R. v. Shearing, [2002] 3 S.C.R. 33, 2002 SCC 58
Ivon Shearing Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for Ontario,
the Women’s Legal Education and Action Fund,
and the Criminal Lawyers' Association (Ontario) Interveners
Indexed as: R. v. Shearing
Neutral citation: 2002 SCC 58.
File No.: 27782.
2001: October 9; 2002: July 18.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for british columbia
Criminal law – Evidence – Similar fact evidence – Admissibility – Leader of a cult charged with sexual offences relating to multiple complainants — Two complainants not members of accused’s cult but resident with accused — Remaining complainants disciples of accused — Whether evidence of each count of sexual misconduct was admissible as similar fact evidence of all other charges.
Criminal law – Evidence – Cross-examination — Sexual offences – Diary – Trial judge permitting cross-examination of one complainant with respect to specific entries in her diary arguably inconsistent with her testimony at trial but not with respect to absence of any references to abuse in diary — Whether cross-examination on absence of reference to abuse should have been allowed.
The accused was the leader of a cult which believed that enlightenment is reached through ascension by steps of consciousness. He preached that sexual experience was a way to progress to higher levels and that he, as cult leader, could be instrumental in enabling young girls to reach higher levels through sexual and spiritual contact. He was charged with 20 counts of sexual offences alleged to have occurred between 1965 and 1990. Two of the 11 complainants were sisters who had resided with the accused at the cult’s group residence while teenagers. They were not adherents of the cult and lived at the group home only because their mother was a member and the resident housekeeper. The other complainants were believers. The trial judge dismissed an application by the accused to sever the counts related to the sisters from the other counts. The counts were tried together and each was admitted as similar fact evidence for the others.
One of the complainant sisters kept a daily diary for eight months in 1970. She began it when she was 14 years old. The day‑to‑day entries covered part of the 10‑year period when she alleged sexual abuse by the accused and physical abuse by her mother at the accused’s instigation. When the complainant left the house six years later, her mother put some of her belongings in a cardboard box in their portion of the storage area shared with other residents. The mother moved out in 1995. About 18 months later, after the accused had been indicted, another resident of the house opened the cardboard box, found the complainant’s diary and gave it to the defence. At trial, the defence sought to use the diary to contradict the complainant on the basis of entries arguably inconsistent with her evidence-in-chief, and by showing the absence of any entry chronicling physical or sexual abuse. The complainant objected and, at the voir dire into the admissibility of the diary, asserted a privacy interest. The trial judge permitted the accused to use the diary to cross‑examine the complainant on entries the defence considered probative but did not permit cross‑examination on the absence of any entries recording physical abuse by the mother or sexual abuse by the accused.
A jury convicted the accused of sexual assaults against the two sisters and five other complainants. The Court of Appeal allowed the accused’s appeal with respect to two counts but otherwise dismissed the appeal.
Held (L’Heureux-Dubé and Gonthier JJ. dissenting in part): The appeal should be allowed with respect to the counts relating to the sister who kept the diary and a new trial ordered with respect to those counts only.
Per McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.: Although evidence relating to an accused’s disposition will generally be excluded, exceptions to this rule arise when the probative value of similar fact evidence outweighs its prejudicial effect. In this case, the cogency of the similar fact evidence rests on the validity of the double inference that firstly, the accused had a situation-specific propensity to groom adolescent girls for sexual gratification by exploiting the cult’s beliefs and its domestic arrangements, and secondly, that he proceeded in that way with each complainant. Similarity and unity of the incidents involving the complainant sisters and the others lay in the accused’s modus operandi, his abuse of power and the theme of quack spiritualism. These incidents overlapped and were to some extent concurrent. This proximity in time made the evidence more cogent. The incidents were also spread over many years, demonstrating, if believed, a degree of extended consistency in behaviour. Similar fact evidence supported a finding of situation‑specific behaviour and it was thus open to the jury to draw the double inference.
That said, the trial judge was then required to consider the countervailing issue of potential moral and reasoning prejudice to the accused. The similar fact evidence had significant potential to create moral prejudice and required a high probative value to be admissible. It was inflammatory, and painted the accused as a “bad person” albeit it was not introduced for that purpose and would only incidentally have that effect. It was introduced in response to issues raised by the defence, namely consent in the case of the complainant believers and the defence that the alleged acts never happened in the case of the housekeeper’s daughters.
The combination of sex and spiritualism was inevitably inflammatory. The accused’s defence to the female complainants who were believers (religiously inspired consent) became more delicate when the jury was told that he also had sexual relations with two sisters from the age of 13 who were not disciples but simply residents of his household. Similarly, the accused’s denial of sexual activity with the housekeeper’s daughters may have lost much of its force in light of the admitted sexual touching of other adolescent girls, to which the only defence was consent (vitiated, so the jury must have found, by the abuse of authority).
With respect to reasoning prejudice, the danger was that the jury might become confused by the multiplicity of incidents, and become distracted by the cumulative force of so many allegations from their task of deciding carefully each charge one by one. However, the accused was not taken by surprise nor limited in his response to any allegation and the jury was properly warned about the prohibition on inferring guilt from general disposition.
After weighing up probative value against prejudice, the trial judge concluded that both the prejudicial effect and the probative value of the similar fact evidence were “significant”, but that in the end the probative value prevailed. There is no reason to interfere with that conclusion. Absent error in principle, the decision on weighing probative value against moral and reasoning prejudice rests with the trial judge.
While there was some evidence of opportunity for collusion or collaboration and motive, and of communication among complainants, the evidence was not strong, and the trial judge was right to let the question of collusion go to the jury. The trial judge adequately outlined the defence and did not err by failing to review for the jury each of the alleged dissimilarities in the acts. The dissimilarities clearly emerged in the narrative of each count by each complainant and did not detract very significantly from the probative value of the evidence on the issue of modus operandi.
Cross-examination of the complainants was of critical importance. Evidence relevant to a defence can be excluded only if its prejudicial effect substantially outweighs its probative value. Cross‑examination in a sexual assault case may distort the search for truth if it puts the complainant on trial and limitations have been imposed by the courts to protect a complainant’s privacy interest, particularly where cross-examination may be directed to rape myths. This concern lay at the heart of the trial judge’s ruling. The cogency of the proposed cross‑examination rested on the unspoken premise that sexual assaults, if they occurred, would have been recorded in the diary.
The diary was not wrongfully taken. The real issue concerned the privacy status of the information it contained. Privacy rights have been disentangled from their roots in private property and a loss of physical possession will not necessarily defeat a privacy interest. Sections 278.l to 278.9 of the Criminal Code address production of personal information and had no application to the admissibility or use of the diary. Having rightly rejected the applicability of ss. 278.1 to 278.9, the trial judge erred on the voir dire by applying principles drawn from O’Connor related to production of documents to determine the admissibility and use of the diary in cross-examination. The balancing of interest test set out in O’Connor applicable to questions of production is not the test for the scope of cross‑examination.
The complainant’s privacy interest did not substantially outweigh the accused’s right to test the complainant’s memory by cross-examination on the absence of entries in the diary recording abuse. The omission of entries recording sexual abuse would be probative only if the defence established its premise, namely that there was a reasonable expectation that recordings of abuse, if abuse occurred, would have been made by the complainant. At the time of the trial, the complainant was an adult. Arguable contradictions between her testimony‑in‑chief and her diary nourished the defence argument that the diary and the omissions provided the more accurate picture of events. The absence of entries recording abuse was potentially probative of the complainant’s credibility. The defence was rightly precluded from asking the jury to assume that if abuse had occurred it would have been recorded, but it does not follow that the defence should have been precluded from attempting to demonstrate its premise before the jury using the diary. The court ought not to have assumed how the complainant would respond to the cross‑examination. The fact that the entries were mundane or that the complainant’s lifestyle or reputation would not be on trial does not eliminate the complainant’s privacy interest but it lessens its weight.
It cannot be said that the verdict on the charges related to this complainant would necessarily have been the same had the cross-examination been permitted, and the curative proviso is therefore inapplicable. An order for a new trial on the charges related to this complainant does not cast doubt on the correctness of the other verdicts. The appeal is therefore dismissed with respect to the other complainants.
Per L’Heureux-Dubé and Gonthier JJ. (dissenting in part): The defence should have been required to return the diary to the complainant and to seek its production through the proper statutory channels. The complainant did not abandon her property interest in her diary. Where an individual retains a privacy interest in her property, she cannot be deemed to have abandoned the property. A party alleging abandonment of private goods faces a significant burden of proving a giving up, a total desertion and an absolute relinquishment of the goods. Here, the complainant’s property interest necessarily encompassed her privacy interest, and thus the accused’s argument that he did not illegally possess the diary because the complainant had abandoned it is without merit. Some of the concerns posed at the production stage of documents may not be present if the accused has already examined the contents of the record to be produced, but this is not an adequate reason to allow accused persons to benefit from unlawfully or wrongfully circumventing the statutory scheme. Such a result frustrates the purpose of the legislation and the constitutional rights of sexual assault victims.
The trial judge correctly refused the defence’s cross‑examination on the absence of references to abuse in the diary. Defence evidence is only admissible if its probative value substantially outweighs its prejudicial effect. In weighing prejudicial and probative value, the trial judge must consider the complainant’s privacy and equality rights as well as the accused’s right to full answer and defence. The proposed questions on the absence of entries would have introduced a high potential of prejudice to the complainant, substantially outweighing their probative value. A teenager’s diary is high on the spectrum of records in which one has a privacy interest and the complainant had a reasonable, continuing expectation of privacy. Her diary was an outlet for personal self‑expression recording intimate details of part of her life and the fact that the entries were mundane did not lessen her privacy interest. The court does not examine the contents of a private document to evaluate a privacy interest because informational privacy derives from an assumption that all information about a person is in a fundamental way his or her own. The extensive, wide-ranging cross‑examination of much of the entire contents of the diary required to establish an absence of mention of abuse would have aggravated the violation of privacy rights. Moreover, the process of establishing the reliability of the evidence would be time‑consuming and potentially sidetrack the trial.
This Court must be sensitive to equality concerns and the policy of encouraging reports of sexual assaults. The defence’s rejection of a tailored cross‑examination was fatal. Allowing cross‑examination on the absence of entries recording abuse would have endorsed the same discriminatory beliefs that underlie the unfounded “recent complaint” myth and wrongly implied that the absence of such entries is support for a conclusion that the events were fabricated. The trial judge correctly considered the proposed cross-examination on a voir dire. The defence had a full and fair opportunity on the voir dire to lay a rational foundation for the cross‑examination but failed to demonstrate any valid reason or rational basis for the questioning. The trial judge correctly held that the probative value of the evidence was minimal, if anything. Furthermore, the right of the accused to make full answer and defence does not stand or fall on whether the accused may engage in this particular line of cross-examination.
As found by the majority, the trial judge did not err in admitting the similar fact evidence.
Cases Cited
By Binnie J.
Applied: R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56; explained: R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Mills, [1999] 3 S.C.R. 668; referred to: Sweitzer v. The Queen, [1982] 1 S.C.R. 949; R. v. B. (C.R.), [1990] 1 S.C.R. 717; R. v. C. (M.H.), [1991] 1 S.C.R. 763; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Lepage, [1995] 1 S.C.R. 654; R. v. Arp, [1998] 3 S.C.R. 339; Director of Public Prosecutions v. Boardman, [1975] A.C. 421; R. v. D. (L.E.), [1989] 2 S.C.R. 111; R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Colarusso, [1994] 1 S.C.R. 20; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. R.M. (1997), 93 B.C.A.C. 81; R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Jolivet, [2000] 1 S.C.R. 751, 2000 SCC 29.
By L’Heureux-Dubé J. (dissenting in part)
R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Plant, [1993] 3 S.C.R. 281; R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43.
Statutes and Regulations Cited
Act to amend the Criminal Code (production of records in sexual offence proceedings), S.C. 1997, c. 30, Preamble.
Canadian Charter of Rights and Freedoms, ss. 7, 8, 11(d).
Criminal Code, R.S.C. 1985, c. C-46, ss. 265(3), 278.1 to 278.9 [ad. 1997, c. 30, s. 1], 278.2(1) [am. 1998, c. 9, s. 3], 278.3(5), 278.5(2)(f), (g), 278.6(1), 686(1)(b)(iii).
Authors Cited
Black, Henry Campbell. Black’s Law Dictionary, 6th ed. St. Paul, Minn.: West Publishing Co., 1990, “abandonment”.
Brown, Ray Andrews. The Law of Personal Property, 2nd ed. Chicago: Callaghan, 1955.
LaVacca, Joyce B. “Protecting the Contents of a Personal Diary from Unwanted Eyes” (1988), 19 Rutgers L.J. 389.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. IA. Revised by Peter Tillers. Boston: Little, Brown & Co., 1983.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 3A. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1970.
APPEAL from a judgment of the British Columbia Court of Appeal (2000), 143 C.C.C. (3d) 233, 133 B.C.A.C. 121, 217 W.A.C. 121, 31 C.R. (5th) 177, [2000] B.C.J. No. 235 (QL), 2000 BCCA 83, which allowed an appeal with respect to two counts from a decision of Henderson J. but otherwise affirmed the decision. Appeal allowed in part, L’Heureux-Dubé and Gonthier JJ. dissenting in part.
Richard C. C. Peck, Q.C., David M. Paciocco and Nikos Harris, for the appellant.
William F. Ehrcke, Q.C., and Jennifer Duncan, for the respondent.
Leslie Paine and Christine Bartlett‑Hughes, for the intervener the Attorney General for Ontario.
Sheilah Martin, Q.C., and Ritu Khullar, for the intervener Women’s Legal Education and Action Fund.
Frank Addario, for the intervener Criminal Lawyers’ Association (Ontario).
The judgment of McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. was delivered by
1 Binnie J. – This appeal requires us to consider the appropriate limits on the cross-examination of a 42-year-old woman complainant about the contents of a diary she kept as a teenager at the time of alleged sexual abuse, some 27 years before the trial. We must, as well, consider the admissibility of similar fact evidence of other complainants. These and subsidiary questions arise in the prosecution of the appellant, the leader of a marginal cult called the Kabalarians, for sexual offences between 1965 and 1990 that included indecent assault, gross indecency and sexual intercourse with a person under 14 years old. At trial, the appellant was convicted by a British Columbia jury of sexual assault of his housekeeper’s two teenage daughters, one of whom is the diarist, and five other young women who were led to believe that what appeared to be sexual misconduct was in fact a religious experience. The appellant was acquitted of all charges in respect of the other complainants.
2 These convictions were upheld by the British Columbia Court of Appeal with two exceptions not relevant to the legal issues just mentioned: (2000), 143 C.C.C. (3d) 233. There is no cross-appeal on those counts. In my opinion, the appellant’s further appeal to this Court should be allowed with respect to the counts relating to one of the housekeeper’s daughters (KWG), and a new trial ordered in that respect. The appeal with respect to the other six complainants should be dismissed.
I. Facts
A. The Kabalarian Teaching
3 The Kabalarians are a secretive society whose original philosophy seems to have been reduced by the appellant to a hodge-podge of spiritual fantasies (e.g., having sex with disembodied minds). Kabalarians believe that enlightenment is reached through ascension by steps of consciousness. Sexual experience, the appellant says, is a key way to progress to the next level. Perhaps not surprisingly, the appellant preached that he, as the leader, could be instrumental in enabling young girls to reach these higher levels through sexual/spiritual contact with him. The Kabalarian teaching was summarized in part by Donald J.A. in the British Columbia Court of Appeal (citing the appellant’s factum), as follows (at para. 18):
It is the duty of parents to teach their children to develop their minds. Unbalanced minds continue after the death of a body and can be dangerous to living minds by becoming disembodied minds. A living person who is in a negative state of mind is in danger of drawing from the plane of disembodied minds. A person who is having a sexual problem could attract from the negative sexual plane of mind. That person would then need a session to remove the disembodied mind through a medium. This is referred to as “mental work” and could be performed by Mr. Parker [the founder of the Kabalarian philosophy and predecessor to the appellant] and later by [the appellant].
4 Several of the complainants described the appellant’s statements in like terms: he talked about relieving them of “a negative plane of mind”, helping the complainant to become a “medium”, assisting a complainant’s spiritual development to reach a higher plane of mind through him (since he was a “high spiritual being”), performing a “mental demonstration” (while engaged in physical sexual touching), being close to the “principle” (“universal consciousness”), developing the complainant into an “instrument” and reaching mental oneness through physical oneness. The appellant told some of them during “mental demonstrations” that their negative or disembodied plane of mind revealed that they wanted to be raped.
5 I should make it clear that the Kabalarian philosophy as such is not and never was on trial. Its relevance to this case is only as background to the distinctive sexual embellishments apparently added by the appellant. There was some evidence that these sexual embellishments were not part of Kabalarianism under the leadership of the appellant’s predecessor.
6 The appellant cautioned his “pupils” that they shared a special relationship or bond with him and should not tell anyone else. He suggested to some of the complainants that they were being subjected to sexual intercourse while they slept by the “minds” of dead priests. Many of the complainants testified that since the appellant was the spiritual leader of the Kabalarians, they believed at the time that his purpose was spiritual and not for his own sexual gratification. There was shock on the part of some when he used the word “fuck” because the Kabalarian philosophy did not permit swearing. One testified that the appellant said his “sperm was spiritual [and] that it would not make [her] pregnant”.
B. The Complainants
7 The 11 original complainants were divided into two groups by the defence for procedural purposes including assessing similar fact evidence, grouping similar defences, and the application for severance of the charges.
(1) The Housekeeper’s Daughters
8 The “G” complainants are two sisters (KWG and SG) who resided with the appellant at a group Kabalarian residence (the “Centre”) located in Vancouver. The two sisters, about a year apart in age, lived on the top floor of the house in one room with their mother, who had earlier been the housekeeper for the Kabalarians’ founder and stayed on to work with the appellant. The mother was a believer. The sisters were not. For most of the time the appellant was the only adult male in the household of 10 to 12 people. SG said they believed that if they resisted the appellant’s sexual advances they and their mother would be “kicked out” of the house. The appellant’s defence to the charges of sexual abuse of the G complainants was simply that the alleged acts never occurred. He did not testify at the trial.
(2) The Teenage Disciples
9 The “non-G” complainants did not reside with the appellant but in their own homes located close to the Centre where they went for “religious” instruction. They were believers. The situs of the alleged misconduct was at the Centre itself or at a summer camp run by the Kabalarians in the Okanagan Valley. Those counts that led to convictions generally alleged less serious offences than those alleged by the G sisters. The appellant’s defence, moreover, was different in that he conceded sexual touching occurred but argued that either the non-G complainants consented or that he reasonably believed that they had consented.
C. The Application for Severance
10 The appellant applied at trial for a severance of the counts related to the G complainants from the other complainants but this was denied by the trial judge who ruled that the 20 counts were similar fact evidence for one another and could therefore appropriately be tried together.
D. The Diary
11 One of the housekeeper’s daughters, KWG, kept a daily diary for eight months in 1970. She began it when she was 14 years old. The day-to-day entries covered part of the 10-year period (December 1966 to January 1976) when she alleged sexual abuse by the appellant and physical abuse by her mother at the appellant’s instigation. The diary made no mention of either kind of abuse. When she left the house six years later, in a hurry she says, her mother put some of her belongings in a cardboard box in a storage area shared with other residents. Over 22 years later, after the appellant had been indicted, another resident of the house stumbled across the diary (mistaking the cardboard box to be her own). Seeing KWG’s name written on the diary, she realized what it was and turned it over to the defence without alerting either KWG, the Crown or the police. The existence of the diary was not disclosed by the defence until mid-trial after KWG had completed her evidence-in-chief.
II. Constitutional and Statutory Provisions
12 Canadian Charter of Rights and Freedoms
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
11. Any person charged with an offence has the right
. . .
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
Criminal Code, R.S.C. 1985, c. C-46
265. . . .
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
. . .
278.1 For the purposes of sections 278.2 to 278.9, “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing . . . personal journals and diaries . . . .
278.2 (1) No record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of [listing designated offences] . . . except in accordance with sections 278.3 to 278.91.
III. Judgments
A. British Columbia Supreme Court __ Henderson J.
(1) Severance of the Counts / Similar Fact Evidence
13 At the trial, defence counsel applied after the non-G complainants testified and before the G sisters were examined to have the G counts severed from the counts relating to the other (original) nine complainants. The trial judge ruled the evidence to be admissible as similar facts:
In my view, the prejudicial effect of the [G] evidence is, in this case, outweighed by its probative value. The nature of the sexual acts testified to by the [Gs], their frequency, and the sorts of things said by the accused to the [Gs] will, if believed by the jury, assist them in assessing the credibility of an assertion by the accused that the other acts with the other complainants were not sexual in nature but intended only to serve a spiritual purpose. That appears to be the fundamental issue with regard to those complainants. It is said that they consented through fraud, the fraud being the misrepresentation to which I have referred.
The evidence of the [Gs] is highly relevant to that central issue as it tends to rebut a defence of an innocent non-sexual purpose and a genuine consent by the complainants.
14 Having ruled the evidence admissible as similar facts, the trial judge dismissed the severance application.
(2) Cross-examination on the Personal Diary
15 The trial judge said the threshold issue was
whether or not [KWG] has waived any interest in maintaining privacy over the information as opposed to caring about possession of the physical paper. She may have abandoned the piece of paper, she may not need it or want it anymore. That doesn’t necessarily mean she is happy to have the world know about the information that’s in there.
The trial judge also held that ss. 278.1 to 278.9 of the Criminal Code did not apply because the diary was already in the possession of the defence. No order of production was therefore either sought or required.
16 Applying the principles set out in R. v. O’Connor, [1995] 4 S.C.R. 411, the trial judge looked to the “individual pieces of information that [defence counsel] seeks to elicit and the way in which he intends to use the diary in order to determine, item by item, whether the balance is tipped in favour of the accused’s right to make full answer and defence or, alternatively, tipped in favour of preserving the continuing privacy interests of the complainant”.
17 The trial judge ruled that the appellant would be permitted to use the diary in all the ways he asked, except for two: he would not be able to cross-examine about the lack of references in the diary to KWG being beaten by her mother, nor could he cross-examine on the lack of references in the diary to the alleged sexual assaults. The appellant was permitted to use the diary in all the other ways sought, including to contradict KWG’s evidence about publicly observable events, such as school activities attended, clothing worn and events celebrated. He was permitted to use the diary to show that she expressed in it positive feelings towards the appellant. He was permitted to cross-examine KWG on the fact that the diary covered a period of eight months, when she had earlier said in her evidence that she only kept a diary for a couple of weeks. And he was permitted to cross-examine her on the fact that although she had earlier testified that the sexual acts occurred in the appellant’s den on a fairly regular basis, the diary showed that the den was undergoing major renovations which resulted in its not being used for a period of about three months in the spring of 1970.
18 In short, the appellant was permitted to cross-examine on each of the entries he considered probative, but not on the absence of entries dealing with physical and sexual abuse.
B. British Columbia Court of Appeal (2000), 143 C.C.C. (3d) 233
19 The court, per Donald J.A., dealt with the appeal as follows:
(1) Similar Fact Evidence
20 Donald J.A. concluded that the “evidence was such that a reasonable jury properly instructed could find in the words of the trial judge ‘substantial and significant similarities’ constituting a pattern and it was proper for the trial judge to let the jury use the evidence as similar facts if they chose to do so” (para. 67).
21 As to the defence objection that the trial judge should have listed the dissimilarities along with the similarities in his charge to the jury, Donald J.A. acknowledged that it “would have been preferable” (para. 68) for the trial judge to do so, but in the circumstances of this trial, it had not been necessary. Both sides’ counsel thoroughly discussed the similarities and dissimilarities and the “differences stressed by the defence were obvious and unlikely to be ignored by the jury in their deliberations on the similar fact issues. The flaw in the charge was only an imperfection not amounting in my opinion to a reversible error” (para. 69).
(2) Diary
22 The appellant contended that the restriction on cross-examining the complainant on certain aspects of her diary impeded his right to full answer and defence. He did not seek “production” under ss. 278.1 to 278.9 of the Criminal Code. Rather than a “simple balanc[ing]” of privacy rights and probative value as in an O’Connor motion for production of third party records, the trial judge should have required that the complainant’s privacy right be shown to “substantially outweigh” the defendant’s fair trial rights: R. v. Seaboyer, [1991] 2 S.C.R. 577, and R. v. Osolin, [1993] 4 S.C.R. 595.
23 Donald J.A. held that R. v. Mills, [1999] 3 S.C.R. 668, “shifted the balance away from the primary emphasis on the rights of the accused” (para. 93) and introduced a “new direction” (para. 96). Mills, he wrote, “requires a reconsideration of the position of the complainant, and in particular the equality rights of the complainant, so as to effectively guard against procedures which deny complainants equal access to and benefit of the law” (para. 93).
24 Donald J.A. agreed that there was a high privacy intrusion since questioning on the absence of entries could not be done without opening the whole diary to scrutiny (para. 87); further, the prosecution may then have been “compelled to fully review the contents to show that such reference was not in keeping with the apparent purpose of the diary” (para. 72). The complainant KWG was a “virtual prisoner” at the Kabalarian Centre and under the powerful control of the appellant. It would be “highly unlikely that she would record the abuse” (para. 86). Further, Donald J.A., after having “perused” the diary, concluded that the “style and content do not suggest that if abuse had occurred the complainant would have confided it to her diary” (para. 86).
(3) Disposition
25 The court allowed the appeal with respect to two counts because the charge to the jury did not distinguish the counts which pre-dated from those which post-dated the s. 265 amendment to the Criminal Code in 1983 that provided that the abuse of authority could vitiate consent. This error was conceded by Crown counsel. A new trial was ordered on these counts. The appeal was otherwise dismissed.
IV. Analysis
26 The appellant says that he was denied the opportunity to make full answer and defence in two important ways. First he was confronted with irrelevant evidence in the counts involving the housekeeper’s daughters, namely the so-called “similar fact” evidence of the other complainants, and vice versa. Secondly, he was denied the opportunity to use to the full the relevant evidence already in his possession, namely the diary, in his cross-examination of KWG. The existence of the diary caught her unawares after she had committed herself to a particular version of events during her evidence-in-chief and he was entitled to shake her credibility in cross-examination by demonstrating inconsistencies between her testimony and what was (or was not) recorded.
27 I will deal with these contentions and a number of subsidiary points, in turn.
A. The Similar Fact Evidence
28 It is not possible in this case to understand the full measure of the situation confronting the trial judge and counsel without saying something about the allegations made by each of the principal complainants.
29 Donald J.A. helpfully summarized the alleged “similar facts” relating to each of these complainants and, for convenience, I reproduce his description with a few minor additions and subtractions (at paras. 21-52):
K. W.-G. [KWG]
[KWG], her younger sister S.G., and her mother moved into the Centre when [KWG] was seven years old. . . .
. . .
The first incident of [the appellant allegedly] touching [KWG] occurred when she was twelve years old. He told her not to tell anyone, especially her mother.
[KWG] described numerous incidents of sexual touching in the den, the stairwell and the shower. In one incident in the den [the appellant] spoke of “removing disembodied planes of mind” and told her he was going to make her into a beautiful young lady. Acts of intercourse began when [KWG] was 13. These events occurred approximately once per month and continued until she moved out of the house [when she was about 20].
. . .
. . . At the time of the trial [KWG] had commenced civil proceedings against [the appellant] and the Kabalarian Society.
S.G.
S.G. moved into the Centre when she was six years old and resided there until she was 18. She described life at the Centre as a “living hell”.
The first incident of sexual touching occurred when she was twelve. [The appellant allegedly] tickled her and touched her breasts. After that, whenever she was alone with him he would try to touch her breasts.
When S.G. was 13 [the appellant] told her that he was thinking of making her an “instrument” and she must trust him completely. He then [allegedly] fondled her breasts and told her not to tell anyone.
Between the ages of 13 and 18, S.[G.] [allegedly] performed oral sex on [the appellant] at least 30 times. When she was 14 he performed oral sex on her and this occurred at least 50 times over the next four years. They first had intercourse when S.[G.] was 18. [S.G. ultimately had an abortion. She said the appellant was the father.]
. . .
C.K.
C.[K.]’s parents joined the [Kabalarians] when she was nine years old. [She] participated in [Kabalarian schooling] and went to the [Kabalarian Camp] in the summers.
[The appellant allegedly] kissed C.[K.] when she was 13 in September or October 1970. The next incident of sexual touching occurred in 1971. Similar incidents took place approximately four times per month, usually in the den at the Centre, until C.[K.] was about 19.
C.[K.] testified that during the touching [the appellant] told her that [it was not for his satisfaction but] to remove a condition or plane of mind that was affecting her. When she was about 16 the discussion turned to her potential to become a medium. [C.K. was a believer.]
. . .
C.[K.] ceased involvement with the [Kabalarians] at about 23 or 24 years of age.
J.V.
J.V. became a Kabalarian at age five when her mother joined the [group].
In 1972 . . . [i]t was revealed by [the appellant] that the mind of a dead priest had been raping J.V. in her sleep. [When they were alone, the appellant] touched and kissed J.V.’s breasts and told her that she was a beautiful young woman and that this experience brought her mentally closer to him and the “principle”.
A series of sexual touching incidents occurred in the den at the Centre. There was one instance of digital vaginal penetration.
J.V. testified that she did not [at the time] regard the touching as being sexual acts, but that [the appellant] was trying to help her mentally. She would not have allowed it to occur had she believed it was for his sexual gratification.
. . .
J.T.
J.T.’s parents were members of the [Kabalarians] when she was born in 1965. She attended Kabalarian [classes] until she was 21.
J.T. described an instance of sexual touching which occurred in the den at the Centre in 1984 when she was aged 19. [The appellant] performed a mental demonstration . . . whereby the voice of a priest came through [one of the women present] and indicated that J.T. had sexual “hang-ups”. [The appellant then] admonished the [dead] priest and put him to sleep. [When J.T. was alone with the appellant he] offered to “help” . . . and rubbed her breasts and placed his hand into her panties. He then placed her hand on his penis at which point J.T. said she did not wish matters to go further and he stopped. J.T. did not [at the time] believe that the acts had been for [the appellant’s] sexual gratification.
J.A.
J.A. became involved [with the Kabalarians] when she was eight years old.
There were a number of incidents of kissing and sexual touching which occurred at [the Kabalarian camp] in the summer of 1985 when J.A. was 15.
[Thereafter she met the appellant] in the den at the Centre, usually after she had requested an interview with him. During these interviews [the appellant] would [allegedly] kiss her and touch her breasts. [The appellant] told her that he was creating a bond between them and that it was a link for her to feel close to [“]the principle[”]. [She said t]his occurred approximately 25 times, extending into 1986. Her contact with [the appellant] ceased when she turned 18.
At the time of the events, J.A. did not think that [the appellant] had any sexual motivation, but believed that he was trying to assist her. She viewed him as a master and a teacher.
. . .
S.A.
S.A. was born in 1969 and her parents joined the [Kabalarians] when she was seven years old.
In 1985, after Teenage Class, [the appellant allegedly] took her into the den at the Centre and French kissed her on two or three occasions. He first touched her intimately when she was 17. S.A. had initiated the meeting because she was seeking counselling from him regarding an instance of childhood sexual abuse. [She says the appellant] cuddled her and massaged her breasts.
When S.A. was 18, she initiated a meeting because she was considering seeking professional counselling. [She says the appellant] cuddled and kissed her and placed her hand over his clothed penis. He told her the reason he was being intimate with her was because she was obsessed by a sexual plane of mind that needed to be dealt with.
At the time of the events S.[A.] believed that [the appellant] was trying to assist her. She would not have permitted him to touch her if she felt it was for his sexual gratification. [Emphasis added.]
30 The issue, as stated, is whether the testimony of the “G” sisters was improperly used as similar fact evidence in the counts involving the non-residential complainants, and vice versa. This appeal was argued at the same time as R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56, and the analysis explained in that case will be applied here.
(1) The Double Inference
31 The similar fact evidence provided by the G complainants was only circumstantial evidence in relation to the non-G counts and vice versa. As with all circumstantial evidence, the cogency of the similar fact evidence rested entirely on the validity of the inferences it could be said to support with respect to the issues in question. The Crown’s argument for its admission was that the jury could legitimately make a “double inference”, firstly that the appellant has a situation-specific propensity to groom adolescent girls for sexual gratification by exploiting pseudo-religious elements of the Kabalarian cult and/or its related domestic arrangements at the Kabalarian “Centre”, and secondly, that his character or propensity thus established gives rise to the further inference that he proceeded in that way with the complainant in each of the charges under the jury’s consideration.
32 I find unconvincing the appellant’s attempt to compartmentalize himself into spiritual leader (to the non-G complainants) and head of household (to the G complainants) and to dress that up as an important “dissimilarity”. The G complainants were obliged by their mother’s spiritual beliefs as well as her job to live in the relatively closed world of the Kabalarian cult. The appellant’s “spiritual” hold on the mother delivered her daughters into his power. Nor in my view is it significant that the G complainants were allegedly initiated into his sexual practices at an earlier age than the non-G complainants. Their live-in status simply made them available sooner.
(2) The Test
33 Handy, supra, affirms the test for admissibility of similar fact evidence set out in Sweitzer v. The Queen, [1982] 1 S.C.R. 949, and R. v. B. (C.R.), [1990] 1 S.C.R. 717. It was there held that although evidence relating to the accused’s disposition will generally be excluded, exceptions to this rule will arise when the probative value of the evidence outweighs its prejudicial effect, per McLachlin J. (as she then was) in B. (C.R.), at pp. 734-35:
The analysis of whether the evidence in question is admissible must begin with the recognition of the general exclusionary rule against evidence going merely to disposition. . . . [E]vidence which is adduced solely to show that the accused is the sort of person likely to have committed an offence is, as a rule, inadmissible. Whether the evidence in question constitutes an exception to this general rule depends on whether the probative value of the proposed evidence outweighs its prejudicial effect.
34 McLachlin J. formulated the test for admissibility of disposition or propensity evidence, at p. 732:
. . . evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.
35 The policies underlying the test, and some of the difficulties in its application, were subsequently discussed in R. v. C. (M.H.), [1991] 1 S.C.R. 763; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Lepage, [1995] 1 S.C.R. 654; R. v. Arp, [1998] 3 S.C.R. 339; and, most recently, in Handy, supra.
36 I acknowledge in this case the exceptional prejudice of the similar fact evidence. It is bad enough for a spiritual leader to be accused of taking sexual liberties with his disciples. It is a good deal worse to have the added element of child abuse. Similarly in the case of the G complainants, child abuse is made worse, if possible, when overlaid with spiritual cant.
37 In light of the principles established in the cases mentioned above, I propose to consider the admissibility of each of these incidents as “similar facts” in relation to the other incidents in terms of (a) the probative value of the evidence, (b) assessment of the potential prejudice, and (c) the weighing up of probative value versus prejudice. In doing so I will follow the steps described in Handy.
(a) The Probative Value of the Evidence
38 The initial requirement is to determine whether the similar fact evidence is indeed strong enough to be capable of properly raising in the minds of the jury the double inference contended for by the Crown in relation to the “issues in question” raised by the defence.
(i) The Strength of the Evidence, Including the Potential for Collusion
39 As the test of admissibility weighs probative value against prejudice, a question that quickly emerges is whether the Crown is able to lead cogent evidence of the alleged similar acts. In this case, the similar acts are all the subject of distinct charges. They are therefore, in any event, before the jury for a verdict. Apart from the usual issues of credibility, the appellant says there is evidence of collusion.
40 The theory of similar fact evidence turns largely on the improbability of coincidence. Collusion, by offering an alternative explanation for the “coincidence” of evidence emanating from different witnesses, destroys its probative value, and therefore the basis for its admissibility.
41 In Handy, we held that where there is an air of reality to the allegation of collusion, the trial judge, in assessing the admissibility of the similar fact evidence, must be satisfied on a balance of probabilities that the evidence is not the product of concoction. This is inherent in deciding whether, as a matter of law, the evidence has sufficient probative value to overcome the prejudice.
42 If this threshold test is passed, the jury must determine for itself what weight, if any, to assign to the similar fact evidence.
43 There was evidence of some communication among the complainants. With respect to the G sisters, this was almost inevitable. They had also kept in touch with JV. Other complainants were in touch with each other prior to trial. Civil proceedings had been commenced by the G sisters for compensation and to close down the Kabalarians. KWG expressed the hope that the appellant would “rot in Hell”.
44 The evidence here is far more speculative than in Handy. In that case, there was consultation between the complainant and the similar fact witness prior to the alleged offence about the prospect of financial profit. Here, there is some evidence of opportunity for collusion or collaboration and motive, but nothing sufficiently persuasive to trigger the trial judge’s gatekeeper function. There is no reason here to interfere with the trial judge’s decision to let the collusion issue go to the jury. He instructed the jury to consider “all of the circumstances which affect the reliability of that evidence including the possibility of collusion or collaboration between the complainants”. He defined collusion as the possibility that the complainants, in sharing their stories with one another, intentionally or accidentally allowed themselves to change or modify their stories in order that their testimony would seem more similar or more convincing. It was for the jury to make the ultimate determination whether the evidence was “reliable despite the opportunity for collaboration” or that “less weight or no weight should be given to evidence which may have been influenced by the sharing of information”.
45 While the trial judge did not specifically link the potential of collusion to the issue of admissibility, he appears to have thought collusion (as distinguished from contact) was not a serious danger. The evidence supports his decision. He was justified in letting the collusion issue go to the jury with an appropriate warning.
(ii) Identification of the Issues in Question
46 In the case of the G complainants, the appellant’s defence was that the acts described by them simply did not occur. The central issue is the actus reus and whether the appellant’s blanket denial in that regard is credible. Probative value is alleged by the Crown to be found in the distinctive exploitive techniques and cult-related promiscuity of the appellant described by the non-G complainants in the various incidents, and in the unlikelihood that absent collusion the two sisters would concoct stories having so many similarities to each other and to the other nine original non-G complainants.
47 With respect to the non-G complainants, the defence is that the sexual touching occurred but the complainants consented. The issue, thus, is whether the appellant’s exercise of spiritual authority prevented the formation of true consent (with respect to charges that predated the 1983 amendments to the Criminal Code) or vitiated consent to the extent consent was given (post-1983 counts). The appellant’s alleged exploitation of the G complainants might be thought by the jury to demonstrate sufficient situation-specific propensities for non-spiritual sex to negative the appellant’s claimed innocent “spiritual” purpose.
(iii) Similarities and Dissimilarities Between the Facts Charged and the Similar Fact Evidence
48 The cogency of the similar fact evidence in this case is said to arise from the repetitive and predictable nature of the appellant’s conduct in closely defined circumstances. There must therefore be shown a persuasive degree of connection between the similar fact evidence and the offence charged in order to be capable of raising the double inferences. The degree of required similarity is assessed in relation to the issue sought to be established and must be evaluated in relation to the other evidence in the case. If the cumulative result is simply to paint the appellant as a “bad person”, it is inadmissible.
49 The Crown’s position is that the appellant utilized a distinctively bizarre modus operandi which runs like a common thread through the incidents charged.
50 While the sexual acts themselves were not particularly distinctive, the underlying unity lies in the alleged abuse of a cult leader’s authority. It is the fantastic sales pitch and rationale developed by the appellant that could be considered “particular and distinctive” (Handy, supra, at paras. 77-79). While it is not necessary to reach for these epithets or insert catch words into the test -- as explained in B. (C.R.) -- such distinctiveness enhances probative value.
a. Proximity in Time of the Similar Acts
51 The incidents involving the G complainants and the non-G complainants overlapped and were to some extent concurrent. Proximity in time makes the evidence more cogent as it reduces the likelihood that the appellant had changed his ways. The fact the evidence related to incidents spread over 25 years demonstrated, if believed, a degree of extended consistency in behaviour.
b. Extent to Which Other Acts Are Similar in Detail to the ChargedConduct
52 Similarity does not lie in the physical sexual acts themselves (the G counts are far more serious). The incidents occurred in private places on Kabalarian premises and sexual touching began in the majority of cases when the complainants were under 18. The G complainants were the youngest, at 13 years old, although CK was only 14 and JA was 15. The similarities really lay in the modus operandi employed by the appellant to create sexual opportunities. This will be discussed below.
c. Number of Occurrences of the Similar Acts
53 There were originally 20 counts involving 11 different complainants. The appellant was convicted of 12 of the counts involving 7 complainants. There were (if believed) hundreds of incidents. There were clearly enough instances of alleged similar facts to support a finding of modus operandi or situation specific behaviour.
d. Circumstances Surrounding or Relating to the Similar Acts
54 The surrounding circumstances are united by the allegation of gross abuse of power by a cult leader. The spiritual theme is more dominant in the non-G counts because “spiritualism” was the source of the appellant’s power over the complainants who did not live under his roof. Nevertheless, the “spiritual” theme surfaced in the testimony of KWG (“removing disembodied planes of mind”) and SG (being made an “instrument”). For example SG, one of the housekeeper’s daughters, testified as follows:
I can’t remember how old I was, but I would say I was around 17 or so and [the appellant] brought me, told me to meet him in the den or brought me into the den and then [another resident] came who is what they called their instrument. He proceeded to have a mental demonstration and through the mental demonstration they picked up a disembodied plane off me that had a desire to be raped. And then they brought out a couple of other ones, but that one is one I remembered because when she left [the appellant] told me that I must have had a desire to be raped.
55 The combination of spiritualist imagery (achieving higher states of awareness) and horror stories (invasion of young girls by disembodied minds), and the supposed prophylactic power of the appellant’s sexual touching to ward off these horrific threats is, to say the least, distinctive.
56 Within the Kabalarian Centre, the appellant, as leader, exercised predominantly secular power over his housekeeper’s teenaged daughters. However, this secular power derived from their physical presence dictated by their mother’s spiritual adherence to the cult. Their availability, and his willingness to exploit it, was equally part and parcel of his alleged fantasy world.
57 The jury might reasonably think that abuse of power to obtain sexual gratification at the expense of adolescent girls who were to a greater or lesser extent in his charge over a period of 25 years shows a sexually manipulative personality with a spiritualist twist that goes beyond “general” disposition or “mere” propensity (“bad personhood”) which would foster a “forbidden type of reasoning” from bad personhood to guilt: Director of Public Prosecutions v. Boardman, [1975] A.C. 421 (H.L.), at p. 453. The distinctive spiritualist colouration is a strong unifying factor. So is the age of the majority of complainants when initiated, and the insistence on confidentiality even though the appellant’s conduct in the non-G cases was ostensibly cult-sanctioned, and therefore nothing to be ashamed of. More understandably, the G complainants were also told to keep silent.
58 A jury might reasonably conclude that the appellant’s behaviour in these different settings was sufficiently situation specific to warrant the drawing of the double inferences.
e. Any Distinctive Feature(s) Unifying the Incidents of the Similar Acts
59 The appellant contends that the trial judge erred in failing to appreciate the distinctive dissimilarities as between the G and non-G complainants, and in failing to bring some of the dissimilarities already mentioned to the attention of the jury.
60 In my view, this objection advocates an excessively mechanical approach. The judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always be exaggerated and multiplied. This may result in distortion: Litchfield, supra. At an excessively macroscopic level of generality, on the other hand, the drawing of similarities may be too facile. Where to draw the balance is a matter of judgment. In this case, for the reasons already given, the “differences” urged by the appellant do not have the importance he asserts. The defence, as discussed earlier, wants to compartmentalize the appellant into roles. I do not think this is realistic. The Kabalarian cult created a closed domestic and “spiritual” system under the appellant’s authority to which all of the complainants, to a greater or lesser extent, were subject.
61 The appellant objects that not only did the trial judge fail to take into account distinctive dissimilarities in ruling on admissibility, but having admitted the similar fact evidence, he failed to point out adequately the dissimilarities in his instructions to the jury. On this point, as well, I agree with Donald J.A. The trial judge was not required to sum up the two sides of an artificially constructed ledger as contended for by the appellant. It was open to him to do so, if he considered it helpful, but in the circumstances, it was not essential. The dissimilarities did not detract very significantly from the probative value of the evidence on the issue of modus operandi, and clearly emerged in the narrative of each count by each complainant. The differences were skilfully advocated by defence counsel in his closing address. The trial judge quite adequately outlined the nature of this aspect of the appellant’s defence to the jury.
f. Intervening Events
62 There were no intervening events of significance.
(iv) Conclusion with Respect to Probative Value
63 The trial judge was correct to conclude that the similar fact evidence was capable of raising the double inferences in relation to the modus operandi which was put forward as an answer to the different defences in the cases of the G complainants and the non-G complainants.
(b) Assessment of the Potential Prejudice
64 Under this heading, it is necessary to consider various elements of prejudice including the danger that the jury might be confused by the multiplicity of incidents and put more weight than is logically justified on the similar act testimony (“reasoning prejudice”) or by convicting the appellant based on nothing more than bad personhood (“moral prejudice”): Handy, supra, at para. 31.
(i) Moral Prejudice
65 The “heavy prejudice” mentioned by McLachlin J. in B. (C.R.) is not the risk of conviction. It is, more properly, the risk of an unfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. Here the similar act evidence undoubtedly paints the appellant in a discreditable light, but it is not introduced for that purpose and will only incidentally have that effect. It is introduced in response to issues raised by the defence, namely consent in the case of the non-G complainants and the defence that the alleged acts never happened in the case of the G complainants.
66 The combination of sex and religion was inevitably inflammatory, and the juxtaposition of the G complainants and the non-G complainants afforded reciprocal aggravation as well as mutual insight. The sheer cumulative number of alleged incidents contributed to the moral prejudice.
67 The jury, of course, was properly warned about the prohibition on reasoning from general disposition or character to guilt: R. v. D. (L.E.), [1989] 2 S.C.R. 111, at p. 128. The jury seems to have heeded the warning. Had its members proceeded on the basis of moral prejudice, it is unlikely they would have acquitted the appellant with respect to four of the non-G complainants, including CK, an emotionally vulnerable woman who at the relevant time seems to have been suffering from postpartum depression.
(ii) Reasoning Prejudice
68 The danger is that the jury may become confused by the multiplicity of incidents, and become distracted by the cumulative force of so many allegations from their task of deciding carefully each charge one by one.
69 In Handy, a complicating factor was that the jury was asked to consider seven allegedly similar acts but these acts were not before them as charges. There was thus a danger that the jury might mix up matters of consideration (the similar acts) with matters of decision (the charge). Here the severance motion having failed, the jury had before it for decision each of the 20 counts.
70 The logistical problems confronting an accused where the similar acts are not before the court as charges do not apply here. The appellant was not taken by surprise, nor was he limited in his response to each similar fact by the collateral issue rule. Each incident was explored from the defence perspective to the extent the defence considered it to be in its interest to do so.
(iii) Conclusion on the Prejudice Issue
71 In my view, the similar act evidence has significant potential to create moral prejudice. The appellant’s defence to the non-G complainants (religiously inspired consent) becomes more delicate when the jury is told that he also had sexual relations with two sisters from the age of 13 who were not Kabalarian disciples but simply residents of his Kabalarian household. The atmosphere of the case is redolent of quack spiritualism and this would clearly disturb a Canadian jury. Similarly, the appellant’s denial of abuse of the G sisters may lose much of its force in light of the admitted sexual touching of other adolescent girls, to which the only defence is consent (vitiated, so the jury must have found, by the abuse of authority). I would adopt in this connection what was said by McLachlin J. in B. (C.R.), supra, at p. 735:
. . . where the similar fact evidence sought to be adduced is prosecution evidence of a morally repugnant act committed by the accused, the potential prejudice is great and the probative value of the evidence must be high indeed to permit its reception.
72 I do not think the phrase “high indeed” is intended to signal a superadded component to the balancing test. It merely emphasizes the potentially poisonous nature of the similar act evidence and the correspondingly high probative value required to overcome it.
(c) Weighing up Probative Value Versus Prejudice
73 In the weighing up of probative value versus prejudice, a good deal of deference is inevitably paid to the view of the trial judge: B. (C.R.), supra, at p. 733. This does not mean that the trial judge has a discretion to admit similar fact evidence whose prejudicial effect outweighs its probative value, but it does mean that the Court recognizes the trial judge’s advantage of being able to assess on the spot the dynamics of the trial and the likely impact of the evidence on the jurors. These are evidentiary issues on which reasonable judges may differ and, absent error in principle, the decision should rest where it was allocated, to the trial judge. In this case the trial judge’s view has been endorsed by a unanimous Court of Appeal.
74 The trial judge concluded that both the prejudicial effect and the probative value of the similar fact evidence were “significant”, but that in the end the probative value prevailed. I see no reason to interfere with that conclusion. The appeal on that ground must therefore be dismissed.
B. Limiting the Scope of Cross-examination
75 The second principal ground of appeal has to do with the limited cross-examination permitted by the trial judge on KWG’s diary.
76 The critical importance of cross-examination is not doubted. The appellant stood before the court accused of crimes by numerous complainants but he was presumed to be innocent of each and every count. All of the alleged sexual misconduct, by its very nature, was in private. At trial, it was his word against the credibility of his accusers, individually and (by virtue of the similar fact evidence) collectively. If the complainants were untruthful about what happened in the privacy of their encounters, the most effective tool he possessed to get at the truth was a full and pointed cross-examination. The general principle was stated in Seaboyer, supra, per McLachlin J., at p. 611:
Canadian courts, like courts in most common law jurisdictions, have been extremely cautious in restricting the power of the accused to call evidence in his or her defence, a reluctance founded in the fundamental tenet of our judicial system that an innocent person must not be convicted. It follows from this that the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law. [Emphasis added.]
It has been increasingly recognized in recent years, however, that cross-examination techniques in sexual assault cases that seek to put the complainant on trial rather than the accused are abusive and distort rather than enhance the search for truth. Various limitations have been imposed. One of these limits is the privacy interest of the complainant, which is not to be needlessly sacrificed. This was explored by Cory J. writing for the majority in Osolin, supra, at pp. 669 and 671, as follows:
A complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system. Yet a fair balance must be achieved so that the limitations on the cross-examination of complainants in sexual assault cases do not interfere with the right of the accused to a fair trial.
. . .
In each case the trial judge must carefully balance the fundamentally important right of the accused to a fair trial against the need for reasonable protection of a complainant, particularly where the purpose of the cross-examination may be directed to “rape myths”. [Emphasis added.]
77 I underline the reference to “rape myths” because in my view it is a concern about a potential revival of the shibboleth of “recent complaint” in sexual assault cases rather than a privacy concern as such, that lies at the heart of the trial judge’s ruling.
78 In Seaboyer, the accused sought to cross-examine the complainant on her sexual conduct on other occasions to explain the “bruises and other aspects of the complainant’s condition which the Crown had put in evidence” (p. 598). In Osolin, the accused sought to cross-examine a notation in the complainant’s medical record of a concern she had expressed to her therapist that her attitude and behaviour may have influenced the accused to some extent. This case is different. The focus is not private information as such because, as stated, the trial judge allowed cross-examination by the defence on each of the specific diary entries the defence sought to utilize. The defence objection is to the restriction on its ability to cross-examine on the significance (if any) of what was not recorded. It is common ground that KWG’s diary contains no references to beatings by the mother or to sexual abuse by the appellant.
79 The cogency of this line of questioning rested on the premise that if these assaults had happened, they would have been recorded, and because the events were not recorded, they did not happen. That, in the Crown’s view, is where one of the “rape myths” surfaces. The trial judge agreed:
In essence, [the appellant] wants to go to the jury and argue that the witness has made no “complaint”, if I may use that word, to her private, confidential diary about the sexual assaults that she now testifies to.
. . .
[Counsel for KWG] argues strongly that there is no probative value in a lack of complaint in these circumstances, and that to allow cross-examination and argument on the issue is premised upon a discriminatory belief or bias.
80 The trial judge’s trade-off of permitting questions on actual entries but disallowing questions on the absence of entries was criticized in about equal measure by the appellant and the Criminal Lawyers’ Association on the one hand, who thought it too restrictive on the defence, and on the other hand by the Crown and the Women’s Legal Education and Action Fund (“LEAF”), who thought it went too far against the complainant.
81 The Crown and LEAF took the position that KWG’s diary was and remained her property, and that the appellant came into possession of it without colour of right. That being the case, the trial judge ought to have ignored the reality of the appellant’s possession (a sort of constructive dispossession) and required the appellant to make an application for compelled production of documents under ss. 278.1 to 278.9, just as if KWG rather than the appellant had possession of it.
82 I will deal with these points in turn.
(1) Surprise Disclosure of the Diary
83 In her evidence-in-chief and in the initial cross-examination KWG committed herself to having experienced a profoundly unhappy childhood (a “chamber of horrors” is how the defence put it, somewhat sarcastically), lack of friends at school, prohibition on participation in extracurricular school activities, and not being allowed to wear ordinary teenager clothing. All of this was the background to alleged constant physical abuse by the mother and alleged sexual abuse by the appellant, the latter occurring mainly in the appellant’s den at the Centre.
84 She was asked by the defence about the possible existence of a diary and she said she thought she had received one as a present at Christmas in her early teens, but had only made entries for two weeks or so.
85 At this point in the trial, counsel for the defence flourished KWG’s original diary which she had not seen for 22 years, and announced that it contained day-by-day entries for a period of eight months (not the two weeks she had recalled) commencing January 1970, in the midst of the period of alleged abuse. It recorded what KWG herself described as “mundane” entries about schoolmates, participation in school functions, family outings to see films, Easter presents and some positive references to the appellant (e.g., “Stayed home from school today and had a nice talk with Ivon. He makes you want to work harder”). The defence wished to raise a doubt about the reliability and completeness of KWG’s memory by contradicting her testimony with what the defence viewed as inconsistent entries written under her own hand in the diary, and the omission of any entry chronicling physical or sexual abuse.
86 KWG’s response to the surprise disclosure of her 1970 diary was to obtain a short adjournment, and to retain her own counsel who argued that (1) the diary was the property of KWG and should be returned forthwith and (2) thereafter dealt with under the documentary production provisions of ss. 278.1 to 278.9 of the Criminal Code.
(2) Wrongful Possession of the Diary
87 KWG testified on the voir dire that she did “not at all” intend to give up her privacy rights. She was “appalled” and wanted the diary and all the copies returned to her as the defence had no right to “the little bit of privacy that [she] had”. On cross-examination, KWG described the diary entries as “very mundane”, “[b]ut it’s still mine. . . . I don’t understand what that has to do with anything. This is still mine. Whether it’s mundane or exciting or boring, it’s still mine”. The trial judge found that KWG had never waived or abandoned her privacy interest in the diary and I agree with him.
88 The voir dire included a lengthy legal debate about whether KWG had or had not abandoned her property interest in her diary, and whether the appellant’s possession of it amounted to conversion. I do not think KWG was illegally deprived of possession of the diary (unlike the Chinese restaurateurs whose safe containing private documents was stolen by thieves in R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10). She simply left it behind in a common storage room with other possessions no longer required for day-to-day living. When her mother forwarded her possessions to her in 1995, the diary was not among them. When the diary fell into the appellant’s possession 22 years after KWG left home, it was not a “wrongful” taking in any legal sense, although I agree with KWG that it underlined the extent of his unwelcome access to KWG’s private life as a by-product of her mother’s adherence to the cult.
89 I do not propose to pursue the property ownership debate. The issue for present purposes is not the “ownership of the diary” (which could be the subject of a civil cause of action) but the status of information contained within the diary. Return of the diary, as proposed by my colleague L’Heureux-Dubé J. at para. 161, would seem to me to shut the barn door after the horse had escaped.
90 Modern privacy rights have been expanded by disentangling them from their traditional roots in private property. At one time, privacy interests could often be effectively protected only by property-based concepts since the ability to prohibit strangers crossing property lines (as for example to gain access to one’s home) or get their hands on physical objects (including documents) was tantamount to controlling the private information contained therein. If the rights of private property were enforced, there was likely no risk of exposure of related privacy interests.
91 Technology has incrementally separated the close link between property and privacy. A great expansion in privacy rights was possible when privacy interests no longer depended on finding a property intrusion. The absence of a physical intrusion no longer eliminated a corresponding privacy interest, as this Court recognized most notably in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, and R. v. Dyment, [1988] 2 S.C.R. 417. The treatment of personal records in ss. 278.1 to 278.9 is built on the premise that a person’s reasonable expectation of privacy in personal information in documents is not necessarily inconsistent with a third party’s property interest in the actual physical documents, as for example with documents held by mental or physical health services personnel. Moreover, privacy interests are not lost when the adverse physical possession is itself wrongful (as in the case of financial records seized by the police from the stolen safe in Law, supra) or for a limited purpose (as with the blood and urine samples given for medical purposes and subsequently seized by the police in Dyment, supra, and R. v. Colarusso, [1994] 1 S.C.R. 20).
92 A property interest may reinforce the reasonable expectation of privacy, where the physical ownership and the privacy interest coincide, but loss of physical possession or ownership will not necessarily defeat a person’s privacy interest in personal information contained in the document in question.
93 Our concern here is with the privacy interest, not the property interest.
(3) Applicability of Sections 278.1 to 278.9 of the Criminal Code
94 Sections 278.l to 278.9 on their face address the production not the use or admissibility of personal information, as stated by Parliament itself in the Preamble (S.C. 1997, c. 30):
. . .
WHEREAS the Parliament of Canada recognizes that the compelled production of personal information may deter complainants of sexual offences from reporting the offence to the police and may deter complainants from seeking necessary treatment, counselling or advice;
WHEREAS the Parliament of Canada recognizes that the work of those who provide services and assistance to complainants of sexual offences is detrimentally affected by the compelled production of records and by the process to compel that production;
AND WHEREAS the Parliament of Canada recognizes that, while production to the court and to the accused of personal information regarding any person may be necessary in order for an accused to make a full answer and defence, that production may breach the person’s right to privacy and equality and therefore the determination as to whether to order production should be subject to careful scrutiny; . . . [Emphasis added.]
95 The text of ss. 278.1 to 278.9 that follows is consistent with such a purpose. Counsel for KWG at trial and LEAF before this Court, argued that the machinery of ss. 278.1 to 278.9 can be put into reverse, i.e., it contemplates taking documents already in the hands of the defence and restoring these to the complainant, thus requiring the defence to make a fresh application for the document just removed from its possession. In my view, this interpretation is unduly contrived and does violence to the statutory language. It draws the alleged purpose of ss. 278.1 to 278.9 too widely (certainly much more widely than the preambular language) and presupposes that the court can rewrite the text of the statute to accord with the court’s own extrapolation of Parliament’s purpose. This cannot be correct. Here the state is not using its coercive power to compel production in ways which invoke s. 8 of the Charter (“unreasonable search or seizure”). Nor does the present case raise Parliament’s specific concerns in ss. 278.1 to 278.9 about protecting the confidential relationship of a patient-therapist, nor the encouragement of victims of sexual assault to seek professional treatment, and in turn not to discourage reporting of sexual offences (see s. 278.5(2)(f) and (g)).
96 The simple fact is that the defence had possession of the diary. It was not engaged in a “fishing expedition”. The issue for the trial judge was the admissibility of the contents. Sections 278.1 to 278.9 nowhere refer to “admissibility” or “evidence”, and understandably so, for as L’Heureux-Dubé J. pointed out in O’Connor, supra, at paras. 164-66, the considerations governing production and admissibility are quite different. To treat production as a proxy for admissibility would complicate proper hearings under ss. 278.1 to 278.9, where trial judges proceed on the basis that the issue at the early stage is only production. Admissibility is properly left to be determined later when the matter is ripe for decision.
97 The procedural machinery set out in ss. 278.1 to 278.9 also cuts against LEAF’s argument. Assuming that KWG’s diary is a “record” that falls within the scope of ss. 278.1 to 278.9, LEAF would have the appellant under s. 278.3(5) serve notice and a subpoena on himself, i.e., as “the person who has possession or control of a record”, for an in camera hearing in which the presiding judge would decide whether or not to review the diary in whole or in part because, ex hypothesi, the applicant does not know the contents of the records which in theory he seeks but in reality is already in his possession. The judge may then determine whether the record should be “produced to the accused” (s. 278.6(1) (emphasis added)), i.e., to the person (indeed the only person) who already possesses it. In my view, it would be undesirable to twist the language of ss. 278.1 to 278.9 as suggested by LEAF. The limits of Parliament’s intention, as expressed in the language it has used, should be respected.
98 This conclusion does not advance the appellant’s position very far. As the Crown and LEAF point out, ss. 278.1 to 278.9 sprang from a recognition of privacy and equality interests previously outlined in common law and Charter cases such as O’Connor, Seaboyer and Osolin. I agree. The same legal principles are quite apt to supply the proper solution to this appeal.
(4) The Issue Here is Admissibility of Evidence, Not Production and Disclosure
99 The confusion between production (O’Connor) and admissibility (Osolin) took hold at an early stage of the voir dire in this case.
100 Having rightly rejected the applicability of ss. 278.1 to 278.9 on the ground that there was no issue here of production or disclosure, the trial judge prefaced the opening of submissions on admissibility as “what I’ll call an O’Connor application at this stage”.
101 Although well aware of Seaboyer (1991) and Osolin (1993), the trial judge (and eventually the Court of Appeal) seems to have concluded that these earlier authorities had been overtaken by this Court’s subsequent pronouncements in O’Connor (1995). I do not agree that O’Connor can substitute for Osolin or indeed that the two tests are equivalent or interchangeable.
102 The trial judge heard several days of argument from counsel for KWG as well as counsel for the prosecution and the defence on the use that would be made of KWG’s diary in cross-examination before the jury. Much of this argument was directed explicitly to various dicta in O’Connor, supra. In his ruling on the permissible scope of the cross-examination, the trial judge “applied” the O’Connor principles:
The five criteria set out in [O’Connor], a decision of the Supreme Court of Canada, have application to the stage of a proceeding like this where production of a document is being sought. However, I am quite satisfied that those criteria should also be taken into account and applied when one is considering, not the question of production, but cross-examination. Referring to the headnote, those criteria are:
First, the extent to which the record is necessary for the accused to make full answer and defence;
Second, the probative value of the record in question;
Third, the nature and extent of the reasonable expectation of privacy vested in that record;
Fourth, whether production of the record would be premised upon any discriminatory belief or bias;
And fifth, the potential prejudice to the complainant’s dignity, privacy, or security of the person that would be occasioned by a production of the record in question. [Emphasis added.]
103 In my view, the trial judge erred in extrapolating the O’Connor test from the issue of production of information not previously disclosed to the defence and applying it to the admissibility (or use in cross-examination) before the jury of evidence already in the possession of the defence.
104 A simple “balancing of interests” test (O’Connor, supra, at paras. 129 and 150) cannot be equated to “substantially outweighs” (Seaboyer and Osolin). Under O’Connor, the default position is that the third party information is not produced to the defence. Under Seaboyer and Osolin, the default position is that the defence is allowed to proceed with its cross-examination.
105 It is important to keep in mind the procedural context of O’Connor. L’Heureux-Dubé J., noted at paras. 101-2, that whatever duty of disclosure rested on the Crown, it “does not extend to third parties. . . . [T]here is no duty on third parties to disclose”. Lamer C.J. and Sopinka J. agreed: “[T]hird parties have no obligation to assist the defence” (para. 19). Thus, concluded L’Heureux-Dubé J., at para. 131:
[S]eeking to invoke the power of the state to violate the privacy rights of other individuals, the applicant must show that the use of the state power to compel production is justified in a free and democratic society.
“The essence of privacy”, L’Heureux-Dubé J. emphasized, at para. 119, “is that once invaded, it can seldom be regained”. Thus, production would only be ordered where the salutary effects outweighed the deleterious effects of disclosure (para. 150). This rationale simply does not apply to evidence already lawfully in the possession of the defence.
106 The Court in O’Connor made clear, at para. 164, that its test for production was “not synonymous” (emphasis added) with the test for admissibility at trial, which would continue to be governed by Seaboyer and s. 276 of the Criminal Code.
(5) The Proper Limits of Cross-examination
107 In Seaboyer, McLachlin J. noted that “our courts have traditionally been reluctant to exclude even tenuous defence evidence” (p. 607) and affirmed that the defence has a right to use evidence in its possession unless its prejudicial effect “substantially outweighs” (p. 611) its probative value. The reason for the different orientation is apparent. In the O’Connor situation, the accused is not entitled to disclosure, and seeks the intervention of the state to put aside the privacy of a third party complainant. In the Seaboyer situation, the state is asked by the complainant to intervene against the accused to deny him the use of information already in his possession. It is true that some of the same values must be weighed (e.g., full answer and defence, privacy, equality rights, etc.) but both the purpose and the context are quite different.
108 The Seaboyer test was affirmed in Osolin, supra, per Cory J., at p. 671:
Generally, a complainant may be cross-examined for the purpose of eliciting evidence relating to consent and pertaining to credibility when the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice which might flow from it. Cross-examination for the purposes of showing consent or impugning credibility which relies upon “rape myths” will always be more prejudicial than probative. Such evidence can fulfil no legitimate purpose and would therefore be inadmissible to go to consent or credibility.
109 The issue for the trial judge here, therefore, was whether cross-examination on the diary would create prejudice to the complainant that “substantially outweighed” its potential probative value to the appellant, and in that regard whether cross-examination on the absence of entries recording abuse relied upon “rape myths” or the equivalent.
(6) KWG’s Privacy Concerns
110 Compelling KWG to answer questions about entries made in her teenage diary would force her to testify about aspects of her private life and negate her desire to determine for herself when, how and to what extent personal and private information is disclosed to others. It is not necessary for present purposes to address the question whether, and to what extent, these privacy interests are anchored in s. 7 of the Charter. In Osolin itself, the invasion of the complainant’s privacy was held protected under s. 15 and s. 28 of the Charter (p. 669). Its protection in this case required no more than the fundamental requirement at common law that “the probative value of evidence must be weighed against its prejudicial effect” (Osolin, p. 665). Reference was made in that connection to Wigmore on Evidence, vol. IA (Tillers rev. 1983), at pp. 969 and 975, and to Morris v. The Queen, [1983] 2 S.C.R. 190, at p. 201.
111 The purpose of the voir dire, according to the trial judge, was to determine “the circumstances under which what appears to be [KWG’s] diary came into the accused’s possession”. KWG’s counsel took the position that KWG could not be asked about the content of the diary even in the voir dire called for the purpose of determining its admissibility and this limitation was accepted by defence counsel who said he took the warnings from KWG’s counsel “to heart”.
112 The fact KWG conceded that the diary contained “mundane” sorts of information is not, in my view, fatal to her wish to keep private the entries she did choose to record in her private diary, but the fact KWG freely acknowledged that her teenage diary was not written in any kind of confessional spirit does go to the weight of the privacy interest.
113 On this point, however, it is KWG, not the appellant, who might be expected to complain of the trial judge’s ruling. He allowed the defence to put to KWG whatever entries it wished where specific entries arguably contradicted KWG on some of the statements she had made in her evidence-in-chief.
114 All that was left to explore was what she did not write down. Cross-examination on that point would be a high-risk tactic for the defence capable of generating some devastating answers, to put it mildly. However, the appellant considered pursuit of that point to be crucial to his defence.
(7) Omission of Entries Recording Abuse
115 We arrive then at the appellant’s real grievance. He was not allowed to challenge the credibility of KWG based on the absence of any entries dealing with physical or sexual abuse in an important and relevant eight-month period in 1970.
116 In fact, the jury was never told the omissions existed.
117 The Crown contends that the effect of this restriction was marginal at best:
The Respondent submits that the non-recording of an event is generally of much lower probative value than the recording of an event. If an event is recorded which a witness denies, that contradiction cries out for an explanation. Where an event is not recorded, however, that fact is not in itself logically inconsistent with the event having occurred. [Emphasis in original.]
118 The Crown’s argument assumes the point in issue, of course. If we assume KWG intended a type of diary that would not be expected to contain entries recording abuse, the omissions would be irrelevant. It is that assumption, however, which the defence sought to explore in cross-examination.
119 The courts have recognized, no doubt belatedly, that certain techniques of cross-examination traditionally employed in sexual assault cases have distorted rather than advanced the search for truth. This case illustrates one of the problem areas. The omission to record some piece of information is only probative if there is a reasonable expectation that such a record would be made (R. v. R.M. (1997), 93 B.C.A.C. 81, at paras. 45-49; Wigmore on Evidence, vol. 3A (Chadbourn rev. 1970), at para. 1042). A pilot’s log will record relevant flight information, because that is its purpose, but not what he or she had to eat for breakfast over the Atlantic Ocean. Hospital records will include medical observations but not what television station the patient happened to be watching that evening. What was objectionable about the defence approach here was that it overlooked (or perhaps resolutely resisted) the need to lay before the jury a rational basis for the inference it ultimately wished to draw, namely that the non-recording of a certain type of information was circumstantial evidence that the alleged abuse never happened.
120 The problem lies in the unspoken and unproven premise. KWG was obviously under no legal or other duty to record such observations. She clearly did not follow a regular practice of making such entries because no entries of any kind of abuse were made. All sides agree that the diary entries were “mundane”. Why assume that a diary devoted to “mundane” entries would necessarily report on episodes of physical and sexual abuse? On what logical basis would such a non-record give rise to an inference of testimonial deficiency or fabrication? In the absence of some evidentiary basis for the premise that abuse ought to have been recorded, the result of allowing the cross-examination to proceed as proposed by the defence (“the entire contents are fair game”) would be to allow the defence to go to the jury at the end of the trial and to point to the absence of entries in an effort to suggest – nod nod wink wink – that women and children who are sexually and physically abused do not suffer in silence, but must and do confide their inner hurt even if only to their private diaries.
121 While in most instances the adversarial process allows wide latitude to cross-examiners to resort to unproven assumptions and innuendo in an effort to crack the untruthful witness, sexual assault cases pose particular dangers. Seaboyer, Osolin and Mills all make the point that these cases should be decided without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma: Mills, supra, at paras. 72, 117-19; R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43, at para. 63. This is the law and the trial judge was right to apply it.
(8) Legitimate Scope for Cross-examination
122 This does not turn persons accused of sexual abuse into second-class litigants. It simply means that the defence has to work with facts rather than rely on innuendoes and wishful assumptions. This means, in turn, that the defence should not be prevented from getting at the facts. As L’Heureux-Dubé J. wrote in O’Connor, supra, at para. 124:
Although the defence must be free to demonstrate, without resort to stereotypical lines of reasoning, that such information is actually relevant to a live issue at trial, it would mark the triumph of stereotype over logic if courts and lawyers were simply to assume such relevance to exist, without requiring any evidence to this effect whatsoever. [Emphasis in original.]
123 At the time of the trial, KWG was a mature and well-spoken 42-year-old adult. She was (or had been) an airline stewardess. She was not a child in need of any special protection from the court. There were arguably some contradictions between her testimony as an adult and what she had written as a teenager 27 years before, as the trial judge recognized. These arguable contradictions nourished the defence argument
that the diary (including omissions) provided a more accurate picture of events in 1970 than KWG’s unaided recollection. I therefore do not, with respect, agree with my colleague L’Heureux-Dubé J., at para. 176, that cross-examination on such issues would serve “no legitimate purpose”.
124 A witness’s powers of recall and the reliability of his or her memory are important issues in a trial of events that took place 27 years previously.
(9) The Trial Judge’s Ruling with Respect to the Absence of Entries
125 The trial judge did not refer in his ruling to the Seaboyer or Osolin test for limiting the appellant’s fair trial rights to a full cross-examination. He explicitly approached the cross-examination issue as an extension of the O’Connor production issue, applying the same criteria.
126 It is not clear from the record whether he had actually examined the diary. In his related (but earlier) ruling on the application of ss. 278.1 to 278.9 of the Criminal Code, he had said that he had not read “any portion of the diary”. Counsel for the appellant advised this Court that to his knowledge the trial judge at no time examined the diary, which, if correct, would be consistent with his adaptation of the O’Connor approach.
127 After dealing favourably with various elements in the appellant’s motion to refer KWG to actual entries in the diary, the trial judge addressed the potential use of the diary in the proposed cross-examination on the absence of entries regarding the alleged abuse:
I do not make any ruling about how the defence may argue its case to the jury, but I am satisfied that on this issue, the privacy interest outweighs the potential probative value. In my view, the probative value of demonstrating that [KWG] did not write in her diary a description of any particular sexual assault by [the appellant] is minimal and the intrusion upon her privacy is considerable. [Defence counsel] may not conduct that particular sort of cross-examination with the diary.
128 It is evident that the statements in his ruling about “discriminatory belief or bias” and “the privacy interest” and “probative value” relate back to his recitation four pages earlier in the transcript of the second, fourth and fifth elements of the “balancing test” in O’Connor.
129 He specifically attributed his disallowance of questions about the absence of entries to “criterion number 4 in O’Connor”. It cannot fairly be concluded, in my view, that he applied Seaboyer or Osolin when he explicitly purported to apply O’Connor. I see no reason why we should not accept that this is exactly what he did. At no time did he find that the intrusion on privacy “substantially outweighed” the probative value. In the view he took of the post-O’Connor law, that was not the test.
130 The trial judge’s ruling was certainly understood by Donald J.A. in the British Columbia Court of Appeal, as based on O’Connor. He concluded that Mills, supra, following on O’Connor, supra, “casts a new light on the question of the complainant’s privacy and supports the impugned ruling” (para. 83). Further, “Mills . . . shifted the balance away from the primary emphasis on the rights of the accused” (para. 93), and again, “[t]he majority in Mills emphasized the need to concentrate on the context in which the competing rights arise in order to strike the right balance in each case” (para. 94).
131 Mills, of course, dealt with the constitutional validity of the procedure set out in ss. 278.1 to 278.9 of the Criminal Code for the production of third party records. It did not purport to deal with the proper limits of cross-examination using evidence already in the possession of the defence.
132 Moreover, even in terms of production of third party documents, I do not, with respect, agree that “Mills has shifted the balance away from the primary emphasis on the rights of the accused” (para. 93 (emphasis added)) because Mills itself affirms the primacy – in the last resort – of the requirement of a fair trial to avoid the wrongful conviction of the innocent. Mills states in para. 94 that
where the information contained in a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent.
133 I agree with Donald J.A. that the trial judge applied O’Connor to limit the defence cross-examination of the complainant but I do not agree, with respect, that this Court in O’Connor or Mills either intended to or did substitute a test intended for the production of third party documents to the quite different problem of imposing limits on cross-examination as laid down in Seaboyer and Osolin.
(10) The Duty to Permit Proper Cross-examination
134 The trial judge was quite correct to reject the overly aggressive posture put forward on behalf of the appellant.
135 Defence counsel stated: “My position is [that] I have got this diary, I am entitled to cross-examine [on] it”. Further, the defence opening position was that:
I may cross-exam[ine] her and take her through the entire thing so my friend should assume that the entire contents are fair game.
136 Eventually he relented and provided the court with a list of specific entries to be put to KWG in cross-examination, all of which were eventually allowed by the trial judge.
137 The position was accurately summarized on this point by the trial judge when he said the submission of defence counsel was that
he should have a wide-ranging ability to use the diary in pretty much any way that he sees fit on behalf of his client.
138 The justified rejection of this position did not end the matter. In Osolin, the majority took the view that the trial judge is obliged to focus on the rights of the accused, not the posture adopted by his or her counsel. In that case, the defence wanted to cross-examine the complainant on her medical records to show “what kind of person the complainant is” (p. 673). Cory J. held that such a purpose was plainly improper, but
quite apart from the submissions of the defence counsel, it is the duty of the trial judge to ensure that the accused’s rights with regard to cross-examination, which are so essential to the defence, are protected.
139 In his view, a more limited cross-examination ought to have been allowed. L’Heureux-Dubé J. (at p. 611) and McLachlin J. (at p. 642) expressly dissented on this point, but the view of Cory J. was sustained by a majority of the Court.
140 In my view, therefore, it was not enough for the trial judge to reject the overreaching position of defence counsel. He was also required to assess for himself the legitimate entitlement of the accused. In fact, he seems to have done so in the course of argument, but not in his ruling. For example, he suggested to the defence that it could explore the absence of entries in front of the jury without going through the diary “item by item”:
The Court: What I meant by that comment is perhaps you can deal with it on a level of generality by proving that she did not record this, did not record that, as opposed to taking her through it item by item, but you can tell me that tomorrow.
[Defence Counsel]: That’s not the way we’re approaching it, my lord.
141 Donald J.A. was of a similar view in the Court of Appeal (at para. 87):
If it had been possible to confine the questions simply to the fact that the entries made no mention of the abuse, without getting into the diary itself, the balance may have tipped the other way.
142 The trial judge had already rejected an all or nothing approach to the use of diary entries and there is no reason why similar ground rules involving a few representative entries could not have been established on this issue as well. The parties were agreed that the diary made no mention of physical or sexual abuse. It was therefore unnecessary, with respect, to take KWG through the entire diary to establish that fact, as suggested by my colleague L’Heureux-Dubé J. at para. 169.
(11) Applying the Osolin Test
143 The serious limits placed on the defence emerged in the clarification of the ruling sought by the appellant with respect to the issue of the mother’s alleged physical abuse (which did not, of course, raise a “rape myth” issue as such):
[Defence Counsel]: One further point of clarification with respect to . . . the references to beatings and negative references to her mother. I have your point squarely that I shall in all respects stay away from the diary about those issues but I didn’t want – there may have been some misunderstanding between you and I, my lord. . . .
The Court: Yes. I have a note, whatever I may have said a few minutes ago, my note shows that the diary contains no reference to her mother beating her, but you wanted to cross-examine her on why that was so.
[Defence Counsel]: Yes. I’m not going to now, in light of your ruling. I should say this, though, that I do intend to cross-examine her without any reference to this diary about what she says were these beatings by her mother because she gave that evidence in direct examination. I have some discrete questions that I wish to put to her, no questions about the diary, and I also may ask her some questions, again nothing about the diary, but to ascertain the relationship she had with her mother . . . .
The Court: So far as it arises from direct examination, it doesn’t touch on the diary, then I guess it’s a separate issue. [Emphasis added.]
144 In my view, KWG’s diary ought not to have been ruled untouchable in this respect and I think that if the trial judge had properly directed himself on the Osolin test, he would have reached a different conclusion.
145 Firstly, the absence of any entries relating to physical or sexual abuse was a live issue with respect to the credibility of KWG that was potentially of probative value, depending on her responses. The trial judge had already concluded that there was sufficient potential contradiction between KWG’s evidence-in-chief and certain of the diary entries to justify calling on her for an explanation before the jury. Questions dealing with the absence of entries were no more intrusive into her privacy than those he had already permitted. The trial judge had decided that it was open to the defence to argue that the contemporaneous diary showed a more accurate picture of KWG’s life in 1970 than her unaided evidence-in-chief 27 years later.
146 Secondly, the probative value to the defence depended on establishing the premise that if the physical and sexual abuse occurred, it would have been recorded. The defence was rightly precluded from assuming the truth of that premise, but it did not follow that the defence should also be precluded from attempting to demonstrate it with this particular diary on the particular facts of a case. As previously noted, both the trial judge and Donald J.A. seemed to consider such cross-examination would be proper provided the result was not an indiscriminate rehash of every entry in the diary, as the defence had demanded.
147 Thirdly, the court ought not to have assumed what her responses to those questions would be: Osolin, supra, at p. 674. Both the trial judge and the Court of Appeal assumed questions about the absence of entries could have been easily answered by KWG. If so, there was even less reason to prevent them from being asked.
148 Fourthly, KWG had herself characterized the diary entries as “mundane”. There was no effort to put her “lifestyle and reputation on trial”: Osolin, supra, at p. 672. This does not at all eliminate her privacy interest, but it lessens its weight.
149 Fifthly, neither KWG nor her counsel suggested any particular privacy interest in the reasons why KWG kept a diary in 1970 or its scope. Indeed, her counsel acknowledged that “[t]he circumstances under which the diary was created” goes to the “kind of privacy interest that she has” rather than being itself the subject matter of a privacy interest.
150 Accordingly, viewed from the Osolin perspective, the nature and scope of KWG’s diary did not raise privacy or other concerns of such importance as to “substantially outweigh” the appellant’s fair trial right to cross-examine on the diary (both the selected entries permitted by the trial judge and the absence of entries) to test the accuracy and completeness of KWG’s recollection of events 27 years previously.
151 It cannot be said that there is no reasonable possibility that if the cross-examination had proceeded, the verdict on the KWG charges would necessarily have been the same. The curative proviso of s. 686(1)(b)(iii) is therefore inapplicable: R. v. Bevan, [1993] 2 S.C.R. 599, at p. 616, and R. v. Jolivet, [2000] 1 S.C.R. 751, 2000 SCC 29, at para. 49.
C. Effect of New Trial of KWG Charges on Use of Similar Fact Evidence
152 The new trial ordered on charges related to KWG does not, in my view, put in doubt the correctness of the jury verdicts with respect to the other complainants. It is true that KWG’s testimony was admitted as similar fact evidence on the other counts. However, the ruling that KWG’s testimony was not tested by cross-examination to the extent necessary to support a conviction beyond a reasonable doubt on her complaints does not make it inadmissible on the similar fact issue, namely the appellant’s modus operandi. Ten other complainants testified to the same effect. There is no miscarriage of justice in maintaining those convictions. If necessary, I would apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code in that respect.
V. Disposition
153 The Crown did not dispute the correctness of the new trial ordered by the British Columbia Court of Appeal on the two pre-1983 counts. The appeal is therefore allowed with respect to the counts pertaining to KWG but is dismissed with respect to the other convictions of the appellant, the validity of which is affirmed.
The reasons of L’Heureux-Dubé and Gonthier JJ. were delivered by
154 L’Heureux-Dubé J. (dissenting in part) – The issues in this case are (1) whether the similar fact evidence adduced to support the credibility of the complainants was properly admitted at trial; and (2) whether the trial judge was right to restrict defence counsel’s cross-examination on the diary of the complainant KWG.
155 I have had the benefit of reading the reasons of my colleague Justice Binnie. While I agree with him that the trial judge correctly concluded that the similar fact evidence was admissible, I respectfully disagree that the defence should have been permitted to question KWG on the absence of reference to abuse in her diary. The reasons for my disagreement are twofold. First, the trial judge should have ordered the diary returned to KWG, its rightful owner, and required the appellant to seek production of it through the appropriate statutory channels. Second, even if the appellant had acquired the diary through the proper channels in the first place, the prejudicial effect of the proposed line of questions on the absence of entries substantially outweighs its probative value. Thus, I believe the appeal should be dismissed with respect to all of the convictions of the appellant.
I. Wrongful Possession of the Diary
156 My colleague correctly concludes that KWG never waived or abandoned her privacy interest in her diary. He suggests, however, that KWG was not illegally deprived of her property interest in her diary because “[s]he simply left it behind in a common storage room with other possessions no longer required for day-to-day living” (para. 88). Binnie J.’s conclusion in this regard recalls the trial judge’s determination that KWG’s continuing privacy interest in the contents of her diary obviated any need to decide whether KWG had abandoned her property interest in the writing:
I am inclined to the view that K.W. did not abandon her property interest in the diary either, although that is less clear. Having ignored the document for 20 years or more, one might conclude that she had abandoned the property interest in it. I do not need to decide that issue on the present application. I am satisfied that her privacy interest in the information remains a right enjoyed by her.
157 In my view, the implications of the reasoning of Binnie J. and the trial judge warrant some elaboration. At the time she wrote the diary entries, KWG, her sister, and her mother lived together in a single room in a house at 1160 W. 10th Avenue, Vancouver, along with the accused and about 12 other people. In order to conserve space, her mother put the family’s belongings in a storage room in the basement. Each of the residents in the house had her own boxes in her own area in the storage room. There was no sharing of boxes or storage areas, each of the residents knew where her belongings were, and Dorothy Rollins, a long-time member of the Kabalarian Society and resident of 1160 W. 10th Avenue, testified that “[i]t was . . . a code of ethics amongst ourselves that we didn’t interfere with each other’s privacy”. In the mid-1970’s, KWG moved out of the house “extremely quick[ly]”. In direct examination on the voir dire, KWG clearly indicated that she thought the belongings she left behind, including her diary, “would be in [her mother’s] care” and expected her mother “would give it back to [her]”. When asked whether she wanted her diary returned to her, KWG adamantly responded, “Absolutely, every copy and everything else that was in that box.”
158 Approximately two years after her mother had moved out of the house and 22 years after KWG had left, Dorothy Rollins discovered the diary while searching through the storage room for some of her own papers. She opened the box, even though she knew it was not in her area of the storage room, and found the diary. She knew the diary did not belong to her and observed that it was locked. Undeterred, Ms. Rollins unlocked the diary and saw that it had KWG’s name printed in the front. At the time she discovered the diary, she knew the appellant was charged with the present offences and that KWG was one of the complainants. Although she could have left the diary where she found it or easily contacted KWG’s mother to return it to her, Ms. Rollins instead gave it to Ronelda Chase, who was compiling information for the appellant’s defence. Neither Ms. Chase nor the appellant ever sought to restore the property to KWG.
159 The question that the trial judge should have addressed, then, is whether KWG abandoned her property interest in the diary. I believe that she did not, and I would apply this Court’s recent unanimous decision in R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10, to resolve this matter. Law, supra, clearly provides that where an individual abandons or relinquishes her property, she effectively abandons her privacy interest in it. The logical corollary to this proposition must be that where an individual retains a privacy interest in her property, she cannot be deemed to have abandoned it. While a person can conceivably relinquish her privacy interests in the contents of her property – for example, by reciting every entry in one’s diary to the general public – without also giving up the physical good, the law does not seem to allow for the reverse.
160 In addition, the onus of proving “abandonment” rests with the party alleging it and is a relatively significant burden, which is met only when there is “‘a giving up, a total desertion, and absolute relinquishment’ of private goods by the former owner. It may arise when the owner with the specific intent of desertion and relinquishment casts away or leaves behind his property”: R. A. Brown, The Law of Personal Property (2nd ed. 1955), at p. 9. According to Black’s Law Dictionary (6th ed. 1990), “abandonment” is the equivalent of “a virtual, intentional throwing away of property”. Reference to these principles indicates that KWG did not abandon the diary. Given that a property interest necessarily encompasses the privacy interest that my colleague agrees KWG still possesses, the appellant’s argument that he did not illegally possess the diary because the complainant had abandoned it is without merit.
161 In my view, the trial judge should have ordered the diary, as well as every copy that was made of it, returned to its rightful owner and required the appellant to seek production of it through the proper statutory scheme, namely, ss. 278.1 to 278.9 of the Criminal Code, R.S.C. 1985, c. C-46, just as any other accused person in his position would have had to.
162 I am aware that some of the unique concerns posed at the production stage of such documents and informing Parliament’s decision to enact ss. 278.1 to 278.9 of the Code may no longer be present where the accused has already examined the contents of the private record he seeks to have produced. I am not, however, persuaded that this is an adequate reason to allow accused persons who manage to circumvent the statutory scheme through unlawful or wrongful means potentially to benefit from their disreputable behaviour. Such a result would not only frustrate the purpose of the legislation, but the constitutional rights of sexual assault victims as well: “A complainant’s many rights in her diary are not . . . abandoned only because such rights have been previously violated” (intervener Women’s Legal Education Action Fund’s factum, at para. 15).
163 Like my colleague, however, I do not think it is necessary to dwell on the property ownership debate. Even if we assume, in the appellant’s favour, that the diary came into his hands in a manner consistent with the statutory scheme, I believe both the trial judge and the Court of Appeal were nonetheless correct to prohibit the proposed line of cross-examination on the diary.
II. The Proper Limits of Cross-examination
164 The test for admissibility of defence evidence is whether the prejudicial effect of that evidence substantially outweighs its probative value: R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Osolin, [1993] 4 S.C.R. 595. In weighing prejudicial and probative value, the trial judge must consider not only the accused’s right to full answer and defence, but also the importance of the complainant’s and other witnesses’ privacy and equality rights, as outlined in R. v. O’Connor, [1995] 4 S.C.R. 411, and R. v. Mills, [1999] 3 S.C.R. 668. The majority decision in Osolin, supra, clearly held that, similar to O’Connor, supra, and Mills, supra, the privacy and equality rights of the complainant as protected by the Charter should inform the trial judge’s decision on whether to restrict the defence’s cross-examination.
165 On this point, I disagree with my colleague that “the nature and scope of KWG’s diary did not raise privacy or other concerns of such importance as to ‘substantially outweigh’ the appellant’s fair trial right to cross-examine on the [absence of entries in the diary] . . . to test the accuracy and completeness of KWG’s recollection of events 27 years previously” (para. 150). Instead, I believe that such cross-examination would introduce a high potential of prejudice. That possibility substantially outweighs the minimal probative value of questions concerning the absence of entries in the complainant’s diary.
A. Prejudicial Effect
166 As Osolin, supra, provides, we must consider the complainant’s privacy and equality rights in assessing the potential prejudice posed by a line of questioning on cross-examination. KWG’s privacy rights are clear: there is no question that the diary is a record over which KWG had a reasonable and continuing expectation of privacy and my colleague does not disagree: “The trial judge found that KWG had never waived or abandoned her privacy interest in the diary and I agree with him” (para. 87 (emphasis in original)). Significantly, the diary included “information which tends to reveal intimate details of the lifestyle and personal choices of the individual”: R. v. Plant, [1993] 3 S.C.R. 281, at p. 293. It was at least a partial record of KWG’s life during that period of time and represented her particular outlet for personal self-expression.
167 Notwithstanding these privacy interests that we both accept, Binnie J. finds that the appellant should be allowed to cross-examine on the absence of mention of abuse in the diary, in part, because the entries are “mundane”. But whether or not her diary entries were “mundane” does not lessen her privacy interest in the diary. It can hardly be doubted that a teenager’s personal diary is high on the spectrum of records in which one has a privacy interest; “[d]iaries serve as private enclaves in our society. Teenagers buy diaries equipped with lock and key”: J. B. LaVacca, “Protecting the Contents of a Personal Diary from Unwanted Eyes” (1988), 19 Rutgers L.J. 389, at pp. 389‑90. And, as KWG herself appropriately noted, “It was a diary. Diaries are supposed to be private.” Hence, the fact that KWG specifically chose to record her thoughts and recollection of daily events in a private, locked diary, rather than, for instance, on a calendar on her bulletin board, post-it notes on the refrigerator, or even her school notebook, suggests to me that she had a high expectation of privacy in what she wrote, regardless of its content. Counsel for the complainant persuasively observed at trial that “the issue surely with respect to privacy is the respect these courts are prepared to pay to the individual’s ability to write down whatever he or she may choose to write down in one’s personal diary. That’s the privacy interest at stake, it’s not what is written down.” She went on to draw a powerful analogy between the diary and private therapy records: “So for example, what if in therapy one didn’t talk so much about one’s feelings but about one’s taste in shopping? It would not, in my submission, detract from the reasonable expectation of privacy to be able to establish that the content of the conversation was X rather than Y.”
168 Similarly, in Law, supra, this Court did not examine the contents of the private documents to evaluate the owner’s privacy interest. In that case, thieves stole a safe containing commercial documents from two restaurant owners. The police recovered the safe, but before it was returned to the owners, an officer who suspected the owners of tax violations photocopied some of the documents inside and eventually forwarded the photocopies to Revenue Canada. According to Bastarache J., writing for the Court, the owners’ reasonable expectation of privacy in their documents derived not from their contents, but from the fact that they chose to keep the documents confidential by locking them in a safe. In its reasoning, the Court, at para. 16, noted that informational privacy “derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain . . . as he sees fit” (emphasis added).
169 I also believe that the complainant’s privacy rights place constraints on cross-examination where that questioning, as here, would result in wide-ranging cross-examination of the diary, thus revealing much of its contents. As the trial judge properly concluded: “The privacy interest in an examination or cross-examination of [this] sort is considerable, because it can be expected to touch upon a number of the diary entries in order to demonstrate that, on occasions when an entry might have been made concerning Mr. Shearing, none was made.” Therefore, the prejudice to the complainant is increased by virtue of broad exposure of the contents of her personal diary. Certain entries had already been opened up for cross-examination on other specific points. To expose extensively her personal musings through the line of questioning proposed by the defence is to aggravate the violation of her privacy rights, not to mention the fact that “the process of proof and counterproof to establish the reliability of the evidence [would] entai[l] large amounts of time and may potentially sidetrack the trial of the case”: Osolin, supra, at p. 621, per L’Heureux-Dubé J. dissenting.
170 Privacy rights and equality rights of the complainant overlap to some extent in assessing the potential prejudice of the questioning and the concomitant limits that should be placed on the right to full answer and defence. As noted by Cory J. in Osolin, supra, at p. 669:
Sexual assault is in the vast majority of cases gender based. . . .
. . . The provisions of ss. 15 and 28 of the Charter guaranteeing equality to men and women, although not determinative should be taken into account in determining the reasonable limitations that should be placed upon the cross-examination of a complainant. . . . A complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system.
Thus, this Court must be sensitive both to the equality concerns present in this case, and to the policy of encouraging victims to report sexual assaults, without fear of a wide-ranging and in-depth inquiry of every detail of their private lives.
171 My colleague and I agree that the trial judge correctly rejected “the overly aggressive posture put forward on behalf of the appellant” (para. 134), namely, that “he should have a wide-ranging ability to use the diary in pretty much any way that he sees fit” (para. 137). But we disagree as to whether the trial judge’s justified rejection of this position resolved the matter. According to Binnie J., relying on the majority’s reasons in Osolin, supra, “the trial judge . . . was also required to assess for himself the legitimate entitlement of the accused” (para. 140) to cross-examine and should have allowed questioning on the absence of reference to the sexual assaults using “a few representative entries” (para. 142). I joined McLachlin J. (as she then was) in expressly dissenting on this point in that case. At p. 643, McLachlin J. (also joined by La Forest and Gonthier JJ.) explained:
[T]o place a duty on a trial judge to ensure that all legitimate grounds of cross-examination are explored is inconsistent with the nature of our trial process and would confuse and complicate the prosecution of criminal offences unduly. Our criminal trial system is essentially adversarial. The Crown puts forward evidence directed to showing that the accused is guilty beyond a reasonable doubt. The accused points out weaknesses in the Crown’s case and sometimes offers contrary evidence. The court, comprised of judge and jury, sits as neutral arbiter, charged with deciding, whether, at the close of all the evidence, the Crown has proven the accused guilty beyond a reasonable doubt.
I continue to adhere to this view, and I believe the defence’s rejection of a more tailored approach to cross-examination on the absence of recording of abuse in the diary here, like the defence’s failure to raise a valid reason for the cross-examination in Osolin, supra, was fatal.
172 Proper consideration of the complainant’s equality rights also requires an appreciation of myths and stereotypes in the context of sexual violence: see Mills, supra; O’Connor, supra; Osolin, supra; Seaboyer, supra. Allowing questioning on the absence of the mention of sexual assault in the diary would be to endorse the same discriminatory beliefs that underlie the “recent complaint” myth. As I explained in Osolin, supra, at p. 625, the recent complaint myth “suggest[s] that the presence of certain emotional reactions and immediate reporting of the assault, despite all of the barriers that might discourage such reports, lend credibility to the assault report, whereas the opposite reactions lead to the conclusion that the complainant must be fabricating the event”. Similarly, questioning the complainant as to why certain reactions are not present in her diary or why she did not “report” the incidents by recording them in her diary, implies that the absence of such writings is support for the conclusion that she fabricated the events.
173 The rape myth of “recent complaint” has long been dismissed by this Court and, if used to draw a negative inference about the complainant’s credibility, constitutes a reversible error: see R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43, at para. 63. As this Court firmly explained in Mills, supra, at para. 90: “The accused is not permitted to ‘whack the complainant’ through the use of [such] stereotypes regarding victims of sexual assault.” Oftentimes, merely posing a question that may be directed to myths and stereotypes in the sexual assault context is enough to distort the truth-seeking goal of the trial process because the prejudice derives from the innuendo imbedded in the question.
B. Probative Value
174 Equality rights and the problem of the “recent complaint” myth are also relevant in determining the probative value of the evidence to be gained from the proposed line of questioning. An analysis of the probative value of the proposed line of questioning, keeping equality rights in mind, indicates that cross-examination on this point would not be probative because, as the respondent correctly observed, the assumption that “silence speaks volumes” is unfounded, and by itself cannot lead to the conclusion that no sexual assault occurred.
175 In addition, as McLachlin J. reasoned in Osolin, supra, at p. 641 (following on the approach she outlined in Seaboyer, supra), in order for the cross-examination to be relevant, “the accused must demonstrate that the cross-examination is directed at a ‘legitimate purpose’”. In the context of cross-examination directed at a complainant, it is ipso facto an improper purpose to cross-examine with the only goal being to discredit the complainant’s character. Even the majority in Osolin, supra, at p. 671, held that “[c]ross-examination for the purposes of showing consent or impugning credibility which relies upon ‘rape myths’ . . . can fulfil no legitimate purpose and would therefore be inadmissible to go to consent or credibility. Cross-examination which has as its aim to elicit such evidence should not be permitted.”
176 The only object of questioning the complainant in this case about the absence of entries in her diary is to imply that she is fabricating the events, thus relying on the same discriminatory beliefs that undergird the recent complaint myth. Thus, there is no legitimate purpose placed before the trier of fact.
177 I believe my colleague and I agree that, having eliminated as a basis for cross-examination reliance on the myth that a complainant who does not record her abuse in her personal diary lacks credibility, questions on the absence of mention of sexual assaults in the diary can have no probative value. Where we fail to agree is when the defence is required to demonstrate a valid reason for its proposed line of questioning and whether it was given the opportunity to do so in this case.
178 According to Binnie J., “the absence of any entries relating to physical or sexual abuse . . . was potentially of probative value, depending on her responses”, and KWG should have been called on to give these responses “before the jury” (para. 145 (emphasis added)). The majority in Osolin, supra, at p. 671, reasoned that where the purpose of the cross-examination may be directed to rape myths, the determination should take place in a voir dire, rather than in front of the jury:
In each case the trial judge must carefully balance the fundamentally important right of the accused to a fair trial against the need for reasonable protection of a complainant, particularly where the purpose of the cross-examination may be directed to “rape myths”. In order to assure the fairness of the trial, where contentious issues arise as to the cross-examination of the complainant a voir dire should be held. In the voir dire it will be necessary to show either by way of submissions of counsel, affidavit or viva voce evidence that the proposed cross-examination is appropriate.
McLachlin J. in Osolin, supra, again following her approach in Seaboyer, supra, unequivocally stated, at p. 640: “The rule is clear.” She continued, at p. 641: “Before cross-examination can be allowed . . . the defence must demonstrate that the cross-examination possesses ‘a degree of relevance which outweighs the damages and disadvantages presented by the admission of such evidence’” (emphasis added).
179 Here, the defence was given ample opportunity to demonstrate a rational basis for the proposed line of questioning on the absence of mention of the abuse in the diary on the voir dire, by way of cross-examination of the complainant and submissions to the court, and it failed to proffer such a basis. In cross-examination on the voir dire, the defence asked KWG a number of exploratory questions pertaining to the nature of the diary and the length of time she kept it. Rightly so, the defence was not permitted to engage in a “fishing expedition”, even on the voir dire. Evidence must be tendered for a legitimate purpose and logically support a defence, and “[t]he trial judge’s discretion must be exercised to ensure that neither the in camera procedure nor the trial become forums for demeaning and abusive conduct by defence counsel”: Seaboyer, supra, at p. 634.
180 Moreover, in his submissions to the court, defence counsel asserted that examination on the absence of reference to the abuse was relevant to the complainant’s credibility, without, however, articulating a valid reason why.
Submissions to the Trial Judge on the Voir Dire by Defence Counsel, Mr. Tammen
(Jury Out)
The Court: . . .
So where are we going with this diary? What are you trying to prove with it?
Mr. Tammen: First of all, several things. I can set them out. First of all, that there’s no comments in this diary that could be construed as being – reflecting negatively on the accused. There’s references to him in it, but nothing negative. I mean, you’ve heard her evidence that she wishes to see him rot in hell, she hates him. That’s not reflected in the diary. There’s no references to any sexual acts in the diary.
. . .
The Court: So you say, first of all, that the diary overlapped in time with some of these alleged acts of sexual intercourse, and secondly, you say the diary has probative value because of the fact that she never confided in her diary any unhappiness or how the accused was treating her. . . .
Mr. Tammen: Yes, that’s part of –
The Court: I didn’t put that very well, but is that essentially one argument you make?
Mr. Tammen: Yes, it is, my lord. [Emphasis added.]
These deficiencies led the trial judge to find that the only basis for the evidence was reliance on the “recent complaint” myth:
Finally, Mr. Tammen wishes to conduct what might be described as a broad ranging cross-examination, using the diary to demonstrate that it contains no references to sexual assaults by the accused or sexual activity with the accused. In essence, he wants to go to the jury and argue that the witness has made no “complaint”, if I may use that word, to her private, confidential diary about the sexual assaults that she now testifies to.
. . .
It can hardly be denied that, in a great number of instances of sexual assaults upon children, probably in most such instances, the complainant does not make any complaint at the time to adults, friends or those who are close to him or her. It should come as no surprise, then, to find that a child would not confide in her diary that an assault of that sort has occurred. Ms. Dickson [counsel for the complainant] argues strongly that there is no probative value in a lack of complaint in these circumstances, and that to allow cross-examination and argument on the issue is premised upon a discriminatory belief or bias. [Emphasis added.]
181 My colleague accounts for the defence’s failures to show probative value in questioning by suggesting that the defence “overlooked (or perhaps resolutely resisted) the need to lay before the jury a rational basis for the inference it ultimately wished to draw, namely that the non-recording of a certain type of information was circumstantial evidence that the alleged abuse never happened” (para. 119). I disagree. Instead, I think the bottom line is that the defence simply did not have a rational basis for its proposed line of questioning. As Binnie J. agrees, KWG was under no legal duty to record the sexual assaults; she clearly did not follow a regular practice of making such entries because no entries of any kind of abuse were made; and all sides admit that the diary entries were “mundane”. Similarly, the Court of Appeal, which reviewed the diary, concluded, at para. 86: “The style and content do not suggest that if abuse had occurred the complainant would have confided it to her diary.”
182 Even if I were to accept my colleague’s suggestion that defence counsel simply “overlooked (or perhaps resolutely resisted)” the need to assert a valid reason for its proposed cross-examination in his initial submissions, I would be hard pressed to believe that he repeated the same error in his reply, especially given that KWG’s counsel had just finished arguing, at length, that the proposed questions essentially relied on the “recent complaint” myth. Furthermore, I do not think it is the duty of the trial judge to ensure that all legitimate grounds of cross-examination are explored. In short, the trial judge gave the defence a full and fair opportunity to lay a rational foundation for the inference it wished to draw and correctly concluded that the probative value of the evidence was “minimal”, if anything.
183 As a coda to my observation that the probative value of the evidence was minimal for equality reasons, I would add that the right of the accused to make full answer and defence does not stand or fall based on whether the accused may engage in this particular line of cross-examination. I fail to see what the defence could possibly gain by questioning KWG on her diary keeping as a 14-year-old. If the defence asks the complainant why she did not mention the sexual assaults or the beatings in her diary, the only conceivable answers would be either a) “Those events didn’t occur at all” (and it is far-fetched to believe that the complainant would recant in this manner given her prior statements in the case), or, the more probable answer, b) “I felt uncomfortable writing about these traumatic occurrences, and I did not intend my diary to constitute a complete record of my life in any event”. The more probable answer is unhelpful to the defence, unless of course the defence wishes to imply that because the complainant did not write of the assaults, the complainant is fabricating the story. This is an improper purpose of questioning, as has already been discussed. The cross-examination in any event also seems unnecessary to the appellant’s defence that the events did not occur at all, since, if the defence wishes to challenge the complainant’s version, it has the benefit of having the complainant there to directly question her memory of the assaults and her life during that period of time.
III. Conclusion
184 In summary, an application of the Seaboyer/Osolin, supra, test that cross-examination should be restricted if the prejudicial impact substantially outweighs the probative value, reveals that the trial judge and Court of Appeal in this case were correct to prohibit the particular line of questioning proposed by the defence. In applying this test, we must consider the accused’s right to full answer and defence and the complainant’s privacy and equality rights. In the case at bar, the prejudicial effect is very high, while the probative value is, at best, minimal. The diary is an intimate record of the complainant’s life during that period of time and the proposed line of cross-examination would necessarily open up much of the diary’s contents to scrutiny.
185 Besides constituting a wide-ranging violation of the complainant’s privacy rights, the proposed cross-examination also has potential equality implications, as victims would naturally be loath to report sexual assaults if they feared that their entire private lives would be intensely scrutinized at trial. Given that a diary is an individualistic exercise, questioning a complainant on the failure to record a sexual assault is akin to questioning a complainant as to why she failed to raise a “hue and cry” immediately after the assault. As the proposed line of questioning is animated by a discriminatory belief, the prejudice is high and the potential probative value is very low, if anything. In addition, the defence has the benefit of getting evidence by directly cross-examining the complainant on her version of events, and thus does not require the additional evidence that would result from questioning the complainant on why she did not write about the assaults. Therefore, the evidence is neither relevant nor necessary for the accused to exercise his right to full answer and defence. A review of all of these factors strongly indicates that the trial judge and Court of Appeal were correct to prohibit the proposed line of cross-examination on the diary, as the potential prejudice substantially outweighs the probative value of such an exercise.
186 I would consequently dismiss the appeal.
Appeal allowed in part, L’Heureux-Dubé and Gonthier JJ. dissenting in part.
Solicitors for the appellant: Peck and Company, Vancouver.
Solicitor for the respondent: The Ministry of the Attorney General, Vancouver.
Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.
Solicitors for the intervener Women’s Legal Education and Action Fund: Sheilah Martin, Calgary; Chivers Greckol & Kanee, Edmonton.
Solicitors for the intervener Criminal Lawyers’ Association (Ontario): Sack Goldblatt Mitchell, Toronto.