R v M.D.

R. v. M.D.

2020 ONCA 290
Court of Appeal for Ontario — Feldman, Harvison Young and Jamal JJ.A. | May 14, 2020

Background

M.D., a bar manager, was charged with sexually assaulting a 19-year-old university student who worked as a hostess at his bar. The complainant alleged that during her fifth shift, after consuming about ten shots of alcohol, M.D. followed her into a washroom where she was vomiting and sexually assaulted her while she was intoxicated and unable to consent. M.D. testified that the encounter was consensual — that the complainant led him into the washroom and initiated the sexual activity.

The trial judge convicted M.D., finding the complainant's evidence credible and rejecting M.D.'s testimony. Among his reasons for disbelieving M.D., the trial judge stated that he "formed the impression" that "many of [M.D.'s] answers were tailored precisely to the evidence he knew would be forthcoming or to the forensic disclosure." The judge criticized M.D. for having attended the preliminary hearing, received Crown disclosure, and heard all the Crown witnesses testify before giving his own evidence.

Issues

1. Did the trial judge err by rejecting the appellant's evidence on the basis that he seemed to have tailored his testimony to the disclosure and evidence he knew would be forthcoming?
2. Should the curative proviso apply if an error is found?

The Constitutional Rights Trap

The Court of Appeal found that the trial judge made a fundamental legal error by using M.D.'s constitutional rights against him. The court explained that accused persons have a constitutional right to receive Crown disclosure and to be present at their trial under s. 650(1) of the Criminal Code. These rights are grounded in Charter guarantees to a fair trial and to make full answer and defence.

The court relied on a long line of cases including R. v. White, R. v. Schell, R. v. Thain, and R. v. Jorgge establishing that it's improper for judges or Crown counsel to suggest an accused "tailored" their evidence based on disclosure or their presence at trial. As Doherty J.A. explained in White: "That inference, no matter how logical, cannot be drawn without turning fundamental constitutional rights into a trap for accused persons."

The court acknowledged there may be a "natural temptation" to reason this way, but emphasized that this temptation "must be resisted" because it undermines an accused's statutory right to be present and constitutional rights to fair trial and full answer and defence.

Key Takeaway

Trial judges cannot use an accused person's exercise of their constitutional rights as evidence against them.

If you're facing charges and the judge or Crown suggests you're "tailoring" your evidence because you received disclosure or were present during the Crown's case, this is a serious legal error that can form the basis of a successful appeal. Your right to know the case against you and to be present at your trial cannot be turned into evidence of dishonesty.