont know if I said
    slammed [apparently referring to her police interview], but anyways the door
    had closed.
The Crown pursued the point, effectively
    cross-examining Ms. Delina on an apparent inconsistency between what she said
    in her police interview  that the door was slammed  and her evidence at
    trial  that the door was closed or shut.
Defence counsel did not
    object to the Crowns approach, and the trial judge did not intervene.

[24]

On the third occasion, which is the contentious
    one for the purpose of this appeal, the Crown established a significant
    inconsistency between Ms. Delinas evidence at trial  that she heard the man
    enter the apartment  and her evidence at the preliminary inquiry  that she
    did not hear any voices after she heard the apartment door close.

[25]

The Crown began by referring Ms. Delina to her
    saying in the 911 call that [h]es still there. Hes inside the house. The
    Crown asked Ms. Delina whether she was able to tell if the person entered
    inside the apartment, and she responded that she only heard that he went in.
    The Crown asked Ms. Delina to explain what she was basing that on, and Ms.
    Delina testified that, after the woman finished screaming everything toned down,
    she could still hear people in the apartment but the voice went down, and there
    was no yelling or screaming.

[26]

The Crown advised that she would return to this
    area of questioning, which she did soon after. She asked Ms. Delina:

Q. You heard the door shut and then your memory today is about
    hearing that you concluded that he was inside the apartment cause you heard, I
    cant remember what your words were, whispering, sort of a different tone of
    voice?

A. Yeah, the tone of the voice like had gone down.

Although Ms. Delina had not expressed
    any difficulty remembering, the Crown then took the witness directly to her
    evidence from the preliminary inquiry. She gave Ms. Delina a copy of the
    transcript, but did not refer to the fact that she was attempting to refresh her
    memory, and she did not direct the witness to read the passage silently:

Q. All right. So for your purposes and Counsels purposes I
    want to take you to page 21 of your preliminary hearing transcript.



Q. All right, so looking at your preliminary hearing transcript
    from May 1
st
, 2013, you recall being asked a question about after
    you hear the door shut?

A. Yes.

Q. Do you hear anything else?

A. Okay, so I said no voices, meaning like the voice wasnt
    like escalated. Like I heard talking, but it wasnt like  like there was like an
    argument or something. All right. So I dont know. I dont know what to say. I
    said that I didnt hear no voices, meaning like  like in the time that from
    what I heard the difference from in the hallway and then him entering into the
    unit, the tone was different, so.

Q. Okay, so lets  because the jury doesnt have the benefit
    of your transcript

A. Okay.

Q. I want to be very fair

A. Um-hmm.

Q. to you that we understand what your evidence is.

A. Okay.

Q. All right, so what again youre referring to is page 21 of
    your preliminary hearing transcript?

A. Um-hmm.

Q. And the question asked was: After you hear the door shut,
    do you hear anything else?

A. Yes, okay.

Q. And you answered No?

A. Yeah.

Q. And then the question is: No voices? So you see that?

A. Yeah.



Q. So were at the top of page 21, preliminary

A. Yes.

Q. hearing transcript from May 1
st


A. Yeah.

Q. 2013. Youre asked: After you hear the door shut, do you
    hear anything else?

A. Yeah.

Q. Your answer is: No? Correct?

A. Yeah.

Q. Question: No voices?

A. Right.

Q. Answer: No? You agree?

A. Yes, yes.

Q. Question: No screaming?

A. Yes.

Q. Answer: No?

A. Right.

Q. All right. And so when you testified back at the preliminary
    hearing your memory was then you dont hear any voices, correct?

A. Yes.

Q. And you dont hear any screaming?

A. Right.

Q. But I want you.

At this point, the trial judge
    interjected, reminding Crown counsel that this was her witness and examination
    in chief and that she needed to try not to lead. Crown counsel continued with Ms.
    Delina:

Q. But Im just trying to clarify  so your evidence today, and
    I want to be fair about this, is  what is it that youre saying that you heard
    at the door after the door was shut?

A. At that point I just heard a little bit of like talking, but
    I was  Im not sure what the conversation was cause at that point after that
    I know that he had entered I ran to the phone to call 911.

Q. All right.

A. But I didnt hear any screaming or any loud voices after
    that because I was at the phone.

Q. And do you recall whether or not you ever said to the police
    or the court before about hearing voices inside the apartment after the door
    shut?

A. I cant remember.

[27]

Defence counsels cross-examination of Ms.
    Delina was very brief. He did not return to this area. He did not complain
    about the Crowns cross-examination of Ms. Delina either at the time it was
    taking place or after the jury had left for the day.

[28]

I turn now to what happened at the pre-charge
    conference, after the impeachment purpose of the impugned questioning became
    clear, and how the alleged prior inconsistent statements referred to during Ms.
    Delinas examination in chief were used by the Crown, objected to by the
    defence, and then referred to in the charge to the jury.

(2)

The impeachment purpose of the impugned evidence is discussed at the
    pre-charge conference

[29]

The Crowns intention to refer to the impugned
    evidence to impeach her own witness became evident during the pre-charge
    conference, when she asked the trial judge to refer in her jury charge to the
    inconsistencies between Ms. Delinas evidence at trial and her evidence at the
    preliminary inquiry. Crown counsel also advised that she intended to refer to
    the inconsistencies in her own closing submissions.

[30]

A lengthy exchange took place. Initially, the
    trial judge seemed surprised by the Crowns proposed use of the statement. She indicated
    that she was not entirely sure how the Crown could impeach her own witness that
    way. Although the Crown had taken Ms. Delina to the prior statement, this did
    not refresh her memory, as she did not agree with what she had said there. The
    trial judge reminded the Crown that there had been no application to
    cross-examine Ms. Delina, and that she had not ruled on inconsistencies or
    permitted cross-examination.

[31]

Defence counsel objected to the trial judge
    referring in her charge to the inconsistencies in Ms. Delinas evidence that
    were brought out by Crown counsel by reference to her earlier statement, and to
    Crown counsel relying on this in her closing submissions. He argued that
    because the Crown failed to bring a s. 9(2) application, her attempt at
    refreshing memory by reference to a prior statement that was not adopted
    amounted to no evidence, and that it would be wrong to highlight the alleged
    inconsistency in the charge to the jury. Defence counsel pointed out that a s.
    9(2) application should have been brought if the Crown had wanted to make an
    issue of Ms. Delinas credibility when she testified that she heard voices after
    the door shut. He argued that, to now put the Defence in a position where the
    Crowns going to call their own witness uncredible on a point thats very
    important to the Defence without having properly suggested it at the time would
    be [a] huge prejudice to the Defence. He stressed that this was a very
    important point because Ms. Delinas evidence that the man, presumably Mr. Paglia,
    went inside the apartment was consistent with the appellants account of events.

[32]

The Crowns response was that she had not
    brought a s. 9(2) application because the evidence came out to her satisfaction
    without the need for one. She argued that, since there was no objection at the
    time, it would be prejudicial to the Crown to pretend that the evidence did not
    come out as it did or to prevent the jury from considering it.

[33]

Ultimately, the trial judge decided that the
    jury needed to be told how to deal with the evidence. She proposed that her
    charge would review the inconsistencies and any explanation Ms. Delina may have
    given, and, at the request of the defence, that she would confirm that the
    prior statement was not evidence unless the jury found the witness adopted it.

(3)

The Crown uses the impugned evidence for impeachment purposes in her
    closing submissions and defence counsel objects

[34]

The importance of Ms. Delinas evidence was
    highlighted in the defences closing submissions. He said that Ms. Delinas
    evidence that the appellant sounded shocked and did not expect what she saw
    when she opened the door, could be the most important piece of evidence in
    this case because it sheds light on what [the appellant] did, and what she
    understood happened  namely, that while she was defending herself and slammed
    the door, the knife plunged into Mr. Paglia. Defence counsel asked the
    jury to accept the evidence of Ms. Delina that Mr. Paglia had entered the
    apartment, stressing again, it may be the most important evidence in this
    case, and that it was contrary to the Crowns theory because it was
    inconsistent with someone intentionally stabbing somebody and then sending them
    away to die on their own without assistance. With respect to the alleged
    inconsistency, counsel told the jury that, although the Crown had challenged
    Ms. Delina on whether she heard people inside the apartment, she was unshaken.
    Later, in reviewing the evidence which corroborated the appellants account,
    counsel again referred to Ms. Delinas evidence that Mr. Paglia entered the
    apartment.

[35]

In her closing submissions, the Crown argued
    that while the jury could accept some of what Ms. Delina said, they should
    exercise caution in what they chose to accept. She advocated a cautious
    approach because [Ms. Delinas] account had some concerning aspects of
    unreliability. The Crown told the jury that they should be very concerned
    about accepting Ms. Delinas evidence that she heard Mr. Paglia enter the
    apartment, and she made multiple references to what Ms. Delina said during the
    preliminary inquiry:

[Ms. Delina] testified in-chief that she immediately called 911
    after the exchange at the door. But she also testified that she did not hear
    anything from the apartment when she was on the phone with 911. She also
    testified that she could hear voices from inside the apartment.
However,
    youll recall that when her memory was refreshed with her preliminary hearing
    transcript from May 2013 about what she heard after the apartment door was
    closed, she testified as follows, question from me, you were asked  this is
    referring to the preliminary hearing, after you hear the door shut do you hear
    anything else? She responds to you at trial, Yeah. Question, Your answer is
    no, referring to what she said at the preliminary hearing. I said, Correct?
    and she answered, Yes. Question, No voices? Answer, Right. Thats what
    she said May 2013 about whether or not there are voices inside the apartment.



Ask yourselves why she testified at the preliminary hearing
    that she [couldnt] hear anything once the door was shut. Ask yourself why she
    previously testified the apartment door slammed shut, but at trial she said it
    closed.
[Emphasis added.]

[36]

The trial Crown summarized her position on Ms.
    Delinas credibility and reliability and again referred to the apparent
    inconsistency between her evidence at trial and what she said at the
    preliminary inquiry:

[Y]ou might find that shes just not reliable. That her claim
    that Jason entered the apartment after Kaila Dupuis screamed, get out, isnt
    reliable for a number of reasons. Given that it doesnt make sense in context
    that Kaila Dupuis screamed? That it doesnt make sense in the context of her
    distance from the door, and her ability to hear quiet voices even though shes
    on the phone with 911? That it doesnt make sense given the contradiction in
    her testimony [from] May 2013? And that it doesnt make sense given that she
    had the miraculous ability to hear quiet voices at the door, even though she
    didnt hear minutes of screaming just minutes before.

[37]

Defence counsel objected to aspects of the
    Crowns treatment of Ms. Delinas evidence in her closing submissions,
    including the suggestion that there was a prior inconsistent statement when
    what occurred was that Ms. Delina refused to adopt her prior evidence and then
    offered an explanation. The trial judge indicated that she saw no need to
    provide an instruction to the jury on that point.

(4)

The jury charge refers to the alleged inconsistency in Ms. Delinas
    evidence and invites its impeachment use

[38]

The trial judge referred to Ms. Delinas
    evidence several times during her charge. In her main summary of Ms. Delinas
    evidence, she referred the jury to the alleged inconsistency relied on by the
    Crown, as well as Ms. Delinas response when this was put to her. She provided
    the jury with a standard instruction on the assessment of the alleged
    inconsistency and the explanation Ms. Delina had given, and its use in
    assessing credibility and reliability, but not as evidence of what had
    happened:

[Ms. Delina] testified at trial that she did not see the man go
    in, but that she heard people talking inside the apartment. Ms. Delina was
    taken to a preliminary inquiry testimony. In that proceeding she was asked,
    after you hear the door shut, do you hear anything else? She answered no. She
    was asked, no voices? And she said, no. Ms. Delina explained that she said no
    voices, meaning that the voice wasnt escalated. She testified that she heard
    talking, but it wasnt like there was an argument. She said, I dont know what
    to say. I said that I didnt hear no voices, meaning that like in the time from
    what I heard the difference from in the hallway and then him entering into the
    unit, the tone was different. As Ive already told you, whether a prior
    statement of a witness is inconsistent or whether there is an explanation for
    any apparent inconsistency, or whether the inconsistency is of significance in
    assessing the credibility and reliability, is for you to determine. You should
    remember, however, that unless a witness adopts a prior statement, you cannot
    use the statement as evidence of what happened
.
So, after this event, the police came according to Ms. Delina 10 to 15 minutes
    later. When she opened her door she saw blood on the stairwell door.

D.

POSITIONS OF THE PARTIES

[39]

The appellant contends that the Crown improperly
    cross-examined Ms. Delina without complying with s. 9(2) of the
CEA
.
    The trial judge ought not to have permitted the Crown to use the improperly
    elicited evidence to impeach Ms. Delinas credibility, nor invited the
    jury to consider the prior inconsistent statement in assessing the credibility
    and reliability of her evidence. According to the appellant, what happened here
    in relation to Ms. Delinas evidence, which was key evidence because it
    affected the assessment of the appellants own credibility, rendered the trial
    unfair.

[40]

The respondent asserts that the impugned
    evidence came out when the trial Crown was properly attempting to refresh Ms.
    Delinas memory, and that there was no need for a s. 9(2) application. The
    respondent contends that, once the evidence came out, it could not be ignored,
    and the trial judge properly permitted the inconsistency between Ms. Delinas
    evidence and her prior testimony to be used as a basis to assess her
    credibility. In the alternative, the respondent argues that no harm was
    occasioned by the trial Crown having failed to follow the appropriate
    procedure, because a s. 9(2) application would necessarily have succeeded.

E.

DISCUSSION

[41]

In considering this ground of appeal I will
    address the following issues:

1.

Was this a case of the Crowns refreshing memory or an improper
    cross-examination of the Crowns own witness?

2.

If this was improper cross-examination, can this court determine that no
    prejudice results because leave would have been granted under s. 9(2) of the
CEA

if an application had been made?

3.

Should the appeal be allowed, and a new trial ordered as a result of the
    improper cross-examination and what followed?

[42]

As I will explain, in my view defence counsel and
    the trial judge might reasonably have assumed that Crown counsel was attempting
    to refresh Ms. Delinas memory on the third occasion that she put a prior statement
    to the witness. That said, irrespective of what was perceived to be happening,
    and whether or not it was the intention of Crown counsel to refresh memory, a
    s. 9(2) application ought to have been brought if Crown counsel was to use a
    prior inconsistent statement for impeachment purposes. The record in this case
    does not permit this court to conclude that there was no harm because a s. 9(2)
    application would necessarily have succeeded. And in any event the Crown does
    not rely on the curative proviso in this appeal. In my view, it was wrong for the
    trial judge to permit the Crown to use the evidence that was elicited without a
    s. 9(2) application in the same way she would have been allowed to use the
    evidence if a s. 9(2) application had been brought, and to endorse such use in
    the jury charge. The trial was rendered unfair because this caused material
    prejudice to the appellants defence.

[43]

I will address each issue in turn.

(1)

Was this a case of the Crowns refreshing memory or an improper
    cross-examination of the Crowns own witness?

[44]

I begin by referring to the relevant legal
    principles. Just as counsel is not permitted to put leading questions to his or
    her own witness, cross-examination of a partys own witness is also not
    permitted. Exceptions occur where the witness is determined to be adverse, or
    hostile, or where the witness is not necessarily adverse or hostile but has
    allegedly made a prior inconsistent statement, where the requirements of s.
    9(2) of the
CEA
are met. In each case, it is necessary before
    cross-examining ones own witness to obtain leave of the court. The procedure
    for cross-examining ones own witness on a prior inconsistent statement is
    prescribed by s. 9(2) of the
CEA
,
which provides:

9(2) Where the party
    producing a witness alleges that the witness made at other times a statement in
    writing, reduced to writing, or recorded on audio tape or video tape or
    otherwise, inconsistent with the witness present testimony, the court may,
    without proof that the witness is adverse, grant leave to that party to
    cross-examine the witness as to the statement and the court may consider the
    cross-examination in determining whether in the opinion of the court the
    witness is adverse.

[45]

The proper procedure for bringing and
    considering an application under s. 9(2) is set forth in
R. v.
    Milgaard
(1971), 2 C.C.C. (2d) 206 (Sask. C.A.), at pp. 221-22, leave
    to appeal refused, [1971] S.C.R. x. The statement must be produced, and the
    trial judge must determine whether the prior statement is inconsistent, and then
    determine whether counsel should be permitted to cross-examine the witness. See
    also
R. v. Taylor
, 2015 ONCA 448, 325 C.C.C. (3d) 413, at paras.
    43-51.

[46]

Another situation in which a witnesss prior
    statement may be put before the witness is where counsel is refreshing memory. This
    is permitted only where the witness is having difficulty remembering. Whether
    counsel is permitted to refresh memory in this way is in the discretion of the
    trial judge, and there is a procedure that must be followed. Counsel must lay a
    foundation by ascertaining whether the witness is having difficulty remembering.
    Counsel should ask the witness if they wish to refer to a prior statement. If the
    witness confirms he or she needs assistance remembering and wishes to refer to the
    prior statement, counsel should seek leave from the court to refresh the memory
    of the witness. The statement is produced to opposing counsel, who may object to
    its use. If the court permits the refreshing of memory, counsel should provide
    the statement to the witness, and instruct the witness to consult the relevant
    portion in silence. Counsel can then resume questioning the witness: see Sidney
    N. Lederman, Alan W. Bryant & Michelle Fuerst,
Sopinka, Lederman &
    Bryant: The Law of Evidence in Canada
, 5th Edition (Toronto: LexisNexis
    Canada, 2018), at ss. 16.128-16.129; Peter J. Sankoff,
The Law of Witnesses
    and Evidence in Canada (formerly Witnesses)
, (Toronto: Thomson Reuters
    Canada Limited, 2019), at c. 11.4. If the statement does not refresh the
    witnesss memory, no use should be made of it unless the record is admissible
    under some other rule of evidence: David M. Paciocco, Palma Paciocco & Lee
    Stuesser,
The Law of Evidence
, 8th ed. (Toronto: Irwin Law, 2020), at
    p. 546.

[47]

The respondent argues that what happened here
    was simply a proper attempt to refresh Ms. Delinas memory, that was
    imperfectly executed. The respondent says that the trial Crown did not set out
    to impeach her own witness or to have her declared hostile. Rather, she sought,
    albeit unsuccessfully, to refresh Ms. Delinas memory.

[48]

On a review of the record as a whole, I accept
    that defence counsel and the trial judge might well have believed that, on the
    third occasion when the trial Crown confronted Ms. Delina with a previous
    statement, she was attempting to refresh memory. The Crowns approach to
    refreshing memory had become increasingly relaxed throughout Ms. Delinas
    examination in chief.

[49]

While Crown counsel did not refer to refreshing
    memory when the impugned interaction occurred, and again no foundation was
    laid, defence counsel, who was aware of the potential s. 9(2) issue, did not
    object. The failure to object, together with the surprised reactions of the
    trial judge and defence counsel at the pre‑charge conference when the
    Crown proposed to refer to this inconsistency in closing submissions and asked
    the trial judge to do so in her charge, suggest that defence counsel and the
    trial judge may have believed at the time the impugned interaction took place, that
    the Crown was attempting to refresh Ms. Delinas memory.

[50]

The respondent argues that what occurred here
    was simply a procedural irregularity in refreshing memory and not an improper
    cross-examination based on a prior inconsistent statement. The respondent
    asserts that, as in
R. v. Slatter
, 2018 ONCA 962, 369 C.C.C. (3d) 112,
    it would be wrong to allow the appeal based on procedural irregularities in the
    Crowns refreshing memory of a witness. The respondent asserts that it was
    appropriate for the trial Crown to attempt to refresh the memory of Ms. Delina,
    an honest but forgetful witness, even if there were problems with how the
    Crown approached the task.

[51]

I disagree. In
Slatter
, the appellant
    argued, as here, that the failure of the trial Crown to bring a s. 9(2)
    application rendered the trial unfair. This court concluded however that what
    had occurred was in fact an attempt to refresh a witnesss memory, without
    following the proper procedure. The trial Crown sought to refresh the witnesss
    memory using his police statement and preliminary inquiry evidence, but instead
    of providing him with the transcripts, she read aloud the passages she wished
    to bring to his attention. The witness in question had testified by way of
    video link, and his evidence was confusing. Fairburn J.A. acknowledged that
    the steps taken to refresh [the witnesss] memory did not follow a textbook
    approach but did not allow the appeal on this basis. The circumstances were
    appropriate for refreshing memory because the witness had clearly expressed his
    failure to remember the details of the incident about which he was testifying: at
    para. 49. Fairburn J.A. concluded that no unfairness resulted from the
    procedure followed, which was adopted on consent as a response to the witnesss
    hesitance in the context of a judge-alone trial: at paras. 47, 59.

[52]

In
Slatter
no prejudice resulted where
    the Crown had grounds to refresh the witnesss memory but did not follow the
    proper procedure. In this case, by contrast, and despite the fact that defence
    counsel and the trial judge may have believed Crown counsel was setting out to
    refresh Ms. Delinas memory, there was no similar basis for Crown counsel to
    refresh the witnesss memory in respect of the impugned evidence or indeed on
    any of the three occasions that she put Ms. Delinas prior statements to
    her. Moreover, on the third occasion, even if the trial Crown believed that she
    was refreshing memory, the approach she took was misguided. Without any
    indication that Ms. Delina was confused or that she had difficulty remembering
    what happened (to the contrary she seemed firm in her recollection), the trial
    Crown confronted her with an apparently inconsistent statement she had made in
    the preliminary inquiry. She effectively impeached Ms. Delina by reference
    to her preliminary inquiry evidence, without having brought a s. 9(2)
    application. At the pre-charge conference, with the benefit of hindsight, the
    trial judge recognized this. The Crown had confronted Ms. Delina with a prior
    inconsistent statement in a series of leading questions. She then sought to use
    the inconsistency to undermine Ms. Delinas credibility and reliability, a
    classic purpose of cross-examination.

[53]

Contrary to the respondents submissions on
    appeal, there was no basis for the trial Crown to use the preliminary inquiry
    transcript for the purpose of refreshing Ms. Delinas memory. Nor did the
    witness simply blurt out her prior inconsistent answer in the course of
    refreshing memory. In respect of the evidence that the trial Crown sought to
    contradict  that Ms. Delina believed that the deceased had entered the
    appellants apartment because the tone went down and she could still hear
    people inside the apartment  the witness expressed no difficulty in recalling
    what happened. The only reason that Ms. Delina may have blurted out her prior
    inconsistent answer was that she had been confronted with the transcript which
    was improperly before her. Her reference to her earlier testimony was a natural
    response when she was confronted with it, and, rather than asking Ms. Delina
    whether her memory was in fact refreshed, the trial Crown used the statement to
    cross-examine her.

[54]

Finally, a key distinction between this case and
Slatter
is in the use of the prior statement and its role in the
    trial. In
Slatter
,

while the Crown did not follow the proper
    procedure in refreshing memory, no prior inconsistent statement was put to the
    witness. The references to his earlier transcript were used to prompt his
    memory and to permit him to testify about the events. The witness was
    cross-examined in the ordinary course by defence counsel and he ultimately
    resiled from some of his evidence. Unlike the present case, there was no improper
    attempt by Crown counsel to use what the witness said on the earlier occasion
    to impeach his credibility.

(2)

If this was improper cross-examination, can this court determine that no
    prejudice results because leave would have been granted under s. 9(2) if the
    application had been made?

[55]

The respondent submits that the trial Crown would
    have succeeded on a s. 9(2) application and that no harm was therefore
    occasioned when she cross-examined Ms. Delina.

[56]

I agree with the appellant that this court
    should not attempt to decide the appeal on the basis that the trial Crown would
    inevitably have been permitted to cross-examine Ms. Delina under s. 9(2), had
    she made the necessary application. This court does not have a sufficient
    record to make that determination: see
R. v. Hall
, 2016 ONCA 13, 128 O.R.
    (3d) 641, at para. 32, leave to appeal refused, [2016] S.C.C.A. No. 88.

[57]

To succeed on a s. 9(2) application, the
    Crown would have been required to prove: (1) that there was an inconsistency
    between the preliminary hearing evidence and Ms. Delinas evidence at trial;
    and (2) that Ms. Delina made the prior statement. Then the appellants counsel
    would have had the opportunity to cross-examine Ms. Delina as to the
    circumstances under which the statement was made, and to call evidence for the
    purpose of showing that cross-examination by the Crown should not be permitted,
    before the trial judge would rule on the application: see
Milgaard
, at pp. 221-22.

[58]

There is no issue in this case about Ms. Delina
    having made the prior statement  there was a transcript of the evidence at the
    preliminary inquiry where the statement was made. What is not entirely clear
    however is that there was in fact an inconsistency between Ms. Delinas trial
    evidence and what she said at the preliminary inquiry. While the available record
    suggests that there was an inconsistency, the position of defence counsel at
    trial was that there was no inconsistency between what Ms. Delina said at
    trial and her preliminary inquiry evidence. In the pre-charge conference,
    defence counsel referred to the fact that, in her 911 call, Ms. Delina had told
    the operator that the appellant and Mr. Paglia were inside the apartment, and
    that she could hear them. The trial Crown did not dispute that Ms. Delina had
    said this, but she argued that it was based not on Ms. Delinas direct
    observations, but those of her son.

[59]

In
R. v. C.E.N.
, 1998 ABCA 290, 129
    C.C.C. (3d) 198, Crown counsel similarly cross-examined his own witness without
    bringing a s. 9(2) application. The Alberta Court of Appeal was invited to
    apply the curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
,
R.S.C. 1985, c. C-46, on the basis that
    the result would have been the same had a s. 9(2) application been made. The
    court refused to speculate about whether an application under s. 9 would have
    been successful had Crown counsel made such an application before embarking on
    the cross-examination of the witness, because it could not be determined
    whether the witnesss evidence differed substantially from his police statement.
    In that case, the police statement was not marked as an exhibit, and had not
    even been shown to the witness. Moreover, the court could not conclude that the
    error was harmless and that no substantial wrong or miscarriage of justice
    resulted. The court could not conclude that the improper cross-examination of
    the witness had no effect on the trial judges finding regarding the witnesss
    credibility and the appellants credibility.

[60]

Similarly, in this case neither the preliminary
    inquiry transcript in question nor the 911 call is in the record on appeal. This
    court is not, therefore, in a position to assess whether there was truly an
    inconsistency in Ms. Delinas evidence, and accordingly whether the Crown would
    have been permitted to cross-examine Ms. Delina on this issue, or on any
    other issue, and to put to her the evidence from the preliminary inquiry. Moreover,
    although the respondent argues that the result would have been the same if a s.
    9(2) application had been brought, the Crown did not rely on the curative
    proviso. This court cannot apply the curative proviso absent submissions from a
    party:
R. v. P.G.
, 2017 ONCA 351, 138 O.R. (3d) 343, at para. 13;
R.
    v. Pétel
, [1994] 1 S.C.R. 3, at p. 17.

[61]

I would not accept this argument for another
    reason. If, as I have concluded, defence counsel and the trial judge reasonably
    believed that the Crown was doing no more than attempting to refresh Ms.
    Delinas memory when the impugned evidence came out, and not that the Crown was
    seeking to cross-examine Ms. Delina, then defence counsel was right to
    insist on its proper use when he made submissions during the pre-charge
    conference. Defence counsel took the position that since the Crown was
    refreshing memory and the prior statements were not adopted by the witness, they
    could not be considered by the jury in assessing Ms. Delinas credibility. The
    prior inconsistent statement was not before the jury to be used in the same way
    as if the Crown had brought a s. 9(2) application. If the application had been
    brought, the purpose and proposed use of the inconsistent statement by the
    Crown would have been squarely before the court, and defence counsel would have
    had the opportunity to address the issue in his own cross-examination of Ms.
    Delina. The potential unfairness here arose when the trial Crown proposed to
    use for impeachment purposes the improperly elicited evidence that was
    purportedly before the court for the limited purpose of refreshing memory.

(3)

Should the appeal be allowed, and a new trial ordered as a result of the
    improper cross-examination and what followed?

[62]

I have concluded that Crown counsel erred in
    cross-examining her own witness without complying with s. 9(2), and in using
    the fruits of the cross‑examination to impeach Ms. Delinas credibility
    in her closing submissions to the jury. The trial judge erred in permitting the
    Crown to use the impugned evidence in this way and, in her charge to the jury,
    in directing the jurys attention to the alleged inconsistencies and inviting
    their use in the assessment of Ms. Delinas credibility.

[63]

Even if the Crown did not call Ms. Delina for
    the purpose of impeachment, by the time closing submissions came about, despite
    what the Crown said, it was clear that this was how the Crown intended to use
    Ms. Delinas evidence. She intended to tell the jury to reject the bulk of it
    based, at least in part, on the improper cross-examination.

[64]

The trial judge erred in law in permitting the
    Crown to do so, and in facilitating the Crowns approach to the evidence in the
    jury charge for two related reasons. First, it was prejudicial to the defence
    to permit the Crown to impeach her own witness on an important issue in this
    manner. Second, the Crown had not obtained leave to cross-examine and, as a
    result, the Crowns approach to cross-examining Ms. Delina left the jury
    without all the information necessary to appreciate the circumstances
    surrounding the alleged inconsistency.

[65]

As a matter of law, the jury should have been
    told to disregard the alleged inconsistency and that the improper
    cross-examination of Ms. Delina could not be used to undermine her credibility
    or reliability. Instead, the trial judge decided to deal with this evidence in her
    charge by giving the jury a specific instruction on it. Although her instruction
    on how to deal with an alleged inconsistency would have been legally correct if
    the inconsistency had been properly elicited, in these circumstances, she ought
    not to have told the jury that they could use the improperly elicited evidence
    as a prior inconsistent statement to assess Ms. Delinas credibility. Rather,
    she ought to have specifically instructed the jury to disregard the
    inconsistency.

[66]

First, it was prejudicial to the defence to
    permit the Crown to impeach her own witness in this manner. As outlined above,
    Ms. Delinas evidence was important to the defence because it provided a key
    piece of corroboration for the appellants testimony. The jury could have
    relied on it to believe the appellants evidence, or to conclude that her
    evidence raised a reasonable doubt. The improper cross-examination occasioned
    prejudice to the appellant, such that absent a corrective instruction, her
    trial was unfair.

[67]

In
R. v. Situ
, 2005 ABCA 275, 200
    C.C.C. (3d) 9, the Alberta Court of Appeal allowed an appeal from conviction in
    a judge-alone trial on the basis that the Crown improperly impeached his own
    witness by cross-examining without first obtaining leave as required by s. 9 of
    the
CEA
: at para. 7
.
The
    court endorsed the statement in its earlier decision in
C.E.N.
that improper cross-examination by Crown counsel of his own witness may result
    in a new trial where credibility findings by the judge or jury would have been
    influenced by the cross‑examination, causing prejudice to the accused: at
    para. 8.

[68]

In
C.E.N.
the trial Crown improperly
    cross-examined its own witness in three key areas, including on an issue that
    formed an important part of the appellants defence. The witnesss evidence
    supported the accuseds version, and the trial judge rejected it. The court was
    unable to conclude that the improper cross‑examination had no effect on
    the trial judges credibility findings, and therefore declined to apply the
    curative proviso: at para. 21.

[69]

By contrast, in
R. v. Johnson
(2002),
    166 C.C.C. (3d) 44 (Ont. C.A.), although the Crown put two prior inconsistent
    statements to a witness without having complied with the requirements of s. 9
    of the
CEA,
this court dismissed the appeal after concluding that the
    impugned cross-examination played no role in the trial: at paras. 55-56. The
    court also took into consideration the fact that defence counsel said nothing
    about the alleged statements, demonstrating that he was satisfied that the
    appellants interests were best served by saying nothing about the alleged
    statements: at para. 57.

[70]

In my view, the fact that the impugned evidence
    could have had a bearing on the assessment of the appellants credibility strongly
    supports the conclusion that the improper cross-examination occasioned
    prejudice to the appellants defence. Ms. Delinas evidence overall, and in
    particular her evidence that Mr. Paglia entered the apartment, was
    important to the defence. Her account of the events was a key piece of
    corroborating evidence for the defence, in that it tended to support the
    appellants version of what had occurred.

[71]

Unlike in
Johnson
, where the impugned
    evidence played no role later in the trial,

Ms. Delinas evidence
    remained important throughout the trial. In his closing submissions, defence counsel
    repeatedly stressed the significance of Ms. Delinas evidence and the role
    it played in corroborating the appellants testimony. In her closing
    submissions, the trial Crown also focused on Ms. Delinas evidence. She spent
    considerable time challenging Ms. Delinas reliability, recognizing that the
    jurys acceptance of Ms. Delinas evidence could raise a reasonable doubt about
    the appellants guilt. The trial judge gave the jury a specific charge on the
    impugned inconsistency.

[72]

Although the Crown had other reasons to
    challenge the reliability of Ms. Delinas evidence that she heard Mr.
    Paglia enter the apartment (such as her opportunity to observe), the
    introduction of the prior inconsistent statement provided the Crown with
    considerable ammunition for her position that Ms. Delina was a confused, and
    hence unreliable, witness. This in turn harmed the defences case, given that
    Ms. Delinas evidence provided support for the appellants own evidence.

[73]

Second, the fact that the improper
    cross-examination was conducted on the assumption that the Crown was only
    refreshing memory deprived the jury of a complete record on the circumstances
    surrounding the alleged inconsistency. In other words, the Crown improperly
    cross-examined its own witness on an alleged inconsistency and was permitted to
    rely on that inconsistency to impeach the witness. At the same time, because of
    the way the issue evolved, the jury did not have all the information it needed
    to assess the inconsistency. The defence was deprived of the opportunity to
    attempt to rehabilitate the witness on this point because of how the issue
    unfolded.

[74]

Because these errors occurred in a jury trial, the
    court cannot know what role the impugned evidence played in the jurys
    deliberations. However, the improper cross-examination established a basis for
    the jury to conclude that a key support for the appellants version of events
    was fundamentally flawed. The trial judge expressly told the jury that they
    could rely on the improper cross-examination in this way.

[75]

The prejudice to the appellant might well have
    been avoided had the trial judge instructed the jury to disregard the alleged
    inconsistency. Defence counsel strenuously objected to including any discussion
    of the alleged inconsistency in the jury charge, and he argued that the Crown
    should not be able to rely on the inconsistency to undermine Ms. Delinas
    credibility or reliability, having failed to comply with s. 9(2) of the
CEA
.
    He reiterated his objection after the Crowns closing submissions. The unfairness
    to the appellant could have been avoided by an appropriate caution and
    specifically by preventing the Crown from using the alleged inconsistency for
    impeachment purposes. Contrary to the trial Crowns argument at trial, no
    unfairness would have resulted from the Crowns being deprived of the
    opportunity to use the fruits of the improper cross-examination of Ms. Delina.
    And the unfairness in permitting the evidence to be used in this way was
    manifest.

[76]

In my view, the trial Crowns improper
    cross-examination of Ms. Delina, together with the Crowns reliance on the
    evidence to impeach her credibility and the trial judges response, undermined
    the fairness of the appellants trial, such that the appeal should be allowed.
    Although this is sufficient to dispose of the appeal, I wish to conclude these
    reasons by referring briefly to another ground of appeal that was raised by the
    appellant in this case.

F.

THE CROWNS RELIANCE ON IMPERMISSIBLE MYTHS AND STEREOTYPES

[77]

The appellant asserted as a ground of appeal,
    that the trial Crown improperly invited the jury to use prejudicial stereotypes
    about the expected behaviour of victims of domestic abuse to reject the
    appellants evidence that, having previously been assaulted by the deceased,
    she was acting in self-defence when he was stabbed, as well as to conclude that
    she was not a credible witness. Although the trial Crown for the most part
    focused on the appellants own history of intimate relationships with the
    deceased and another former boyfriend and her prior conduct to challenge her
    credibility, on more than one occasion during her closing argument, Crown
    counsel came close to or crossed the line in inviting the jury to measure the
    appellants conduct against how a typical victim of domestic abuse would
    behave.

[78]

Given my conclusion on the first ground of
    appeal, it is unnecessary to determine whether the trial Crowns closing
    submissions gave rise to prejudice. Crown counsel on appeal acknowledged, and I
    agree, that given the nature of this evidence and some of the arguments made by
    Crown counsel in her closing submissions, it would have been preferable for the
    trial judge to have cautioned the jury to avoid stereotypical reasoning in
    assessing the appellants evidence about prior abuse. Reliance on myths and
    stereotypes about how a typical victim of domestic abuse would behave is
    inappropriate, whether it is directed at assessing the behaviour of a person
    accused of sexual assault or that of a complainant: see
R. v. D.D.
,
    2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63;
R. v. Thompson
, 2019
    BCCA 1, 370 C.C.C. (3d) 354, at paras. 56-57, 64;
R. v. Quartey
, 2018
    ABCA 12, 430 D.L.R. (4th) 381, at para. 2, affd 2018 SCC 59, [2018] 3 S.C.R.
    687.

G.

CONCLUSION AND DISPOSITION

[79]

For these reasons, I would allow the appeal, and
    direct a new trial on the charge of manslaughter.

Released: December 16, 2020 (J.S.)

K.
    van Rensburg J.A.

I
    agree. Janet Simmons J.A.

I agree. B. Zarnett J.A.





[1]
In
    oral argument the appellant abandoned an argument raised in her factum, that
    the trial judge erred in failing to leave the defence of accident with the
    jury.


