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Evidence - Tailored Evidence. R. v. Haidary
In R. v. Haidary (Ont CA, 2023) the Court of Appeal considers (and allows) an appeal based on what can be called the criminal 'tailored evidence' rule, here while exploring exceptions to this rule. This doctrine is closely related to basic evidence rules regarding credibility and reliability:[2] In rejecting Mr. Haidary’s exculpatory testimony in its entirety, the trial judge relied materially on his finding that Mr. Haidary had tailored his testimony by changing his account after learning of the evidence available against him. It is “legally wrong” for a trial judge to “discount the credibility of the accused on the basis that they have tailored their evidence to the testimony heard in the courtroom”: R. v. Hudson, 2021 ONCA 772, 158 O.R. (3d) 589, at para. 161, citing R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14; R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230. This is a dangerous form of reasoning that must be avoided by trial judges absent exceptional circumstances, such as alibi defences, even where there may be a logical basis for the finding. This rule operates because “no such inference can be invited or drawn without turning fundamental constitutional rights into a trap and exacting an evidentiary price for their exercise”: Hudson, at para. 161.
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[9] To be clear, no issue can be taken if, in rejecting testimony offered by an accused, a trial judge relies on material discrepancies between that testimony and a prior inconsistent statement made by the accused: R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170 at para. 13. This, of course, occurs regularly since prior inconsistencies can raise logical concerns about the reliability or credibility of in-court testimony. But when a trial judge goes on to make an affirmative finding based on these inconsistencies that the accused changed their version of events by tailoring their testimony to account for evidence that they subsequently learned about, the trial judge has gone beyond the mere consideration of the impact of prior inconsistencies and has added another important makeweight in favour of rejecting entirely the testimony of the accused. To appreciate the point, consider that testimony often survives prior inconsistencies, whereas a finding that the accused tailored their testimony to the evidence requires the rejection of the “tailored” testimony in its entirety. Moreover, a finding that the accused tailored their evidence is a determination that the accused engaged in post-offence conduct in an effort to avoid conviction. Such a finding creates a risk that, advertently or inadvertently, a finding of tailoring will operate as an indicium of guilt. Adding an inference of tailoring is not a benign addendum to the analysis of prior inconsistencies. It is a finding of importance with potentially devastating consequences for the accused.
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[11] The Crown argued in the alternative that even if the trial judge drew adverse inferences of tailoring, this case falls within an exception to the rule against doing so. We do not agree.
[12] First, the Crown argued that adverse inferences of this kind are permitted in alibi cases where a previously undisclosed alibi is presented at trial that conforms to the disclosure or the Crown’s case in chief: R. v. M.D. 2020 ONCA 290, 392 C.C.C. (3d) 29, at para. 26, citing R. v. Khan (1998), 1998 CanLII 15007 (BC CA), 126 C.C.C. (3d) 523 (B.C.C.A.), at paras. 51-52, leave to appeal refused, [2001] S.C.C.A. No. 126; R. v. Marshall (2005), 2005 CanLII 30051 (ON CA), 77 O.R. (3d) 81 (C.A.), at paras. 69-75, leave to appeal refused, [2006] S.C.C.A. No. 105. This exception exists but it does not apply because Mr. Haidary did not present an alibi defence. Mr. Haidary acknowledged in his testimony that he was present at the scene of the alleged crime. Mr. Haidary simply explained his actions and movements while at the scene of the alleged crime in a manner that differed from the account provided by the complainant.
[13] Second, the Crown sought to rely on the decision in R. v. Fraser, 2021 BCCA 432, 407 C.C.C. (3d) 307 at paras. 2, 56-63, leave to appeal refused, 2022 CanLII 30686 (S.C.C.) to submit that there is a “possible exception” to the rule against inferences of tailoring that can be applied on a “case-by-case basis” for prior inconsistent statements, and that this case-by-case exception should be applied in this case.
[14] There is reason to question whether our jurisprudence allows for a case-by-case exception in cases where the inference of tailoring is based on prior inconsistent statements. The rule against using prior inconsistencies as a basis for drawing adverse inferences of tailoring has been stated in absolute terms in this Court: Jorgge at para. 13; M.D., at para. 30. Moreover, there may be reason to question whether such an exception is consistent with the purpose underlying the rule against adverse inferences of tailoring or with recognition that the rule applies even where the inference may be logical. In the circumstances of this case, it is unnecessary to resolve the underlying issue of whether a case-by-case exception operates in Ontario, because even if it does, we would not apply it. The Crown advanced no basis for treating this case as exceptional, nor do we see any basis for doing so.
[15] Unlike Fraser, this case contains no features that promote the application of a case-by-case exception. Fraser was the appeal of a second-degree murder conviction. The issue was whether the conviction should be overturned because the Crown made suggestions of tailoring during cross-examination in a case where the trial judge focused in his jury charge on the inconsistencies in Mr. Fraser’s evidence, without featuring the Crown’s tailoring theory. Put simply, the impugned conduct in Fraser created the risk of unfair reasoning which the trial judge’s charge reduced. In contrast in this case the trial judge unequivocally went beyond considering the dampening impact that prior inconsistent statements can have on an assessment of the reliability or credibility of testimony and used the prior inconsistent statements to support tailoring findings, and then employed those findings as an additional and powerful makeweight in his reasoning.
[16] Moreover, although the BCCA found that the Crown could not rely on a fixed exception to the rule against adverse inferences to support its attempt to invite an inference that Mr. Fraser tailored his evidence, the circumstances of the case were not far-removed from satisfying the exception that the Crown had relied upon. This exception applies where the accused raises prior disclosure for a purpose calculated to aid the defence: R. v. Kokotailo, 2008 BCCA 168, 232 C.C.C. (3d) 279 at para. 56, citing R. v. Cavan, (1999) 1999 CanLII 9309 (ON CA), 139 C.C.C. (3d) 449 (Ont. C.A.), leave to appeal refused, [1999] S.C.C.A. No. 600. The BCCA decided that this exception was not met in Fraser, because Mr. Fraser’s reference to prior evidence was only “oblique” and not explicit. Nonetheless, Mr. Fraser’s testimony provided a specific foundation for the prospect that he may have modified his evidence after learning of Crown evidence. To be clear, the BCCA did not identify this as a factor in its decision to admit the evidence on a case-by-case basis, but this feature nonetheless marks a point of material distinction between Fraser and this case. Whereas Mr. Fraser’s testimony provided a specific foundation for a tailoring inquiry, Mr. Haidary did nothing to open the door and indeed, as we will explain below, he was not even alerted to the possibility that his discovery of the evidence against him prior to his testimony would even be raised.
[17] In our view, there are no circumstances comparable to Fraser in this case, or no other compelling bases for applying a case-by-case exception for prior inconsistent statements.
[18] We are therefore persuaded that in the circumstances of this case no exceptions to the rule against inferences of tailoring were operating in this case, and the trial judge erred in drawing the adverse inferences of tailoring that he did.
B. WAS THE TRIAL RENDERED UNFAIR BY THE FAILURE TO ALERT MR. HAIDARY OF A POSSIBLE INFERENCE OF TAILORING?
[19] We also agree with Mr. Haidary’s alternative but related submission that, apart altogether from the breach of the rule against drawing an inference of tailoring that we have found, the trial was rendered unfair when the trial judge drew an adverse inference of tailoring against him without alerting Mr. Haidary in advance that he may do so. In Thain, at para. 29, Sharpe J.A. said:In my view, the fact that the accused enjoyed his constitutional right to disclosure had no bearing on his credibility in this case and the trial judge erred in law by stating that it did. Even if the disclosure might possibly have had a bearing on credibility, trial fairness demanded that the accused be confronted with the suggestion and afforded the opportunity to refute it or make submissions before being disbelieved on that account. [20] Similarly, in Fraser at para. 63, Frankel J.A. commented that “it would have been improper for counsel to have argued to the jury that Mr. Fraser had concocted his testimony if she had not raised that subject with him.” In this case, the tailoring issue was not raised with Mr. Haidary.
[21] In coming to his conclusion, we accept the Crown submission that it would have been plain to Mr. Haidary that the Crown position was that his trial testimony was a fabrication. However, at no time was Mr. Haidary made aware that changes that he made to his version of events after learning of the evidence against him were going to be relied upon as proof of that fabrication. Had he been so advised he could have attempted to persuade the trial judge that this inference was inappropriate, either legally or factually. The mere allegation of fabrication was not sufficient notice.
[22] It is understandable why the trial Crown did not raise this issue at trial. Absent an exception, it would have been an error for the trial Crown to have confronted Mr. Haidary with the suggestion in cross-examination that he had tailored his evidence, or to invite the trial judge in submissions to draw this inference: R. v. Schell, (2000) 2000 CanLII 16917 (ON CA), 148 C.C.C. (3d) 219 (Ont. C.A.). Appropriately, the Crown did not do so. However, the trial judge should have done so before drawing an adverse inference. His failure to do so rendered the trial unfair, giving rise to a miscarriage of justice.
C. SHOULD THE PROVISO BE APPLIED?
[23] The Crown did not ask for the curative proviso in s. 686(1)(b)(iii) of the Criminal Code to be invoked relating to the trial judge’s treatment of the tailoring issue, and the Crown did not respond to submissions made by Mr. Haidary in his factum and oral arguments as to why the curative proviso should not be applied. It would not be appropriate for us to invoke the curative proviso in these circumstances.
[24] In any event we would not have applied the curative proviso even if requested to do so since “the impermissible tailoring inference ‘appears to have played a large role in the trial judge’s rejection of the appellant’s version of what occurred’” and decisions of this court have discouraged the use of the proviso in such circumstances: R. v. C.T., 2022 ONCA 163, 78 C.R. (7th) 359, at para. 11, citing R. v. B.L., 2021 ONCA 373, at para. 50. Moreover, the trial unfairness we have identified give rise to a miscarriage of justice, and not simply an error of law, and is therefore not amendable to the operation of the curative proviso.
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