



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Clayton
,









2021 BCCA 24




Date: 20210121

Docket: CA45683

Between:

Regina



Respondent

And

Larry Daniel Clayton



Appellant




Before:



The Honourable Madam Justice MacKenzie

The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Abrioux




On appeal from:  An
order of the Supreme Court of British Columbia, dated
November 18, 2016 (conviction) (
R. v. Clayton
, 2016 BCSC 2153,
New Westminster Docket X078546).




Counsel for the Appellant
(via videoconference):



B.R. Anderson





Counsel for the Respondent
(via videoconference):



E.V. Gottardi, Q.C.

R.A. McConchie





Place and Date of Hearing:



Vancouver, British Columbia

December 1, 2020





Place and Date of Judgment:



Vancouver, British Columbia

January 21, 2021









Written Reasons by:





The Honourable Madam Justice MacKenzie





Concurred in by:





The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Abrioux








Summary:

The appellant was convicted
of assault and unlawful confinement following a trial by judge alone in the BC Supreme Court.
He and the complainant had been in an intimate relationship and her pregnancy was
a source of conflict. On appeal, the appellant argued the trial judge erred in
refusing to direct the complainant to answer questions in cross‑examination
about whether she had an abortion, and if so, when. Held: Appeal dismissed. The
information sought by the defence was relevant to its theory about the
complainants motive to lie, and was therefore relevant to her credibility.
However, the trial judge did not err in refusing to direct the complainant to
answer the questions. The Crown put the information sought on the record. Once
that information was before the judge, it was no longer a live issue and there
was no need to cross‑examine the complainant to obtain the same
information. The appellant was not prevented from arguing his theory on motive,
nor was he otherwise limited in his defence.

Reasons for Judgment
of the Honourable Madam Justice MacKenzie:

Introduction

[1]

After a trial by judge alone in the Supreme Court of British Columbia,
the appellant was convicted of assault and unlawful confinement, contrary to
ss. 266 and 279(2) respectively, of the
Criminal Code
, R.S.C. 1985,
c. C‑46.

[2]

The appellant and the complainant had been involved in an intimate
relationship. The charges arose from the complainants allegations that the
appellant assaulted her and forced her into his car, verbally abusing and
threatening her. The conflict centered on the complainants pregnancy with the
appellants child about which she did not wish to speak to the appellant.

[3]

The appellant represented himself at trial except that pursuant to
s. 486.3(3) of the
Criminal Code
, the judge appointed counsel to
cross‑examine the complainant (counsel). During cross‑examination,
counsel asked the complainant whether she had had an abortion. The complainant
replied that she did not feel comfortable answering that question. Counsel then
asked the judge to direct the complainant to answer the question. The Crown had
disclosed to the appellant both the fact and date of the abortion, which the
Crown admitted for the record.

[4]

Following submissions, the judge declined to order the complainant to
answer the questions proposed by counsel (the fact and the date of the
abortion). The judge said he was fully aware the complainant was pregnant when
the assault and unlawful confinement allegations arose and that the appellant
would be upset if she were not going to have the baby. In light of the
circumstances, including the Crowns admission, the matter was not in issue. Accordingly,
the judge did not see any point in putting the witness through it.

[5]

The sole ground of appeal is whether the appellants trial was unfair
because the judge declined to order the complainant to answer counsels proposed
questions.

[6]

In my opinion, the judge properly exercised his discretion not to order
the complainant to respond to the questions. I would therefore dismiss the
appeal.

The Evidence at Trial

[7]

The complainant was the key witness at trial. The outcome depended
primarily on the judges assessment of her credibility. In support of the
complainants evidence, the Crown adduced a surveillance video from outside of
the complainants home. It showed part of her interaction with the appellant at
the material time. Three police officers and one civilian gave evidence as to
the authenticity of the surveillance video. The Crown also adduced text
messages the appellant had sent to the complainant after the allegations arose.
There is no issue on appeal regarding either the surveillance video or the text
messages. One of the police officers who attended the complainants home on
March 1, 2015, to take her statement testified that she seemed
fearful.

[8]

The appellant did not testify. He called one witness who gave uncontroversial
evidence related to the surveillance video.

The Complainants Evidence

[9]

To give context to the issue on appeal, I will review the complainants
evidence in some detail.

[10]

At the time of trial, the complainant was 24 years old. She
immigrated to Canada in 2003 and had been living in British Columbia ever since.

[11]

The complainant met the appellant in October 2014. Early in their
relationship, things went well. After a month, however, the complainant
testified that the appellant became jealous and controlling. In one incident in
November 2014, he yelled, swore, and damaged her cellular phone upon
seeing another mans name on her call display. There were other instances of
yelling and expressions of jealousy by the appellant, but the two remained
friends.

[12]

On the morning of February 27, 2015, the appellant appeared
unannounced at the complainants home and drove her to work. He said he wanted
to talk to her. He was aware she was pregnant and was concerned about her
intentions regarding the baby. The complainant testified that he wanted her to
have this baby. Later that day, the appellant picked up the complainant from
work and drove her home.

[13]

On the evening of February 27, 2015, the complainant went to a
nightclub in New Westminster. On arriving, she noticed the appellant,
despite their lack of plans to see each other. He again asked to talk to her,
but the complainant declined. She also later declined the appellants request
to drive her home. At about 2:00 a.m., the complainant took a taxi home
with her friend, Chad.

[14]

The taxi dropped off the complainant in front of a house next door to
her home. She saw the appellants car in the driveway. It was approximately
2:30 a.m. The complainant testified that as she walked towards her home,
the appellant got out of his car and said again that he wanted to talk to her.
She refused. The appellant asked who was in the taxi with her, to which she
responded, It was Chad. She testified that the appellant then lost it and
punched a gate.

[15]

The complainant went through the gate, but tripped and landed flat on her
back. The appellant was then on top of her, straddling her body, threatening
her, and yelling a lot. The complainant said he grabbed her neck and she
fainted.

[16]

When the complainant eventually got up, she said the appellant took her
to his car and put her in the front passenger seat. (In her examination‑in‑chief,
the complainant was asked if she tried to move away from the appellant when he
was taking her to his car. She testified that she did not because the appellant
said he was going to punch her in the face.) She testified that she tried to
get out of the car, but the appellant said, Dont even try. The complainant
was scared. Once the appellant started driving the car away from the
complainants home, the complainant attempted to call 9‑1‑1 but the
appellant took away her cellular phone. The complainant testified that the
appellant drove her to a parking lot in the Guildford area (the parking lot),
a neighbourhood in Surrey, and during the car ride, he kept yelling at her
and calling her names. He was angry. She zoned out and awoke with her
head on the appellants lap in the parking lot. The appellant then said, If
you try anything  Im going to do it again.

[17]

While the two were in the appellants car in the parking lot,
the appellant used his cellular phone to call a friend named Ty. The
complainant testified that she heard the appellant say, If you dont hear back
from me by this time ... go take care of [the complainant]s family,
which the complainant understood meant to kill her family. The appellant had
referred to her by her nickname.

[18]

The appellant eventually drove to the complainants home. She
testified that she zoned out and did not recall what was said or whether
the appellant followed her into the house as she was so weak  and tired.
She later recalled that the appellant had walked her to the door before
eventually leaving.

[19]

The next day, the complainant called her workplace and said she was
sick. The appellant returned to her home. The complainant testified that he
stayed almost the whole day and said at one point, You cant keep me away
from my child. By then she had decided what [she] was going to do with the
baby, but did not tell the appellant. (The trial judge inferred from this
that she had decided to have an abortion.) Later that day, the complainants
sister called the police who attended and took a statement.

[20]

The complainant was shown a surveillance video taken from a camera
attached to the outside of the house where she lived with her sister and her
brother. The camera had a view towards the street. It showed the road in front of
the property and the driveway leading up to the gate that led to the entrance
of the complainants home.

[21]

The complainant provided identification commentary on the video surveillance
footage. Its clarity was poor, so without the assistance of the complainant, it
was not possible to identify her or the appellant as the two people depicted.

[22]

The first of the videos began at 2:55 a.m. on February 28, 2015.
The complainant described the appellants car coming into view, then parking by
her house. The next video, timestamped 3:15:59 a.m., showed a taxi pass by
the front of the complainants house and stop out of view. The complainant testified
that she walked away from the taxi towards her house. The appellant got out of
his car and stood by the gate leading to the side of the house. She described
backing up near the gate with the appellant approaching her, screaming. He
moved aside from the gate and she walked along the side of the house, out of
view of the camera. The incident described abovewhere she landed on the ground
with the appellant straddling herthen followed.

[23]

At 3:21:42 a.m. of the footage, the complainant described the appellant
holding her while he walked toward the car. He opened the car door to the front
passenger seat, put her in, shut the door, and got into the drivers seat. The
video showed the front passenger door opening and shutting when the car drove
away.

[24]

At 4:29:37 a.m. of the footage, the complainant testified that she
saw the appellants car return and pull into the driveway. She was in the car then.
At 5:08 a.m., both she and the appellant got out of the car and walked
towards the gate.

[25]

The complainant testified that her sister later called the police as the
complainant was too scared to call. The complainant received text messages from
the appellant after the alleged assault and unlawful confinement and after it
had been reported to the police. The text messages showed the appellant was
upset about the complainant seeing another man while she was pregnant with the
appellants child. The text messages also reflected his upset about having to
deal with the police because of her sisters complaint.

[26]

In the days following the text messages and after the appellants
exchanges with the police, the complainant and the appellant got together. The
complainant testified the appellant had no where to go, so she got him a hotel
room. She visited him there and he apologized to her.

[27]

In cross‑examination, the complainant refused to answer the
question as to whether she had had an abortion. The judges exercise of
discretion not to order her to answer the question, or the follow‑up
question as to when, forms the basis of this appeal. I will address this
issue after reviewing the reasons of the trial judge, to which I now turn.

The Reasons of the Trial Judge

[28]

I will also review in some detail the reasons of the trial judge to
further situate the relevance of the proposed questions on cross‑examination.

[29]

The trial judge observed that the most important witness by far was the
complainant and that his decision rested primarily on an assessment of her
credibility. The judge thoroughly reviewed the complainants evidence. He also
reviewed the video surveillance footage together with the complainants identification
commentaries, and the content of the text messages the appellant sent to the
complainant after the allegations arose.

[30]

The judge found the text messages went to post‑event conduct
relating to the credibility of the complainant and to the appellants conduct
towards her. The judge found the text messages to be part and parcel of the
narrative of the events of the day in question and shortly thereafter. In the
texts, the appellant referred to the complainant as a baby killer. The judge
found this corroborative of the complainants evidence that the appellant was
threatening toward her and corroborative of her allegation that she was not
safe.

[31]

The judge noted that the appellant, relying on his allegation of the
complainants lack of credibility and the alleged unreliability of the video
evidence, took the position that the Crown had failed to prove the offences.

[32]

The judge was satisfied the video surveillance recordings were an
accurate depiction of the events outside the complainants home in the early
morning of February 28, 2015. While the recordings could not support
a positive identification, they depicted a person who resembled the complainant
and a male who exited the parked car and confronted the complainant. That
evidence corroborated the testimony of the complainant regarding, in
particular, the confrontation between her and the appellant.

[33]

The trial judge considered counsels submissions challenging the
complainants credibility, specifically (at para. 32):



The complainant misled the police as to the extent of her relationship
with Mr. Clayton by saying Mr. Clayton was not her boyfriend in spite
of being in an intimate relationship with Mr. Clayton on an almost daily
basis since the fall of 2014.



The complainant did not mention to police the incident in November 2014
when Mr. Clayton was upset and broke her cell phone which she considered
to be a violent act. She had told the police that the incidents of February 28, 2015
were the first occasion Mr. Clayton had been violent.



At the preliminary inquiry the complainant had testified as to getting
off work at 6 p.m. on February 27, 2015 but at trial stated she
had gotten off work at 3 p.m. and regarding the same day provided
inconsistent answers as to whether she had asked Mr. Clayton to pick her
up or whether he had appeared at work uninvited by her.



At the conclusion of her cross‑examination, the complainant was
asked:

Q.        Im going to
suggest to you that you went ‑ ‑ you went into the
vehicle voluntarily.

A.         No.

Q.        And you were not
assaulted and you were not confined.

A.         I dont have a doubt. There was assault,
but I did not go to the vehicle against my will [sic].

[34]

The judge responded to the attacks on the complainants credibility in
this way:

[33]      There were other areas where the complainants
credibility was raised. After having reviewed her evidence overall, I agree
that there were responses from the complainant that were inconsistent or
incorrect and there were matters in respect of which she failed to advise
police or which she did not mention in her testimony at the preliminary
inquiry. Regarding matters that were not referred to prior to her evidence at trial
such as not having told the officers that she was pregnant, her answers
depended upon what she was asked in the first instance, in other words, she did
omit some matters, such as how Mr. Clayton had grabbed her neck while on
the ground on the sidewalk beside the house and whether she had gone
unconscious. In a situation where a woman has been threatened and left
frightened, it is not unusual that she may omit some description of what
occurred, likely unintentionally, due to the situation and the stress of
answering the questions of a police officer. Overall, I found the
inconsistencies in her evidence to be inconsequential and do not relate to any
assault or confinement.

[34]      Regarding the statement
by the complainant that she did not go into the vehicle against my will, that
evidence was entirely inconsistent with her answer to the previous question she
had been asked, i.e. that she went into the vehicle voluntarily to which she
answered no. I conclude in this instance that she either misspoke or was
confused when she then stated she did not go to the vehicle against her will.
Video evidence of her getting to and into the car corroborated the appearance
that she did not get into the Cadillac voluntarily.

[35]

The judge discussed the elements of assault and unlawful confinement and
said there was no evidence of consent before him.

[36]

Overall, the judge found the frailties in the complainants evidence to
be inconsequential and unrelated to the assault or unlawful confinement
charges. He found her evidence with respect to the offences was reliable and
credible. The judge explained his reasons for so concluding (at para. 63):



The video evidence, especially of the scene when the complainant was
pushed towards and into the Cadillac is corroborative of her evidence.



Any inconsistencies in her evidence are not in respect of the actual
assaults and confinement but relate to other matters which are not elements of
the offences.



During the early hours of February 28, 2015, the complainant experienced
a highly emotional and frightening exchange with Mr. Clayton who lost
it, according to the complainant and who continued to berate her steadily
until eventually returning her to her home hours later. She also testified that
she fainted or was out on occasion which is understandable, considering she
encountered an extremely dangerous and threatening experience. The temperament
of Mr. Clayton, including his threats, are also consistent with the text
messages that he sent her after the police became involved. He was very
emotional over her pregnancy and attempted to continue his control over her.



She also testified at trial that she had not consumed drugs or alcohol
and so would be more likely to accurately recollect what may have happened
subject to having fainted.



The complainants evidence was consistent with her wanting to end the
relationship and trying to get away from him when he was pressing her regarding
her pregnancy. She avoided him at the night club and said she did not want to
talk.



The complainants evidence was consistent with Mr. Claytons use of
physical and psychological confinement when she was in the car. She had no
meaningful escape routes/means of being released from confinement.



The complainant clarified that when she said that Mr. Clayton was
someone that she used to know she meant that once shed been hurt by Mr. Clayton,
she had treated him as if shed put him to one side (See transcript, Feb 1, 2016,
p. 63, ll. 43‑46).



The complainant was quite reticent to discuss her pregnancy and abortion
with the police. Her reticence is likely due to the fact that she is from a
prominent South Sudanese family who are adherents of Roman Catholicism and
would not tolerate extramarital relations (See transcript, Feb 1, 2016,
p. 64 l. 25 ‑ p. 65, l. 26).

[37]

In the result, the judge was satisfied beyond a reasonable doubt that
the appellant assaulted the complainant on more than one occasion in the early
morning of February 28, 2015. He accepted the evidence of the
complainant that the appellant held the front of her neck while straddling over
top of her at the side of the house. Those actions caused the complainant to
have pain in her neck area and to briefly pass out. The judge also accepted
that the appellant screamed and threatened to punch the complainant in the
face. All of these actions, in his view, satisfied the definition of assault.

[38]

The trial judge also found the appellant had committed another assault
by pushing the complainant, against her will, towards and into his car. He
considered it likely that a further assault took place inside the car in the
parking lot, but noted that the evidence was inadequate to prove it.

[39]

The judge additionally considered that when the appellant pushed the
complainant towards his car, opened the door and pushed her inside before driving
off, he committed the offence of unlawful confinement.

[40]

Noting there was no evidence to contradict the video surveillance
footage and the evidence of the complainant, the judge convicted the appellant
of assault and unlawful confinement as charged.

The Issue

[41]

The only ground of appeal is whether the judge erred in not ordering the
complainant to answer the question(s) posed in cross‑examination as to
whether she had had an abortion (and if so, when). The appellant says the judge
erred in concluding that because the evidence sought did not go to the ultimate
issue of guilt or innocence, it was irrelevant.

The Impugned Ruling on Cross‑Examination

[42]

Toward the end of the complainants cross‑examination, she refused
to answer the question on which this appeal is centered. The exchange was as
follows:

Q         Okay. What -- what happened to the -- to
the child?

THE COURT:  What happened to the what?

[COUNSEL]:

Q         The -- the child that the two of you
have.

A          What does this have to do with anything?

Q         Well, unfortunately I have to ask you the
question.

A          Well, I cant answer that.

Q         Sorry, are you -- youre refusing to
answer that question?

A          I dont feel comfortable answering that
question.

Q         All right. Did you have an abortion?

A          I cant answer that.

[COUNSEL]:  Id like a
direction that the witness answer the question, please.

[43]

The trial judge asked the complainant to step out of the courtroom while
he received submissions on the issue. The Crown noted the complainant was
clearly uncomfortable answering that question and informed the court that
disclosure provided to the appellant made clear that the complainant did have
an abortion. The trial judge expressed concern about whether the question was
relevant. The Crown offered to put  on the record the fact that
the complainant had an abortion and the date on which the abortion took place
if it was important to the defence.

[44]

The judge asked counsel to clarify whether [t]hats what you want to
know, being the fact and timing of the abortion. Counsel confirmed it was.
Counsel submitted the evidence was relevant to the context of the relationship
and the context of the argument that they were having, which related to the
pregnancy, what was going to happen with the child. He further submitted the
information was relevant to the appellants theory as to why this witness is
saying that this happened. In particular, counsel pointed to the temporal link
between the complainant finding out she was pregnant and the allegations
arising. He submitted this was important because the complainant was from a
conservative Catholic family and the question of what to do about the
pregnancy out of wedlock would be a serious issue that must have caused her a
lot of angst.

[45]

Counsel then alluded to the fact that cross‑examination is often
the only method to uncover the truth in a matter. The judge responded by
noting that youve got what we understand to be the truth in that she did have
the abortion. The judge recognized that the appellant clearly did not want the
complainant to have an abortion.

[46]

Counsel responded that he also wanted to establish the timing of the
abortion. The judge asked why that was relevant. Counsel responded that the
timing of the abortion relative to her reporting the allegations to the police
was relevant to her motive. Essentially, the theory was that she reported the
matter to the police so that she could deal with her pregnancy without having
to answer to Mr. Clayton for what happened.

[47]

The Crown agreed that timing might be relevant and there was a good faith
basis for the question. Crown counsel offered to make an admission that the
complainant had had an abortion on March 2, 2015. This would achieve
what [the defence] wants to achieve without having to make the witness more
uncomfortable. The defence could put to the complainant their theory that she
fabricated the events and she could choose to accept it or deny it or continue
to say shes uncomfortable.

[48]

The judge refused to direct the complainant to answer the questions at
issue:

THE COURT:  Im here to decide whether or not there is
an assault and whether or not there is a confinement. Im fully aware of the
circumstances that she was pregnant at the time and your client, you know,
would be, you know, upset if she wasnt going to have the baby or whatever.

From this perspective, thats
fully -- I can understand that. I dont think its going to make any
difference to me one way or the other as to how -- you know, the
outcome of this matter [indiscernible/microphone not functioning] as to whether
or not she had an abortion.

Regarding
the admission on the record, I think thats -- thats there, and I
know when. And I appreciate those circumstances. But if she says yes or no,
that I didnt have an abortion or I did have an abortion and when, in these
circumstances is unnecessary and its just -- I dont think I need to
hear that at all, and I dont see any point in putting the witness through it
if its not -- not an issue, and it isnt an issue, so thats what
happens.

[49]

It is significant that in his closing argument, the appellant submitted
the complainant had made up the allegations against him because she and her
sister wanted the appellant out of the way. He contended that the
complainants family was pressing her to have an abortion and she wasnt
willing to have the abortion if [he] was there.

Applicable Legal Principles

Standard of Review

[50]

The parties disagree on the standard of review. The appellant
says the standard is correctness as it is a question of law whether
the judge erred in taking an overly restrictive view of relevance in the
context of cross‑examination. The Crowns position is that the judges
assessment of the probative value and prejudicial effects of the evidence, and
his management of cross‑examination, is owed deference on appeal. In my
view, both parties are correct.

[51]

Whether the threshold requirement of relevance is met is a question of
law reviewable on a correctness standard; it would be a legal error to admit
irrelevant evidence. However, not all relevant evidence is necessarily
admissible. A judges decision to exclude relevant evidence where its probative
value is outweighed (or, for defence‑led evidence, substantially outweighed)
by its prejudicial effect involves the exercise of discretion. Absent reliance
on improper legal principles, the judges conclusion in this regard is owed
deference:
R. v. Araya
, 2015 SCC 11 at para. 31;
R. v. Ansari
,
2015 ONCA 575 at para. 112, leave to appeal refd (2016), [2015] S.C.C.A. No. 487.

[52]

The judges decision as to how to best manage cross‑examination is
also owed deference. As this Court held in
R. v. Podolski
,
2018 BCCA 96 at para. 369, leave to appeal refd (2019), [2018] S.C.C.A. No. 322,
[a]bsent the kind of unwarranted interference in cross-examination that denies
an accused the right to make full answer and defence, this is a matter of trial
management with which an appellate court should not lightly interfere.

The Right to Cross‑Examination

[53]

It is common ground the accused has the right to cross‑examine
witnesses without significant or unwarranted constraint. This right is part of
the accuseds constitutional right to make full answer and defence. Cross‑examination
is particularly important where credibility is a central issue at trial:
R. v. Osolin
,
[1993] 4 S.C.R. 595 at 66365.

[54]

Nor is it disputed that as a general rule, witnesses must answer
questions put to them as long as the questions are relevant and otherwise
admissible. Where a question asked is relevant and otherwise admissible, and
where the trial judge directs the witness to answer the question, a witnesss
continued refusal to answer is an affront to the authority of the court,
requiring a remedy. The trial judge has broad discretion regarding the best way
to handle such a situation:
R. v. Arradi
, 2003 SCC 23 at paras. 32, 3435.

[55]

But as the Crown submits, witnesses are not obliged to answer irrelevant
questions, and trial judges are not obliged to direct them to do so. Rather, a
judge has a duty to inquire into and determine the relevance of a question
before ordering a reluctant witness to answer it:
R. v. Fields
(1986), 28 C.C.C. (3d) 353 at 35859 (Ont. C.A.).

Relevance and the Admissibility of Evidence

[56]

Evidence must be relevant to a material issue in order to be admissible:
R. v. Calnen
, 2019 SCC 6 at para. 107,
per
Martin J.,
dissenting on other grounds. The relevance threshold is a low one that
will be met where the evidence has some tendency to make the proposition for
which it is advanced more likely than it would be in the absence of the
evidence:
Calnen
at paras. 108, 142. Despite the low threshold,
evidence is irrelevant if the inference it is adduced to support is
speculative, equivocal, or unreasonable:
R. v. White
, 2011 SCC 13
at para. 167.

[57]

To be material, the evidence must be relevant to a
live
issue:
Calnen
at para. 109 (emphasis in original). Materiality can relate
directly to an issue that must be decided in the case, or it can relate to information
that assists the trier of fact in assessing the quality of the other evidence,
such as the credibility of the witnesses. This is sometimes referred to as
primary and secondary materiality: David M. Paciocco, Palma Paciocco & Lee Stuesser,
The Law of Evidence
, 8th ed. (Toronto: Irwin Law, 2020) at 35.

[58]

As stated, even if evidence is relevant to a live issue, it may be
excluded where the judge is of the view that the probative value of the
evidence is outweighed by its prejudicial effect. When the issue relates
to defence‑led evidence, its probative value must be substantially
outweighed by its prejudicial effect:
R. v. Seaboyer
, [1991] 2 S.C.R. 577
at 611. The probative value inquiry is an assessment of the strength of
the evidence, the extent to which it supports the inferences sought to be drawn
from it, and the extent to which the matters it tends to prove are at issue in
the proceedings:
Ansari
at para. 110. The prejudicial effect relates
to the costs of admitting the evidence, such as the risk it will be used
improperly, or will distract from the real issues in the trial:
Ansari
at paras. 105108.

The Appellants Position

[59]

The appellant submits the complainants pregnancy was a crucial
contextual piece of the case and its outcome was the heart and soul of the
conflict between the parties. He submits there was an element of unfairness to
the manner in which the parties were permitted to adduce evidence of their
theories of the case in this regard: the Crown was permitted to adduce text
messages of the appellants post‑event conduct that corroborated the complainants
version of events. But the appellant was not permitted to cross‑examine
the complainant on the outcome of the pregnancy, which was important to his
ability to establish the complainants motive to lie.

[60]

In particular, the appellant argues he was prevented from asking the
complainant about whether her family would disown her if she did not have an
abortion. He also submits he was prevented from testifying about his
conversation at the hotel with the complainant about why she was doing this
as those questions had not been put to the complainant.

[61]

The appellant contends the trial judges ruling was based on an incorrect
view of relevance that required the answers sought to relate directly to the
issue of guilt or innocence. He argues an accused should be permitted to cross‑examine
on any question that is relevant to the issues and for which there is a good faith basis.
The Crown at trial conceded these points. Accordingly, there was no reason not
to allow the cross‑examination on these questions. The appellant further
submits the complainants discomfort with the proposed question was not a
proper reason not to allow the cross‑examination.

[62]

Finally, the appellant contends the Crowns admission on the fact and
timing of the abortion does not change the calculus. The appellant was not
obliged to accept the veracity of the information provided by the Crown, which
was based on the complainants unrecorded statement to a police officer. As
noted in the dissenting judgment in
R. v.

R.V.
, 2019 SCC 41
at para. 115, an accuseds ability to make full answer and defence depends
not just on the fact of cross‑examination, but also on the accuseds
ability to control the rhythm of that process. The effectiveness of cross‑examination
could be significantly blunted if the Crown could replace that right on any
given topic with an admission of its choosing. The ability to control the cross‑examination
was particularly important because the appellant was already somewhat limited
in his ability to conduct his own defence due to the appointment of counsel for
the cross‑examination of the complainant.

Discussion/Analysis

[63]

I agree with the appellants submission that evidence does not have to
relate directly to an issue that must be resolved in the casesuch as whether
the elements of the offences of assault and unlawful confinement were provedto
be relevant. More precisely, evidence need not be relevant to an issue of
primary materiality in order to be admissible.

[64]

As earlier described, evidence must be relevant to a material issue to
be admissible. Evidence has secondary materiality when it assists the
trier of fact in assessing the quality of the evidence adduced to prove the
issues in the casein other words, where it assists in assessing the evidence that
has primary materiality.

[65]

In this case, the appellant submits the evidence was relevant to
establishing the complainants motive to lie. Whether the complainant had a
motive to lie about the allegations was relevant to her credibility: if she had
a reason to lie, it is more likely she was in fact lying when she gave her
evidence. Evidence relevant to establishing a motive to lie is material because
it assists the trier of fact in deciding whether to believe the complainants
evidence, which forms the basis of the Crowns ability to prove the elements of
the offences.

[66]

This raises the question of whether the fact and timing of the complainants
abortion were relevant to establishing this motive to lie. The appellants
theory was that the complainant was motivated to fabricate the allegations so
the appellant would be out of the way, allowing the
complainant to have the abortion that he did not want her to have. In many
cases, there would not be a logical link, as the Crown puts it, between
the complainant having had an abortion after she gave her police statement
and the likelihood that she lied about the appellants conduct. However,
given the complainants evidence that the appellant was following her
and threatening her about the status of her pregnancy, I accept that in this
case, the fact the complainant had the abortion some time after giving her
police statement has some tendency to make it more likely that she lied
about the allegations to get the appellant out of the way than
it would be in the absence of that evidence. Accordingly, the fact and timing
of the abortion were relevant to a material issue in the case.

[67]

Nevertheless, the trial judge did not err in refusing to direct the
complainant to answer counsels questions about the fact and timing of the
abortion. This is because the Crowns admission that the complainant had an
abortion on March 2, 2015, provided the defence with the very information sought
in order to argue its theory. The important point for the defence theory
was that the abortion occurred some time after the report to police.
The information the Crown put on the record aligned with this theory. While
there may be circumstances in which a proposed admission is unacceptable for
various reasons (see e.g.,
Araya
at paras. 3138), in this case,
the defence was not prejudiced when Crown counsel put the information on
the record rather than having it elicited through cross‑examination of
the complainant.

[68]

It is in this context that the judges comment that there was no point
in putting the witness through it if its not  an issue must be
read. Once the trial judge had the information that the defence sought to
elicit on cross‑examination of the complainant, that information was no
longer a live issue. Thus, there was no need to cross‑examine the
complainant to obtain the same information. In other words, the information was
no longer material as defined in
Calnen
at para. 109.

[69]

The scope of the trial judges ruling was narrow: it related only to the
fact and timing of the abortion. The defence was not prevented from asking the
complainant about her familys views on whether she should have an abortion,
how they would react if she did or did not have an abortion, or whether certain
answers she gave the appellant in the hotel room as to her motives were true.

[70]

The record reflects a thorough cross‑examination of the
complainant on matters related to her pregnancy and relevant to the appellants
theory. For example, counsel asked the complainant about her personal views on
her pregnancy. He suggested it was a problem and she agreed. The complainant
acknowledged she was fairly religious, she was raised in the Catholic faith,
and still followed its tenets. She agreed the church was opposed to premarital sex
and unwed mothers. She also agreed that learning she was pregnant was
quite stressful for her.

[71]

Counsel asked the complainant about her familys background and views on
her pregnancy. She agreed she came from a prestigious family, and her
parents were religious and socially conservative. The complainant further
agreed with counsels suggestion that her family, culture, and church would
disapprove of her out‑of‑wedlock pregnancy. The complainant
was cross‑examined on whom she had told about her condition, and about
the conflict with the appellant over the pregnancy. She agreed he wanted her to
have his baby and was very concerned about the outcome of the pregnancy.

[72]

Further, the complainant agreed with counsel that the idea of reporting
the alleged offences to the police came from her sister and friends. It was not
her idea and she was afraid to make the call to the police.

[73]

Finally, counsel did put the appellants theory to the complainant.
Counsel suggested that she and her sister had made up the allegations because
she did not want the appellants input into what happened to the baby. The
complainant denied having made up the allegations.

[74]

In sum, I see no basis for the appellants submissions that he was
somehow limited in his defence. In the circumstances, the judges ruling was a
reasonable exercise of his discretion and trial management powers.

Disposition

[75]

In the result, I would dismiss the appeal.

The Honourable Madam Justice MacKenzie

I AGREE:

The
Honourable Mr. Justice Goepel

I AGREE:

The Honourable Mr. Justice Abrioux


