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PROCEDURE-CROSS-EXAMINATION OF ACCUSED ON STATEMENT NOT ENTERED BY CROWN

R. c. ROBERT, 2023 QCCA 378, MARCH 23, 2023.

FACTS:  The accused was charged with the offence of sexual assault.  During his trial, the Crown sought to cross-examine him on a comment he had made to a friend concerning what had occurred and which the Crown submitted was inconsistent with his evidence.  The Crown had not led the comment as evidence in its case. The trial judge would not allow the cross-examination and the accused was acquitted.  The Crown appealed. 

HELD: The appeal was allowed and a new trial ordered.  The Quebec Court of Appeal concluded that the accused’s inconsistent statement was admissible to test his credibility and the prosecution could prove it without violating the rule against splitting its case or the collateral fact rule.

The following summary of the Court of Appeal’s judgment is found on its webpage (https://courdappelduquebec.ca/en/).

The respondent was acquitted on one count of sexual assault causing bodily harm. During the cross-examination of the respondent, the trial judge erred in preventing the prosecution from presenting evidence of a prior inconsistent statement which he denied making to a friend on night of the events: [translation] “I stopped because she was too drunk” (para.  8). The judge also erred in applying the wrong test with respect to the complainant’s capacity to consent to sexual relations with the respondent.

The respondent’s inconsistent statement was admissible to test his credibility and the prosecution could prove it without violating the rule against splitting its case or the collateral fact rule. A new trial must be held as this evidence became important and could have influenced the outcome of the case.

The prosecution wanted to prove the respondent’s inconsistent statement so that it could be taken into consideration in the assessment of his credibility. In this context, the prosecution did not have to present the testimony of the respondent’s friend as part of its case-in-chief. Since the respondent denied the statement, this evidence became relevant given the respondent’s assertion that the complainant had consented to the sexual activities and was capable of doing so. The approach suggested by the prosecution to contradict the respondent is consistent with the teachings of M.D. c. R. (C.A., 2022-06-28), 2022 QCCA 915, SOQUIJ AZ-51862788, 2022EXP-1893, on section 11 of the Canada Evidence Act (R.S.C. 1985, c. C-5), and respects the requirements Mandeville c. R. (C.A., 1992-02-24), SOQUIJ AZ-92011640, J.E. 92-808, [1992] R.J.Q. 1185. The cross-examination was lawful and appropriate. Given the limited objectives sought in this case, it was not necessary to decide whether the prosecution had the obligation to file this statement as part of the case-in-chief to operate as evidence on the merits.

Due to the disclosure of evidence, the respondent was aware of the content of the inconsistent statement attributed to him. The approach suggested by the prosecution did not cause any unfairness to him. The prosecution’s decision not to call the respondent’s friend as a witness was not an unfair change of strategy. It is common ground that the prosecution does not unlawfully split its evidence when it does not file an accused’s free and voluntary statement to the police as part of its case-in-chief but saves it to use during cross-examination. It cannot be otherwise when a prior inconsistent statement was made to another person. Cormier c. R. (C.A., 1993-09-20), SOQUIJ AZ-93011883, J.E. 93-1677, [1993] R.J.Q. 2723, confirms the admissibility of rebuttal evidence that could have been presented as part of the case-in-chief, but becomes more obviously relevant during the trial, as in this case. Unlike R. v. Krause (S.C. Can., 1986-11-06), SOQUIJ AZ-86111080, J.E. 86-1137, [1986] 2 R.C.S. 466, the respondent’s prior inconsistent statement did not concern a collateral fact, but rather an issue central to the charge. The prosecution could cross-examine the respondent about his prior inconsistent statement and prove that statement during his cross examination or during rebuttal evidence. There was nothing unusual or unfair about the prosecution’s approach. The judge’s error had a material effect on the acquittal.