John v. The Queen

Estey and Lamer JJ.‑‑Tracy Evans John was charged and convicted in Toronto by a jury on five counts, all arising out of the same incident:

1. ...he, on or about the 11th day of April in the year 1981, at the Municipality of Metropolitan Toronto in the Judicial District of York, did take away Joanne Marie Volk, a female person, against her will with intent to have illicit sexual intercourse with her, contrary to the Criminal Code .

...he, on or about the 11th day of April in the year 1981, at the Municipality of Metropolitan Toronto in the Judicial District of York, without lawful authority, confined Joanne Marie Volk, contrary to the Criminal Code .

...he, on or about the 11th day of April in the year 1981, at the Municipality of Metropolitan Toronto in the Judicial District of York, indecently assaulted Joanne Marie Volk, a female person, contrary to the Criminal Code .

...he, on or about the 11th day of April in the year 1981, at the Municipality of Metropolitan Toronto in the Judicial District of York, raped Joanne Marie Volk, contrary to the Criminal Code .

...he, on or about the 11th day of April in the year 1981, at the Municipality of Metropolitan Toronto in the Judicial District of York, carried a weapon, to wit: a knife, for the purpose of committing the indictable offence of rape, contrary to the Criminal Code .

2. The accused appealed his convictions to the Ontario Court of Appeal arguing reversible error below in the conduct of the trial and, subsidiarily, that a conviction, if any, could not be entered as regards some of the counts under the principle set out by this Court in Kienapple v. The Queen, [1975] 1 S.C.R. 729. All agreed that there was error below, but the majority, applying s. 613(1)(b)(iii) of the Criminal Code , dismissed the appeal. Brooke J. A. dissenting, would not have applied the proviso and would have allowed the appeal from conviction and ordered a new trial. The judgment was released on November 17, 1983. No reference was made in the judgment to the issue regarding multiple convictions.

3. Before the issuance of the formal Order, the Court of Appeal released, on December 1, 1983, an addendum to the original judgment. In this addendum, all of the convictions except the conviction for rape were quashed on the basis of the rule against multiple convictions.

4. The accused appeals to this Court his conviction for rape while the Crown appeals the application of the Kienapple principle as regards some of the counts. The Crown also invites this Court to pronounce upon certain procedural aspects that arise upon an application of Kienapple.

5. The issues in these appeals therefore divide into two parts. The first part concerns the application by the majority in the court below of s. 613(1)(b)(iii) of the Criminal Code to confirm a conviction under s. 143 of the Code for rape. The second part concerns the quashing by the Court of Appeal of the convictions on the other four counts in the indictment, as a result of an application of the principle set out in Kienapple, supra.

The issue arising out of the application of s. 613(1)(b)(iii) of the Criminal Code concerns the Crown's action in calling in reply the complainant and nine other witnesses to introduce evidence concerning the physical characteristics of the accused, particularly his mobility and agility, notwithstanding that he had an artificial limb from the knee down on one leg. The complainant testified in‑chief and in cross‑examination that the accused walked with a limp and had difficulty climbing the two flights of stairs to his dwelling. Indeed, the complainant admitted that in the course of the journey up the stairs, there was a possibility that she could have escaped by reason of the accused's difficulty except that she was frightened and this was probably due to the possession of a knife by the accused. Against the backdrop of this evidence, the accused elected to testify and he did nothing to disturb the complainant's description of his restricted ability to move about. Indeed, he may have emphasized the complainant's evidence by limping to the witness stand. In reply, other witnesses called by the Crown contradicted the essence of the complainant's testimony as to the difficulties the accused had in walking by reason of his artificial limb. The Crown could not have called these witnesses to contradict its own witness, the complainant Volk. To allow the Crown to do so in reply is doubly wrong because the effect was to force the accused to return to the witness box. When the Crown called the complainant in reply, she testified about a new topic which had nothing whatever to do with any evidence entered by the accused or on behalf of the accused in his defence. She proceeded to tell the jury about a statement alleged to have been made by the accused to her that he "had planned... [the offence] for a week and it could have been anyone". The effect of this evidence on a juror's mind would in all likelihood be serious. It is of course impossible to reconstruct this trial by jury so as to determine what the verdict would have been had this evidence not been presented. This information did not fall out of the complainant accidentally, as the very form of the Crown's question indicates an awareness of the answer desired. Indeed, counsel for the Crown, in proper frankness, acknowledged that this was the case. Clearly this is the situation referred to in criminal practice as the prosecution splitting its case. The wrongs which flow from such a practice are manifold and the practice has been prohibited from the earliest days of our criminal law.

The effect of this evidence by the complainant also forced the accused to enter the witness box for the second time. He was required so to do firstly in order to deal with the evidence of his agility or mobility, and secondly to meet the evidence that he had indeed planned the offence in general for some time. The cross‑examination of the accused by the Crown centered on his ability to ascend stairs and to play basketball. The first related to evidence led by reply witnesses who contradicted the evidence of the complainant on this subject and the second related to evidence by reply witnesses who introduced a purely collateral matter, namely the accused's ability to play basketball without using a wheelchair. In the course of this cross‑examination the issue was squarely put to the accused that he had been lying in his examination‑in‑chief when he said he played basketball only with the aid of a wheelchair. The process reduced itself to a simple sharp attack in front of the jury on the accused's credibility on an issue wholly collateral.

These are the consequences that flow from a violation of one of the fundamental precepts of our criminal process, namely the dividing of the prosecution's case so as to sandwich the defence. This is a particularly lethal tactic where the evidence in reply raises a new issue and attacks the accused's credibility for this is the last evidence which the members of the jury hear prior to their deliberations. It also raises the question as to the propriety of the Crown's conduct in the context of the accused's right to elect to remain silent or to elect to enter the witness box in his own defence. He must be given the opportunity of making this decision in the full awareness of the Crown's complete case. This did not occur in these proceedings.

Section 613(1)(b)(iii) of the Criminal Code cannot be invoked in these circumstances. The reviewing tribunal cannot, with anything approaching reality, retry the case to assess the worth of the residual evidence after the improperly adduced evidence has been extracted from the record. The appellate tribunal does not have the advantage of seeing the witnesses, and in any case, was never intended in the criminal process to replace the jury. It is unnecessary to reopen the many authorities in this Court on the application of s. 613(1)(b)(iii) of the Criminal Code because the situation resulting from the trial in these proceedings fails to qualify under any of these authorities for the application of the proviso in s. 613(1)(b)(iii).

The accused's appeal succeeds, the conviction for rape is quashed and a new trial ordered on that count of rape. As the conviction for rape, the foundation upon which the convictions at trial for the other offences were set aside and quashed under the "Kienapple principle", no longer exists, it is unnecessary to address the issues raised by the Crown appeals as regards the alleged improper application by the Court of Appeal of the principle in Kienapple to those convictions. It is sufficient, in this case, to allow the Crown appeals for the purpose of ordering a new trial on all five counts.