R. v. AVILA, 2025 BCCA 5, JANUARY 9, 2025.

FACTS:  The accused was convicted of the offence of sexual assault.  He appealed from conviction, arguing that the trial judge erred (1) in limiting his cross-examination of the complainant in relation to a prior statement; and (2) in allowing the Crown to lead evidence of other sexual activity the complainant had with the accused, without having held a voir dire.

HELD: The appeal was allowed, and a new trial ordered. The British Columbia Court of Appeal concluded that the trial judge erred in both respects. Though it would have applied the “curative proviso” to the first error. It concluded it was inappropriate to do so in relation to the second error.

The Cross-Examination:

The accused sought to cross-examine the complainant upon a portion of a statement she had provided to the police.  In that portion, she referred to being present when her mother spoke to the accused and she described for the police what was said.

The Court of Appeal described the circumstances involved in the following manner (at paragraph 23):

Under questioning by the Crown, the complainant described a dinner interaction between her mother and the appellant in which the mother “… started asking him questions … [and] obviously didn’t like what she was hearing because she ended up … kind of accusing him of stuff”. However, the complainant said she could not remember the details of the conversation. She agreed with Crown counsel that it consisted of “small stuff”. Defence counsel wanted to challenge the complainant on this testimony with reference to a statement she made to the police offering greater detail about the dinner conversation. According to a summary of that statement read to the judge by defence counsel, the complainant told the police: “My mom was drunk and she really didn’t like [the appellant]. Like, right off the bat, she was, like, accusing him of being Filipino, and stuff, and being a liar and just a whole bunch of random stuff”.

The Court of Appeal concluded that the trial judge erred in “not allowing defence counsel to use this part of the complainant’s police statement as a prior inconsistent statement for the purpose of impeachment” (at paragraph 25):

Contrary to the Crown’s submission on appeal, this portion of the statement did provide a basis from which the appellant could challenge the credibility of the complainant’s testimony about her recollection of the dynamics between the appellant and her mother, as they unfolded in her presence. The complainant testified that she did not remember the details of the dinner conversation and then agreed with Crown counsel’s characterization of the conversation as “small stuff”. Her police statement suggested otherwise. If she acknowledged making the statement and accepted that she was being truthful at the time, a possible inference to draw from the admission would be that contrary to her testimony, she did remember the nature of the dinner conversation with her mother, she understood that it was adverse with a racial undertone, and she was intentionally downplaying what she had witnessed when she agreed with Crown counsel’s characterization of the incident as “small stuff”.

The Curative Proviso:

In deciding to apply this provision to this error, the Court of Appeal indicated that “[u]ltimately, the curtailed cross-examination did not deprive the appellant of an evidentiary foundation from which to challenge the complainant’s credibility or to advance his theory of fabrication and influence by the mother. From that foundation, he ended up making the submission he sought to make.  Accordingly, the error was harmless and resulted in no substantial wrong” (at paragraph 37).

Section 276 and the Lack of a Voir Dire:

Prior to the trial commencing, the accused had filed a section 276 application.  It was dismissed. However, as noted by the Court of Appeal, “[d]espite the s. 276 rulings (not contested on appeal), evidence of other sexual activity did make its way into the trial record. Unfortunately, that evidence was elicited by both parties without paying close attention to the limitations imposed by the prior rulings, or the admissibility framework that governs the Crown’s use of this type of evidence” (at paragraph 47).

The Crown conceded there should have been a voir dire before the evidence of other sexual activity was presented and that the judge committed an error of law by failing to hold one.  The Court of Appeal agreed.

The Curative Proviso:

In declining to apply this provision for this error, the Court of Appeal indicated that it could not “say with confidence that in this case, the failure to hold a voir dire before the Crown-led evidence of other sexual activity was harmless or trivial, such that there is no reasonable possibility the jury’s verdict would have been different had the error not been made…Accordingly, it is not appropriate to apply the curative proviso and I would accede to this ground of appeal” (at paragraph 99).