R. v. Shearing

R. v. Shearing
Collection
Supreme Court Judgments
Date
2002-07-18
Neutral citation
2002 SCC 58
Report
[2002] 3 SCR 33
Case number
27782
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 27782
Decision Content
R. v. Shearing, [2002] 3 S.C.R. 33, 2002 SCC 58
Ivon Shearing Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for Ontario,
the Women’s Legal Education and Action Fund,
and the Criminal Lawyers' Association (Ontario) Interveners
Indexed as: R. v. Shearing
Neutral citation: 2002 SCC 58.
File No.: 27782.
2001: October 9; 2002: July 18.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for british columbia
Criminal law – Evidence – Similar fact evidence – Admissibility – Leader of a cult charged with sexual offences relating to multiple complainants — Two complainants not members of accused’s cult but resident with accused — Remaining complainants disciples of accused — Whether evidence of each count of sexual misconduct was admissible as similar fact evidence of all other charges.
Criminal law – Evidence – Cross-examination — Sexual offences – Diary – Trial judge permitting cross-examination of one complainant with respect to specific entries in her diary arguably inconsistent with her testimony at trial but not with respect to absence of any references to abuse in diary — Whether cross-examination on absence of reference to abuse should have been allowed.
The accused was the leader of a cult which believed that enlightenment is reached through ascension by steps of consciousness. He preached that sexual experience was a way to progress to higher levels and that he, as cult leader, could be instrumental in enabling young girls to reach higher levels through sexual and spiritual contact. He was charged with 20 counts of sexual offences alleged to have occurred between 1965 and 1990. Two of the 11 complainants were sisters who had resided with the accused at the cult’s group residence while teenagers. They were not adherents of the cult and lived at the group home only because their mother was a member and the resident housekeeper. The other complainants were believers. The trial judge dismissed an application by the accused to sever the counts related to the sisters from the other counts. The counts were tried together and each was admitted as similar fact evidence for the others.
One of the complainant sisters kept a daily diary for eight months in 1970. She began it when she was 14 years old. The day‑to‑day entries covered part of the 10‑year period when she alleged sexual abuse by the accused and physical abuse by her mother at the accused’s instigation. When the complainant left the house six years later, her mother put some of her belongings in a cardboard box in their portion of the storage area shared with other residents. The mother moved out in 1995. About 18 months later, after the accused had been indicted, another resident of the house opened the cardboard box, found the complainant’s diary and gave it to the defence. At trial, the defence sought to use the diary to contradict the complainant on the basis of entries arguably inconsistent with her evidence-in-chief, and by showing the absence of any entry chronicling physical or sexual abuse. The complainant objected and, at the voir dire into the admissibility of the diary, asserted a privacy interest. The trial judge permitted the accused to use the diary to cross‑examine the complainant on entries the defence considered probative but did not permit cross‑examination on the absence of any entries recording physical abuse by the mother or sexual abuse by the accused.
A jury convicted the accused of sexual assaults against the two sisters and five other complainants. The Court of Appeal allowed the accused’s appeal with respect to two counts but otherwise dismissed the appeal.
Held (L’Heureux-Dubé and Gonthier JJ. dissenting in part): The appeal should be allowed with respect to the counts relating to the sister who kept the diary and a new trial ordered with respect to those counts only.
Per McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.: Although evidence relating to an accused’s disposition will generally be excluded, exceptions to this rule arise when the probative value of similar fact evidence outweighs its prejudicial effect. In this case, the cogency of the similar fact evidence rests on the validity of the double inference that firstly, the accused had a situation-specific propensity to groom adolescent girls for sexual gratification by exploiting the cult’s beliefs and its domestic arrangements, and secondly, that he proceeded in that way with each complainant. Similarity and unity of the incidents involving the complainant sisters and the others lay in the accused’s modus operandi, his abuse of power and the theme of quack spiritualism. These incidents overlapped and were to some extent concurrent. This proximity in time made the evidence more cogent. The incidents were also spread over many years, demonstrating, if believed, a degree of extended consistency in behaviour. Similar fact evidence supported a finding of situation‑specific behaviour and it was thus open to the jury to draw the double inference.
That said, the trial judge was then required to consider the countervailing issue of potential moral and reasoning prejudice to the accused. The similar fact evidence had significant potential to create moral prejudice and required a high probative value to be admissible. It was inflammatory, and painted the accused as a “bad person” albeit it was not introduced for that purpose and would only incidentally have that effect. It was introduced in response to issues raised by the defence, namely consent in the case of the complainant believers and the defence that the alleged acts never happened in the case of the housekeeper’s daughters.
The combination of sex and spiritualism was inevitably inflammatory. The accused’s defence to the female complainants who were believers (religiously inspired consent) became more delicate when the jury was told that he also had sexual relations with two sisters from the age of 13 who were not disciples but simply residents of his household. Similarly, the accused’s denial of sexual activity with the housekeeper’s daughters may have lost much of its force in light of the admitted sexual touching of other adolescent girls, to which the only defence was consent (vitiated, so the jury must have found, by the abuse of authority).
With respect to reasoning prejudice, the danger was that the jury might become confused by the multiplicity of incidents, and become distracted by the cumulative force of so many allegations from their task of deciding carefully each charge one by one. However, the accused was not taken by surprise nor limited in his response to any allegation and the jury was properly warned about the prohibition on inferring guilt from general disposition.
After weighing up probative value against prejudice, the trial judge concluded that both the prejudicial effect and the probative value of the similar fact evidence were “significant”, but that in the end the probative value prevailed. There is no reason to interfere with that conclusion. Absent error in principle, the decision on weighing probative value against moral and reasoning prejudice rests with the trial judge.
While there was some evidence of opportunity for collusion or collaboration and motive, and of communication among complainants, the evidence was not strong, and the trial judge was right to let the question of collusion go to the jury. The trial judge adequately outlined the defence and did not err by failing to review for the jury each of the alleged dissimilarities in the acts. The dissimilarities clearly emerged in the narrative of each count by each complainant and did not detract very significantly from the probative value of the evidence on the issue of modus operandi.
Cross-examination of the complainants was of critical importance. Evidence relevant to a defence can be excluded only if its prejudicial effect substantially outweighs its probative value. Cross‑examination in a sexual assault case may distort the search for truth if it puts the complainant on trial and limitations have been imposed by the courts to protect a complainant’s privacy interest, particularly where cross-examination may be directed to rape myths. This concern lay at the heart of the trial judge’s ruling. The cogency of the proposed cross‑examination rested on the unspoken premise that sexual assaults, if they occurred, would have been recorded in the diary.
The diary was not wrongfully taken. The real issue concerned the privacy status of the information it contained. Privacy rights have been disentangled from their roots in private property and a loss of physical possession will not necessarily defeat a privacy interest. Sections 278.l to 278.9 of the Criminal Code address production of personal information and had no application to the admissibility or use of the diary. Having rightly rejected the applicability of ss. 278.1 to 278.9 , the trial judge erred on the voir dire by applying principles drawn from O’Connor related to production of documents to determine the admissibility and use of the diary in cross-examination. The balancing of interest test set out in O’Connor applicable to questions of production is not the test for the scope of cross‑examination.
The complainant’s privacy interest did not substantially outweigh the accused’s right to test the complainant’s memory by cross-examination on the absence of entries in the diary recording abuse. The omission of entries recording sexual abuse would be probative only if the defence established its premise, namely that there was a reasonable expectation that recordings of abuse, if abuse occurred, would have been made by the complainant. At the time of the trial, the complainant was an adult. Arguable contradictions between her testimony‑in‑chief and her diary nourished the defence argument that the diary and the omissions provided the more accurate picture of events. The absence of entries recording abuse was potentially probative of the complainant’s credibility. The defence was rightly precluded from asking the jury to assume that if abuse had occurred it would have been recorded, but it does not follow that the defence should have been precluded from attempting to demonstrate its premise before the jury using the diary. The court ought not to have assumed how the complainant would respond to the cross‑examination. The fact that the entries were mundane or that the complainant’s lifestyle or reputation would not be on trial does not eliminate the complainant’s privacy interest but it lessens its weight.
It cannot be said that the verdict on the charges related to this complainant would necessarily have been the same had the cross-examination been permitted, and the curative proviso is therefore inapplicable. An order for a new trial on the charges related to this complainant does not cast doubt on the correctness of the other verdicts. The appeal is therefore dismissed with respect to the other complainants.
Per L’Heureux-Dubé and Gonthier JJ. (dissenting in part): The defence should have been required to return the diary to the complainant and to seek its production through the proper statutory channels. The complainant did not abandon her property interest in her diary. Where an individual retains a privacy interest in her property, she cannot be deemed to have abandoned the property. A party alleging abandonment of private goods faces a significant burden of proving a giving up, a total desertion and an absolute relinquishment of the goods. Here, the complainant’s property interest necessarily encompassed her privacy interest, and thus the accused’s argument that he did not illegally possess the diary because the complainant had abandoned it is without merit. Some of the concerns posed at the production stage of documents may not be present if the accused has already examined the contents of the record to be produced, but this is not an adequate reason to allow accused persons to benefit from unlawfully or wrongfully circumventing the statutory scheme. Such a result frustrates the purpose of the legislation and the constitutional rights of sexual assault victims.
The trial judge correctly refused the defence’s cross‑examination on the absence of references to abuse in the diary. Defence evidence is only admissible if its probative value substantially outweighs its prejudicial effect. In weighing prejudicial and probative value, the trial judge must consider the complainant’s privacy and equality rights as well as the accused’s right to full answer and defence. The proposed questions on the absence of entries would have introduced a high potential of prejudice to the complainant, substantially outweighing their probative value. A teenager’s diary is high on the spectrum of records in which one has a privacy interest and the complainant had a reasonable, continuing expectation of privacy. Her diary was an outlet for personal self‑expression recording intimate details of part of her life and the fact that the entries were mundane did not lessen her privacy interest. The court does not examine the contents of a private document to evaluate a privacy interest because informational privacy derives from an assumption that all information about a person is in a fundamental way his or her own. The extensive, wide-ranging cross‑examination of much of the entire contents of the diary required to establish an absence of mention of abuse would have aggravated the violation of privacy rights. Moreover, the process of establishing the reliability of the evidence would be time‑consuming and potentially sidetrack the trial.
This Court must be sensitive to equality concerns and the policy of encouraging reports of sexual assaults. The defence’s rejection of a tailored cross‑examination was fatal. Allowing cross‑examination on the absence of entries recording abuse would have endorsed the same discriminatory beliefs that underlie the unfounded “recent complaint” myth and wrongly implied that the absence of such entries is support for a conclusion that the events were fabricated. The trial judge correctly considered the proposed cross-examination on a voir dire. The defence had a full and fair opportunity on the voir dire to lay a rational foundation for the cross‑examination but failed to demonstrate any valid reason or rational basis for the questioning. The trial judge correctly held that the probative value of the evidence was minimal, if anything. Furthermore, the right of the accused to make full answer and defence does not stand or fall on whether the accused may engage in this particular line of cross-examination.
As found by the majority, the trial judge did not err in admitting the similar fact evidence.
Cases Cited
By Binnie J.
Applied: R. v. Handy, [2002] 2 S.C.R. 908, 2002 SCC 56; explained: R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. Mills, [1999] 3 S.C.R. 668; referred to: Sweitzer v. The Queen, [1982] 1 S.C.R. 949; R. v. B. (C.R.), [1990] 1 S.C.R. 717; R. v. C. (M.H.), [1991] 1 S.C.R. 763; R. v. Litchfield, [1993] 4 S.C.R. 333; R. v. B. (F.F.), [1993] 1 S.C.R. 697; R. v. Lepage, [1995] 1 S.C.R. 654; R. v. Arp, [1998] 3 S.C.R. 339; Director of Public Prosecutions v. Boardman, [1975] A.C. 421; R. v. D. (L.E.), [1989] 2 S.C.R. 111; R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Colarusso, [1994] 1 S.C.R. 20; Morris v. The Queen, [1983] 2 S.C.R. 190; R. v. R.M. (1997), 93 B.C.A.C. 81; R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43; R. v. Bevan, [1993] 2 S.C.R. 599; R. v. Jolivet, [2000] 1 S.C.R. 751, 2000 SCC 29.
By L’Heureux-Dubé J. (dissenting in part)
R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Osolin, [1993] 4 S.C.R. 595; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Plant, [1993] 3 S.C.R. 281; R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43.
Statutes and Regulations Cited
Act to amend the Criminal Code (production of records in sexual offence proceedings), S.C. 1997, c. 30, Preamble.
Canadian Charter of Rights and Freedoms, ss. 7 , 8 , 11 (d).
Criminal Code, R.S.C. 1985, c. C-46, ss. 265(3) , 278.1 to 278.9 [ad. 1997, c. 30, s. 1], 278.2(1) [am. 1998, c. 9, s. 3], 278.3(5), 278.5(2)(f), (g), 278.6(1), 686(1)(b)(iii).
Authors Cited
Black, Henry Campbell. Black’s Law Dictionary, 6th ed. St. Paul, Minn.: West Publishing Co., 1990, “abandonment”.
Brown, Ray Andrews. The Law of Personal Property, 2nd ed. Chicago: Callaghan, 1955.
LaVacca, Joyce B. “Protecting the Contents of a Personal Diary from Unwanted Eyes” (1988), 19 Rutgers L.J. 389.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. IA. Revised by Peter Tillers. Boston: Little, Brown & Co., 1983.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 3A. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1970.
APPEAL from a judgment of the British Columbia Court of Appeal (2000), 143 C.C.C. (3d) 233, 133 B.C.A.C. 121, 217 W.A.C. 121, 31 C.R. (5th) 177, [2000] B.C.J. No. 235 (QL), 2000 BCCA 83, which allowed an appeal with respect to two counts from a decision of Henderson J. but otherwise affirmed the decision. Appeal allowed in part, L’Heureux-Dubé and Gonthier JJ. dissenting in part.
Richard C. C. Peck, Q.C., David M. Paciocco and Nikos Harris, for the appellant.
William F. Ehrcke, Q.C., and Jennifer Duncan, for the respondent.
Leslie Paine and Christine Bartlett‑Hughes, for the intervener the Attorney General for Ontario.
Sheilah Martin, Q.C., and Ritu Khullar, for the intervener Women’s Legal Education and Action Fund.
Frank Addario, for the intervener Criminal Lawyers’ Association (Ontario).
The judgment of McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. was delivered by
1 Binnie J. – This appeal requires us to consider the appropriate limits on the cross-examination of a 42-year-old woman complainant about the contents of a diary she kept as a teenager at the time of alleged sexual abuse, some 27 years before the trial. We must, as well, consider the admissibility of similar fact evidence of other complainants. These and subsidiary questions arise in the prosecution of the appellant, the leader of a marginal cult called the Kabalarians, for sexual offences between 1965 and 1990 that included indecent assault, gross indecency and sexual intercourse with a person under 14 years old. At trial, the appellant was convicted by a British Columbia jury of sexual assault of his housekeeper’s two teenage daughters, one of whom is the diarist, and five other young women who were led to believe that what appeared to be sexual misconduct was in fact a religious experience. The appellant was acquitted of all charges in respect of the other complainants.
2 These convictions were upheld by the British Columbia Court of Appeal with two exceptions not relevant to the legal issues just mentioned: (2000), 143 C.C.C. (3d) 233. There is no cross-appeal on those counts. In my opinion, the appellant’s further appeal to this Court should be allowed with respect to the counts relating to one of the housekeeper’s daughters (KWG), and a new trial ordered in that respect. The appeal with respect to the other six complainants should be dismissed.
I. Facts
A. The Kabalarian Teaching
3 The Kabalarians are a secretive society whose original philosophy seems to have been reduced by the appellant to a hodge-podge of spiritual fantasies (e.g., having sex with disembodied minds). Kabalarians believe that enlightenment is reached through ascension by steps of consciousness. Sexual experience, the appellant says, is a key way to progress to the next level. Perhaps not surprisingly, the appellant preached that he, as the leader, could be instrumental in enabling young girls to reach these higher levels through sexual/spiritual contact with him. The Kabalarian teaching was summarized in part by Donald J.A. in the British Columbia Court of Appeal (citing the appellant’s factum), as follows (at para. 18):
It is the duty of parents to teach their children to develop their minds. Unbalanced minds continue after the death of a body and can be dangerous to living minds by becoming disembodied minds. A living person who is in a negative state of mind is in danger of drawing from the plane of disembodied minds. A person who is having a sexual problem could attract from the negative sexual plane of mind. That person would then need a session to remove the disembodied mind through a medium. This is referred to as “mental work” and could be performed by Mr. Parker [the founder of the Kabalarian philosophy and predecessor to the appellant] and later by [the appellant].
4 Several of the complainants described the appellant’s statements in like terms: he talked about relieving them of “a negative plane of mind”, helping the complainant to become a “medium”, assisting a complainant’s spiritual development to reach a higher plane of mind through him (since he was a “high spiritual being”), performing a “mental demonstration” (while engaged in physical sexual touching), being close to the “principle” (“universal consciousness”), developing the complainant into an “instrument” and reaching mental oneness through physical oneness. The appellant told some of them during “mental demonstrations” that their negative or disembodied plane of mind revealed that they wanted to be raped.
5 I should make it clear that the Kabalarian philosophy as such is not and never was on trial. Its relevance to this case is only as background to the distinctive sexual embellishments apparently added by the appellant. There was some evidence that these sexual embellishments were not part of Kabalarianism under the leadership of the appellant’s predecessor.
6 The appellant cautioned his “pupils” that they shared a special relationship or bond with him and should not tell anyone else. He suggested to some of the complainants that they were being subjected to sexual intercourse while they slept by the “minds” of dead priests. Many of the complainants testified that since the appellant was the spiritual leader of the Kabalarians, they believed at the time that his purpose was spiritual and not for his own sexual gratification. There was shock on the part of some when he used the word “fuck” because the Kabalarian philosophy did not permit swearing. One testified that the appellant said his “sperm was spiritual [and] that it would not make [her] pregnant”.
B. The Complainants
7 The 11 original complainants were divided into two groups by the defence for procedural purposes including assessing similar fact evidence, grouping similar defences, and the application for severance of the charges.
(1) The Housekeeper’s Daughters
8 The “G” complainants are two sisters (KWG and SG) who resided with the appellant at a group Kabalarian residence (the “Centre”) located in Vancouver. The two sisters, about a year apart in age, lived on the top floor of the house in one room with their mother, who had earlier been the housekeeper for the Kabalarians’ founder and stayed on to work with the appellant. The mother was a believer. The sisters were not. For most of the time the appellant was the only adult male in the household of 10 to 12 people. SG said they believed that if they resisted the appellant’s sexual advances they and their mother would be “kicked out” of the house. The appellant’s defence to the charges of sexual abuse of the G complainants was simply that the alleged acts never occurred. He did not testify at the trial.
(2) The Teenage Disciples
9 The “non-G” complainants did not reside with the appellant but in their own homes located close to the Centre where they went for “religious” instruction. They were believers. The situs of the alleged misconduct was at the Centre itself or at a summer camp run by the Kabalarians in the Okanagan Valley. Those counts that led to convictions generally alleged less serious offences than those alleged by the G sisters. The appellant’s defence, moreover, was different in that he conceded sexual touching occurred but argued that either the non-G complainants consented or that he reasonably believed that they had consented.
C. The Application for Severance
10 The appellant applied at trial for a severance of the counts related to the G complainants from the other complainants but this was denied by the trial judge who ruled that the 20 counts were similar fact evidence for one another and could therefore appropriately be tried together.
D. The Diary
11 One of the housekeeper’s daughters, KWG, kept a daily diary for eight months in 1970. She began it when she was 14 years old. The day-to-day entries covered part of the 10-year period (December 1966 to January 1976) when she alleged sexual abuse by the appellant and physical abuse by her mother at the appellant’s instigation. The diary made no mention of either kind of abuse. When she left the house six years later, in a hurry she says, her mother put some of her belongings in a cardboard box in a storage area shared with other residents. Over 22 years later, after the appellant had been indicted, another resident of the house stumbled across the diary (mistaking the cardboard box to be her own). Seeing KWG’s name written on the diary, she realized what it was and turned it over to the defence without alerting either KWG, the Crown or the police. The existence of the diary was not disclosed by the defence until mid-trial after KWG had completed her evidence-in-chief.
II. Constitutional and Statutory Provisions
12 Canadian Charter of Rights and Freedoms
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
11. Any person charged with an offence has the right
. . .
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
Criminal Code, R.S.C. 1985, c. C-46
265. . . .
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
. . .
278.1 For the purposes of sections 278.2 to 278.9 , “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing . . . personal journals and diaries . . . .
278.2 (1) No record relating to a complainant or a witness shall be produced to an accused in any proceedings in respect of [listing designated offences] . . . except in accordance with sections 278.3 to 278.91.
III. Judgments
A. British Columbia Supreme Court __ Henderson J.
(1) Severance of the Counts / Similar Fact Evidence
13 At the trial, defence counsel applied after the non-G complainants testified and before the G sisters were examined to have the G counts severed from the counts relating to the other (original) nine complainants. The trial judge ruled the evidence to be admissible as similar facts:
In my view, the prejudicial effect of the [G] evidence is, in this case, outweighed by its probative value. The nature of the sexual acts testified to by the [Gs], their frequency, and the sorts of things said by the accused to the [Gs] will, if believed by the jury, assist them in assessing the credibility of an assertion by the accused that the other acts with the other complainants were not sexual in nature but intended only to serve a spiritual purpose. That appears to be the fundamental issue with regard to those complainants. It is said that they consented through fraud, the fraud being the misrepresentation to which I have referred.
The evidence of the [Gs] is highly relevant to that central issue as it tends to rebut a defence of an innocent non-sexual purpose and a genuine consent by the complainants.
14 Having ruled the evidence admissible as similar facts, the trial judge dismissed the severance application.
(2) Cross-examination on the Personal Diary
15 The trial judge said the threshold issue was
whether or not [KWG] has waived any interest in maintaining privacy over the information as opposed to caring about possession of the physical paper. She may have abandoned the piece of paper, she may not need it or want it anymore. That doesn’t necessarily mean she is happy to have the world know about the information that’s in there.
The trial judge also held that ss. 278.1 to 278.9 of the Criminal Code did not apply because the diary was already in the possession of the defence. No order of production was therefore either sought or required.
16 Applying the principles set out in R. v. O’Connor, [1995] 4 S.C.R. 411, the trial judge looked to the “individual pieces of information that [defence counsel] seeks to elicit and the way in which he intends to use the diary in order to determine, item by item, whether the balance is tipped in favour of the accused’s right to make full answer and defence or, alternatively, tipped in favour of preserving the continuing privacy interests of the complainant”.
17 The trial judge ruled that the appellant would be permitted to use the diary in all the ways he asked, except for two: he would not be able to cross-examine about the lack of references in the diary to KWG being beaten by her mother, nor could he cross-examine on the lack of references in the diary to the alleged sexual assaults. The appellant was permitted to use the diary in all the other ways sought, including to contradict KWG’s evidence about publicly observable events, such as school activities attended, clothing worn and events celebrated. He was permitted to use the diary to show that she expressed in it positive feelings towards the appellant. He was permitted to cross-examine KWG on the fact that the diary covered a period of eight months, when she had earlier said in her evidence that she only kept a diary for a couple of weeks. And he was permitted to cross-examine her on the fact that although she had earlier testified that the sexual acts occurred in the appellant’s den on a fairly regular basis, the diary showed that the den was undergoing major renovations which resulted in its not being used for a period of about three months in the spring of 1970.
18 In short, the appellant was permitted to cross-examine on each of the entries he considered probative, but not on the absence of entries dealing with physical and sexual abuse.
B. British Columbia Court of Appeal (2000), 143 C.C.C. (3d) 233
19 The court, per Donald J.A., dealt with the appeal as follows:
(1) Similar Fact Evidence
20 Donald J.A. concluded that the “evidence was such that a reasonable jury properly instructed could find in the words of the trial judge ‘substantial and significant similarities’ constituting a pattern and it was proper for the trial judge to let the jury use the evidence as similar facts if they chose to do so” (para. 67).
21 As to the defence objection that the trial judge should have listed the dissimilarities along with the similarities in his charge to the jury, Donald J.A. acknowledged that it “would have been preferable” (para. 68) for the trial judge to do so, but in the circumstances of this trial, it had not been necessary. Both sides’ counsel thoroughly discussed the similarities and dissimilarities and the “differences stressed by the defence were obvious and unlikely to be ignored by the jury in their deliberations on the similar fact issues. The flaw in the charge was only an imperfection not amounting in my opinion to a reversible error” (para. 69).
(2) Diary
22 The appellant contended that the restriction on cross-examining the complainant on certain aspects of her diary impeded his right to full answer and defence. He did not seek “production” under ss. 278.1 to 278.9 of the Criminal Code . Rather than a “simple balanc[ing]” of privacy rights and probative value as in an O’Connor motion for production of third party records, the trial judge should have required that the complainant’s privacy right be shown to “substantially outweigh” the defendant’s fair trial rights: R. v. Seaboyer, [1991] 2 S.C.R. 577, and R. v. Osolin, [1993] 4 S.C.R. 595.
23 Donald J.A. held that R. v. Mills, [1999] 3 S.C.R. 668, “shifted the balance away from the primary emphasis on the rights of the accused” (para. 93) and introduced a “new direction” (para. 96). Mills, he wrote, “requires a reconsideration of the position of the complainant, and in particular the equality rights of the complainant, so as to effectively guard against procedures which deny complainants equal access to and benefit of the law” (para. 93).
24 Donald J.A. agreed that there was a high privacy intrusion since questioning on the absence of entries could not be done without opening the whole diary to scrutiny (para. 87); further, the prosecution may then have been “compelled to fully review the contents to show that such reference was not in keeping with the apparent purpose of the diary” (para. 72). The complainant KWG was a “virtual prisoner” at the Kabalarian Centre and under the powerful control of the appellant. It would be “highly unlikely that she would record the abuse” (para. 86). Further, Donald J.A., after having “perused” the diary, concluded that the “style and content do not suggest that if abuse had occurred the complainant would have confided it to her diary” (para. 86).
(3) Disposition
25 The court allowed the appeal with respect to two counts because the charge to the jury did not distinguish the counts which pre-dated from those which post-dated the s. 265 amendment to the Criminal Code in 1983 that provided that the abuse of authority could vitiate consent. This error was conceded by Crown counsel. A new trial was ordered on these counts. The appeal was otherwise dismissed.
IV. Analysis
26 The appellant says that he was denied the opportunity to make full answer and defence in two important ways. First he was confronted with irrelevant evidence in the counts involving the housekeeper’s daughters, namely the so-called “similar fact” evidence of the other complainants, and vice versa. Secondly, he was denied the opportunity to use to the full the relevant evidence already in his possession, namely the diary, in his cross-examination of KWG. The existence of the diary caught her unawares after she had committed herself to a particular version of events during her evidence-in-chief and he was entitled to shake her credibility in cross-examination by demonstrating inconsistencies between her testimony and what was (or was not) recorded.
27 I will deal with these contentions and a number of subsidiary points, in turn.
A. The Similar Fact Evidence
28 It is not possible in this case to understand the full measure of the situation confronting the trial judge and counsel without saying something about the allegations made by each of the principal complainants.
29 Donald J.A. helpfully summarized the alleged “similar facts” relating to each of these complainants and, for convenience, I reproduce his description with a few minor additions and subtractions (at paras. 21-52):
K. W.-G. [KWG]
[KWG], her younger sister S.G., and her mother moved into the Centre when [KWG] was seven years old. . . .
. . .
The first incident of [the appellant allegedly] touching [KWG] occurred when she was twelve years old. He told her not to tell anyone, especially her mother.
[KWG] described numerous incidents of sexual touching in the den, the stairwell and the shower. In one incident in the den [the appellant] spoke of “removing disembodied planes of mind” and told her he was going to make her into a beautiful young lady. Acts of intercourse began when [KWG] was 13. These events occurred approximately once per month and continued until she moved out of the house [when she was about 20].
. . .
. . . At the time of the trial [KWG] had commenced civil proceedings against [the appellant] and the Kabalarian Society.
S.G.
S.G. moved into the Centre when she was six years old and resided there until she was 18. She described life at the Centre as a “living hell”.
The first incident of sexual touching occurred when she was twelve. [The appellant allegedly] tickled her and touched her breasts. After that, whenever she was alone with him he would try to touch her breasts.
When S.G. was 13 [the appellant] told her that he was thinking of making her an “instrument” and she must trust him completely. He then [allegedly] fondled her breasts and told her not to tell anyone.
Between the ages of 13 and 18, S.[G.] [allegedly] performed oral sex on [the appellant] at least 30 times. When she was 14 he performed oral sex on her and this occurred at least 50 times over the next four years. They first had intercourse when S.[G.] was 18. [S.G. ultimately had an abortion. She said the appellant was the father.]
. . .
C.K.
C.[K.]’s parents joined the [Kabalarians] when she was nine years old. [She] participated in [Kabalarian schooling] and went to the [Kabalarian Camp] in the summers.
[The appellant allegedly] kissed C.[K.] when she was 13 in September or October 1970. The next incident of sexual touching occurred in 1971. Similar incidents took place approximately four times per month, usually in the den at the Centre, until C.[K.] was about 19.
C.[K.] testified that during the touching [the appellant] told her that [it was not for his satisfaction but] to remove a condition or plane of mind that was affecting her. When she was about 16 the discussion turned to her potential to become a medium. [C.K. was a believer.]
. . .
C.[K.] ceased involvement with the [Kabalarians] at about 23 or 24 years of age.
J.V.
J.V. became a Kabalarian at age five when her mother joined the [group].
In 1972 . . . [i]t was revealed by [the appellant] that the mind of a dead priest had been raping J.V. in her sleep. [When they were alone, the appellant] touched and kissed J.V.’s breasts and told her that she was a beautiful young woman and that this experience brought her mentally closer to him and the “principle”.
A series of sexual touching incidents occurred in the den at the Centre. There was one instance of digital vaginal penetration.
J.V. testified that she did not [at the time] regard the touching as being sexual acts, but that [the appellant] was trying to help her mentally. She would not have allowed it to occur had she believed it was for his sexual gratification.
. . .
J.T.
J.T.’s parents were members of the [Kabalarians] when she was born in 1965. She attended Kabalarian [classes] until she was 21.
J.T. described an instance of sexual touching which occurred in the den at the Centre in 1984 when she was aged 19. [The appellant] performed a mental demonstration . . . whereby the voice of a priest came through [one of the women present] and indicated that J.T. had sexual “hang-ups”. [The appellant then] admonished the [dead] priest and put him to sleep. [When J.T. was alone with the appellant he] offered to “help” . . . and rubbed her breasts and placed his hand into her panties. He then plac