Today's Court of Appeal decision in R. v. M.F., 2009 ONCA 617 deals with the issue of ambiguous questions of marginal relevance. Such questions may lead to an unfair trial, especially if the answers are relied on by the judge, and so ought to be avoided.
In this case the question related to whether the accused thought his nieces (whom he was alleged to have assaulted) were pretty. The Court writes:
18] In relation to the charges relating to JC, the trial judge said:
Why have I come to this conclusion? On the R. v. W. (D.) analysis, I neither believe the accused, nor does his evidence raise reasonable doubt. The accused was evasive to questions in respect to watching pornography and whether JC was attractive. Therefore, I find that he is not being forthright with the court. He is not credible.
[19] There are at least two problems with the line of questions relating to whether the appellant found his nieces to be attractive. Because of these problems, the questions were unfair to the appellant and the trial judge should not have relied upon the appellant's difficulty in answering these questions in assessing his credibility.
[20] First, the questions are ambiguous. It is unclear from the questions whether the Crown was using the term "attractive" to mean 'pretty' or 'sexually attractive'. In the context of a trial involving allegations of sexual misconduct, such ambiguity is extremely unfair to an accused person.
[21] Because of their inherent ambiguity, from an accused person's perspective, there can be no right answer to such questions. An accused person who thinks his or her nieces are pretty could properly harbour concerns that an affirmative answer would be taken as an acknowledgment of sexual attraction and could lead to an inference that he or she was more likely to have committed the crime charged. Although such an inference would be improper in many if not most circumstances, an accused person would have no way of knowing whether it might be drawn because of the ambiguity of the question.
[22] Further, the same accused person could equally have concerns that a negative answer could be viewed as patently false. As the question could properly be taken as meaning pretty, a negative answer might be viewed as an obvious lie and as an attempt to avoid responsibility.
[23] By the same token, an accused person who does not think his or her nieces are pretty, could find it difficult, if not impossible, to publicly acknowledge that view. Finally, it would be apparent to many accused that any request for clarification of this type question could be viewed as evasiveness, as happened here.
[24] Second, whatever their meaning, the questions are essentially irrelevant. On one reading of the line of questions, they were directed at determining whether the appellant considered his nieces to be pretty. Such a line of questioning would appear to be premised on a stereotypical assumption that only pretty females are sexually assaulted. There is no empirical support for such an assumption and questions about whether the appellant considered his nieces pretty were therefore wholly irrelevant to the issues at the trial.
[25] On another reading of this line of questions, they were directed at determining if the appellant found his nieces sexually attractive. Except perhaps in circumstances where a particular crime involves sexually deviant behaviour, e.g. paedophilia, the fact that one person finds another sexually attractive, does not make it more likely that the first person sexually assaulted the second person. Even if such questions might be viewed as being marginally relevant, the risk of attributing undue weight to a positive answer should, in most circumstances, mandate their exclusion. In R. v. Moose (2004), 190 C.C.C. (3d) 521, at paras. 22-23, the Manitoba Court of Appeal said this about a similar line of questioning:
[T]he trial judge was in error in relying upon the accused's evasive answers to improper questions as the basis for rejecting his testimony. Assuming a positive answer, where does the question and answer lead? It does not follow that when a man finds a woman attractive, a sexual assault is likely to occur.
In my view, the questions and answers were indeed irrelevant for they do not tend to prove the issue before the court. Even if, on a broad interpretation of the inclusionary principle, it could be argued that the questions and answers constitute relevant evidence, it should be excluded because of its tenuous value and because it is unfairly prejudicial to the accused. See E. G. Ewaschuk, Criminal Pleadings & Practice in
[26] In this case, AMS was between five and ten years old at the time the alleged misconduct occurred. Had the questions to the appellant being directed at determining whether he found her sexually attractive at those ages when the misconduct allegedly occurred, they may have been relevant. However, framed as referring to whether the appellant found any of his nieces attractive at the time of trial, the questions were improper and the trial judge erred in relying on the appellant's answers to them as a basis for rejecting his evidence.
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