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Evidence - Witnesses - Credibility - Examination - Cross-examination - Range of examination

Thursday, November 10, 2016 @ 7:00 PM  

Appeal by the accused from conviction for sexual interference against his stepdaughter. The parties had agreed that unless the appellant raised the issues himself, Crown counsel would not cross-examine the appellant about his departure and six-month absence from the jurisdiction after he was arrested and charged, his failure to attend his first preliminary inquiry, and his subsequent guilty plea, conviction and sentence for failing to attend. In response to Crown counsel’s question during the appellant’s cross-examination as to whether the appellant wanted to clear these charges up as soon as possible, the appellant stated that he left the jurisdiction, but came all the way across Canada and turned himself into the police station on his own accord. Crown counsel then obtained a ruling permitting Crown counsel to question the appellant about his post-arrest conduct. The trial judge concluded that the appellant had put his post-offence conduct into issue by his answer. Crown counsel invited the jury in his closing to use the evidence of the appellant’s post-arrest conduct to negatively assess the appellant’s credibility. The trial judge gave no caution to the jury about using the post-arrest conduct to assess the appellant’s credibility.

HELD: Appeal allowed. New trial ordered. Crown counsel’s question opened the door to the appellant’s response concerning his post-arrest conduct and resulted in unfairness to the appellant. Crown counsel should reasonably have foreseen the possibility that the question would lead the appellant into evidence about his post-arrest conduct. Crown counsel’s question was ill-advised and generated evidence that should not have been before the jury given the agreement between counsel. Introduction of the appellant’s post-arrest conduct affected the jury’s assessment of the appellant’s credibility and prejudiced the appellant in his defence. In a case turning entirely on credibility assessment, the appellant had demonstrated the requisite prejudice resulting in a miscarriage of justice.