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| John L. Hill |
But the CBC and CTV challenged the ban, arguing at a provincial Supreme Court hearing in March 2022 that it infringed press freedom and the open court principle, which requires public access to legal proceedings. Justice James Adams overturned the ban, writing in his March 23 decision that Regular’s concerns “amounted to no more than personal and professional embarrassment and possible loss of business.” To grant the ban, Adams wrote, would “constitute a sea change in the criminal law.” It would also allow almost anyone charged with a criminal offence to seek the same protection, he added (R.R. v. Newfoundland and Labrador, 2022 NLSC 44). The Supreme Court of Canada refused to intervene.
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Regular was tried in the Supreme Court of Newfoundland and Labrador, General Division, and acquitted (R. v. Regular, 2024 NLSC 100). The Crown appealed. The Newfoundland and Labrador Court of Appeal delivered its decision on Jan. 26 (R. v. Regular, 2026 NLCA 1).
The reasons address five issues raised on appeal, with the Crown arguing: 1) the trial judge erred in admitting evidence of JT’s other sexual activity with another person, SO; 2) the trial judge erred in permitting Regular to cross-examine JT and then tender evidence of the details of JT’s shoplifting offence to contradict her responses; 3) the trial judge erred in refusing to permit JT to testify about the details of her last encounter with Regular and in permitting the Crown to cross-examine Regular about this encounter; 4) the trial judge erred in permitting Regular to give his evidence without swearing an oath or by solemn affirmation; and 5) the test under R. v. Graveline, 2006 SCC 16 to set aside the acquittals and order a new trial has been met.
On the first issue, the Appeal Court held that the trial judge applied the wrong legal principles in determining whether the evidence was relevant to an issue at trial. The evidence was collateral to the issues at trial and did no more than permit a wide-ranging attack on JT’s general character. The evidence invoked, or came dangerously close to invoking, one of the twin myths that because of her other sexual activity, JT was less worthy of belief. Further, by allowing JT to be cross-examined about the veracity of her assertion that she had a sexual relationship with SO, the trial judge subjected JT to a trial within a trial without the matter being properly before the court for adjudication. There was no complaint by JT, no charge laid against SO, and no presentation of a case by the Crown, including no direct examination of JT on the allegations. Allowing such an adjudication was an affront to privacy and dignity, and improperly coloured the trial judge’s assessment of her credibility.
The second issue also pointed out an error in the judge’s decision to allow evidence of JT’s shoplifting offence. This was inadmissible collateral evidence. Regular was permitted to contradict JT’s account of the shoplifting by calling evidence, including the filing of an official report regarding the weather on the date the shoplifting occurred. The evidence of more information, such as the weather on that date, did no more than permit Regular to attempt to contradict JT on matters that were not before the court.
The third issue also showed that the trial judge further erred by refusing to permit JT to testify to the relevant details of her last encounter with Regular. The Crown attempted to have JT recount her previous encounter with Regular, but the trial judge objected. It may be permissible for complainants to recount how they came to make a complaint as part of the overall narrative of the circumstances, especially if the circumstances of the allegations come to light after a long period of time, as was the case here. Such evidence is not admissible for its truth, but the fact and timing of the declaration may be admitted and may include details of the allegations. An event may prompt a complainant to come forward. The fact and timing of how a complainant came to make a complaint can provide logical cohesion to the complainant’s narrative.
Further, the trial judge erred in allowing Regular to testify without swearing an oath or affirming his testimony. Regular’s status as a lawyer and a member of this province’s law society did not relieve him of the obligation to either swear an oath or proceed by way of solemn affirmation before testifying at his trial.
Had the Graveline test been met? In an appeal from an acquittal, it is not enough to show that the trial judge made legal errors. The errors must be such that, if they had not occurred, one could reasonably expect the verdict to have been different. In this case, the Appeal Court held that there was no doubt that the inadmissible evidence influenced the trial judge’s assessment of JT. The public interest in a properly conducted trial in accordance with the law, and the need to protect the integrity of the justice system, militate in favour of a new trial (R. v. Morrison, 2019 SCC 15).
Accordingly, a new trial was ordered. It is expected that Robert Regular’s name will continue to be published in newspapers during that trial.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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