CAPCJ ACJCP

cropped-cropped-cropped-CAPCJ-Logo.jpg

Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

THIRD PARTY EVIDENCE-NARRATIVE

In R. v. CBP, 2022 ABCA 29, January 28, 2022, the accused was convicted of the offence of sexual assault in relation his former wife. He appealed from conviction, arguing, in part, that the trial judge erred in:

Admitting and failing to instruct on the use of a third-party witness’s evidence, where the effect was to invite speculation about CP’s guilt.

The Trial:

At the trial, the complainant testified “that a third party, MC, contacted her on Facebook in May 2017. The complainant revealed ‘[MC] reached out to me and I didn’t know them, and they said that they had met [the appellant]’…[T]he Crown asked ‘based on that conversation, what did you do’ [Court of Appeal’s emphasis added]. The complainant responded that she ‘went to the police’” (see paragraph 6).

MC was called as a witness by the Crown.  In direct examination, the following exchange occurred:

Q: All right. Now after that night, did anything happen? What did you do?

A: After that night?

Q: Mm-hm.

A: I waited a few days and I wanted to reach out to [CP’s] wife.

The Court of Appeal:

The appeal was allowed and a new trial ordered. The Alberta Court of Appeal concluded that MC’s evidence was prejudicial to the accused (at paragraph16):

It is true that the Crown did not specifically ask MC about the contents of her conversation with the appellant. It is also true that the Crown did not elicit evidence about what MC revealed to the complainant, which spurred her difficult decision to come forward and report to police. However, implicit in the question “after that night, did anything happen? What did you do?” is a suggestion that as a result of events which transpired on thenight MC and the appellant were together, something happened or was said that led MC to reach out to the complainant. The two parties were unknown to one another. There is no apparent reason why a stranger would contact another person, out of the blue, and make comments leading the recipient of that message to speak with police, unless the person initiating contact came into possession of knowledge or information relating to the offence itself. This was the most obvious and seemingly only plausible inference to be drawn from the available facts. The potential for forbidden reasoning strongly called out for words of caution in the final instruction to the jury.