COURT OF APPEAL FOR ONTARIO
FINLAYSON, AUSTIN, AND SHARPE JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Michelle Fuerst and Karen Unger for the appellant
(Respondent)
- and -
R.C.
Jennifer Woollcombe for the respondent
(Appellant)
HEARD: October 25, 2001
On appeal from conviction on November 19, 1997 and the sentence imposed on December 18, 1997 by Justice Hector Soublière, sitting with a jury.
BY THE COURT:
1R.C. appeals his conviction on November 19, 1997 on charges of assault, assault causing bodily harm, sexual assault, forcible confinement, mischief, breach of probation (2) and breach of undertaking (2). He also applies for leave to appeal his sentence aggregating six years.
2We are agreed that although there were a number of errors in the conduct of the trial, including the charge to the jury, those errors, neither individually nor collectively, are sufficient to require the setting aside of the convictions. Nor are we of the view that the sentences are unfit.
3On November 3, 1996, the appellant and his girlfriend O. T. (“T.”) were ejected from a dance bar in Ottawa after consuming alcohol and getting into an argument. Outside the appellant screamed at T., punched her several times, she fell to the ground and he kicked her in the chest.
4On November 6, 1996, he was charged with assault causing bodily harm and failure to comply with a probation order prohibiting him from the purchase, possession or consumption of alcohol. He was released upon his undertaking not to communicate with T. and to abstain from alcohol.
5In August 1997, the appellant pleaded guilty to breaching that undertaking by leaving threatening messages on T.’s answering machine. He was sentenced to fourteen days in jail, having already served thirty days in pre-trial custody.
6He was released on September 11, 1997. He went to T.’s apartment bearing gifts and very drunk. He demanded sex from her and when she refused he forced her into her bedroom, threw her on the bed, pulled off her jeans and her underwear, put his fingers in her vagina and then forced his penis inside her. He did this several times over the course of a couple of hours.
7The appellant remained with T. and the following day he again threatened her, removed her clothes and forced her to have sex. He also attempted to have anal intercourse but was unsuccessful. After ejaculating the appellant forced her to put his penis in her mouth. After this he performed oral sex upon her.
8When he went to the bathroom she attempted to leave the apartment by the bedroom window but he returned to the bedroom and prevented her escape. Eventually the appellant left the apartment and T. telephoned the police. She was seen by a nurse and by a doctor in the Sexual Assault Treatment Centre of Riverside Hospital in Ottawa that same day.
9R.C. was tried by a judge and jury commencing November 10, 1997. He pleaded not guilty to all nine counts, but after the conclusion of the evidence pleaded guilty to the four counts involving breaches of probation and breaches of undertakings. The Crown relied upon the evidence of T., the nurse, the doctor and the police. The case turned upon the credibility of T. The appellant did not testify but did present other evidence. He was convicted on all counts.
10On the conviction appeal the appellant raised issues respecting alleged errors in the charge to the jury, the admission of the doctor’s opinion, the admission of a prior consistent statement, the admission of evidence of the appellant’s character and the denial of a motion for a mistrial.
11The charge to the jury in this case was not given, as it is in most cases, after all the evidence had been received and counsel had summed up to the jury. Rather the judge's charge was given in parts, commencing at the beginning of the trial and continuing through to the end. As well, unlike most trials, the charge was given not only orally, but the oral presentation was followed up with a verbatim rendition in print which the jury would receive soon after the oral delivery. This practice was followed by the same trial judge in R. v. Ménard (1996), 1996 685 (ON CA), 108 C.C.C. (3d) 424 (Ont. C.A.) (Arbour, Labrosse and Weiler JJ.A.); (1998), 1998 790 (SCC), 125 C.C.C. (3d) 416 (S.C.C.). Those courts commented on the format of the charge, both praising the idea and criticizing the performance. Both pointed out some of the dangers involved, in particular, the risk of giving erroneous instructions early on in the proceeding and the risk of guessing incorrectly as to what is likely to occur as the trial proceeds. In the result both courts dismissed the appeal.
12In passing, we note the advice provided by Cory J. speaking for the majority in R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.) at page 12:
In some jurisdictions, after the jury as been selected, the trial judge will provide some brief basic instructions as to the nature of a criminal trial and the fundamental principles that will be applied. This is such a sound, sensible and salutary practice that it should be undertaken in all jurisdictions. Obviously it will be of great assistance to jurors if, at the beginning of the trial, they are advised of the applicable basic principles. If that procedure is followed, it would be helpful to advise the jury at this time, as well as at the conclusion of the trial, of the presumption of innocence and the burden of proof beyond a reasonable doubt which the Crown must meet.
13Appellant’s counsel criticized the practice of giving instructions in instalments, relying on Ménard. In particular, the trial judge did make errors in his first instructions dealing with the meaning of reasonable doubt. Notwithstanding that this instruction was given on November 10, 1997, it failed to observe some of the language disapproved by the Supreme Court of Canada in Lifchus, which was released September 18, 1997.
14Specifically, the trial judge said that when he spoke of reasonable doubt he used the term in “its ordinary sense”. He said “there is no mystic or magical formula; there is no specific legal sense to that”. He went on to say that it was simply a question of “feeling sure” of the guilt of the accused. “Do you feel sure of the guilt of accused?”
15Some words and phrases were disapproved by Cory J. in Lifchus. The word “ordinary” and the phrase “ordinary meaning” were disapproved of in the context of reasonable doubt and the words “sure” and “certain” were warned against unless and until a jury has already been instructed as to the meaning of reasonable doubt.
16In addition, the oral instructions on that first day of trial contained an obvious error in that in setting out the elements of sexual assault the trial judge said that “for you to find the accused guilty of sexual assault you must find that the accused has proven beyond a reasonable doubt the following: . . .”. (Emphasis added).
17This obvious error was not picked up or commented upon by either counsel and appeared in the typed transcript which was provided to the jury on Wednesday, November 12, the second day of the trial. As to the definition of “beyond a reasonable doubt”, the phrases “feeling sure” and “feel sure”, which had not been prohibited by Lifchus, remained. The trial judge acknowledged that his instruction on the first day had been wrong. He said:
The next thing I want to tell you is that in respect of my opening remarks to you, I instructed you on the burden of proof and presumption of innocence, and since – and that is a form that I have used for many years, and yesterday again I was here working, and it came to my attention that the Supreme Court, while I was absent from the country, had handed down a decision which changed to some extent the instructions that I should be giving to a jury in matters of reasonable doubt and burden of proof.
So what I have done, and I took the liberty to do and I vetted this with both counsel, is in the copy that you will receive I have already made the changes to the instructions so as to conform I think to the requirements of the Supreme Court of Canada’s recent decision. So, if there are -- you probably won’t recall in any event word for word what I told you about that --- I’m sure you won’t --- but anything that you do recall about what I told you verbally, you should set it aside and rather take the definition and instructions as you now have them in writing as being the correct one.
18The transcript the jury was handed on the second day of trial made no reference to “ordinary sense”. It read as follows:
19Although this jury was warned of this correction on the second day of the trial and given the transcript, it was not read to them at that time. Instead, at the end of the trial, a week later, the trial judge at the outset of his instructions said:
Members of the Jury, you have in your possession a transcript of my opening remarks and of my instructions which I gave to you during the course of the trial on certain types of evidence. I do not believe it necessary to repeat those comments. You have them and have had the opportunity to read them at will. I instruct you, however, to start off your deliberations by reading them again so that they will be fresh in your mind, particularly as to the following:
Your responsibility as sole judges of the facts;
the need for you to be impartial;
the burden of proof on the Crown and the presumption of innocence;
and the approach of weighing testimony of witnesses.
Because I am not repeating to you all of the instructions I have given you in writing during the course of this trial, nonetheless they form an essential part of my charge, and consequently again I ask you to do as I have instructed you, start off by reading them.
However, there is one change to my instructions on Reasonable Doubt, and that change is that you must be sure of the guilt of the accused as opposed to feeling sure. So that my instructions on that point as corrected now read as follows, and I propose to read them to you.
In a criminal case, the accused is presumed to be innocent until the crown has proven his guilt to you beyond a reasonable doubt. The Crown must prove the guilt of the accused as I have said beyond a reasonable doubt, not on a mere balance of probabilities.
Therefore, if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
What is meant by proof beyond a reasonable doubt? It is very seldom in the conduct of human affairs, or in judging what is in a person’s mind, that we can achieve absolute certainty. That is why the Crown is only required to prove guilt beyond a reasonable doubt. It is based on reason and common sense, and is logically derived from the evidence, not sympathy or prejudice.
Proof beyond a reasonable doubt has been achieved when you as a juror are sure of the guilt of the accused. It is a real doubt, an honest doubt, and not one resulting from a stretch of your imagination, as for instance might be used by an irresponsible juror who wishes to avoid his duty. It is simply a question of being sure of the guilt of the accused.
And it is a doubt which arises after a consideration of all of the evidence. You must not make a compartmentalized and isolated analysis of each strand of the evidence. You must not break up the evidence into separate pieces, but you must look at the total body of the evidence. Look at its total and cumulative effect and ask yourselves, are you sure of the guilt of the accused? You test the rope, not the strand; you test the wall, not the brick.
He then went on to deal with the nine counts on a count by count basis.
20In our view, this was sufficient to correct any error that might have been made in the trial judge’s instructions given on the first day of the trial. It has not been suggested that there is any reason to believe that the members of the jury did not follow those instructions and read or re-read the charge respecting proof beyond a reasonable doubt. Accordingly, there is no merit in the submissions of the appellant that the jury was never properly completely instructed in a comprehensible manner on proof beyond a reasonable doubt.
21The appellant also argued that the trial judge erred in his final instructions in dealing with the victim’s motivation in that, by implication, an onus was cast upon the appellant to explain why the complainant would fabricate her account.
22Motivation is, of course, not part of the Crown’s case, but the trial judge instructed the jury on the subject because it was raised by the appellant’s counsel in his closing address to the jury when he said:
You also have to look at what is the motivation of the witnesses to testify. Why are they here? What is in it for them?
Now, why should O. lie about that?
23The part of the charge complained of is as follows:
The matter of motivation for T. is of crucial importance in this matter and you will have to deal with that aspect of the problem, although you do not have to resolve it. Why would she make those complaints, whether they are true or not, obviously, and if they are not true, why would she make them? In answering that question, you are entitled to look at all of the evidence of the witnesses, not only the statements made but the conduct of the complainant at the time. You may seek evidence of consistencies or inconsistencies with her testimony here in court in the manner I described to you in my earlier written instructions, in order to assist you in arriving at whether or not she is telling the truth. Both counsel have dealt extensively with this.
The instruction referred to at the end of this passage occurred on the first day of trial and consists of the usual instructions given with respect to witnesses in general.
24In our view, nothing in any of the foregoing gives rise to any suggestion of an onus being cast upon the appellant nor does it invite the jury to conclude that unless the appellant explained why the complainant would complain as she did, that she should be believed.
25The appellant also complained that the trial judge failed to instruct the jury not to discuss the case until all the evidence was in, the addresses made and the instructions given. In fact, it was argued that the jurors were positively encouraged to discuss this case from the outset but it is not suggested that the appellant was disadvantaged by this course of conduct.
26The trial judge did not in fact give any specific instruction with respect to the time for discussion. In his opening remarks on the first day he outlined the trial process, concluding with the statement that:
After I have completed my charge, then that part of your task which is the most difficult begins, for you must then consider your deliberations and render your verdict.
27Several pages later, after telling the jury the hours during which the court would sit, he said:
You may if you wish elect a president immediately who will preside over your deliberations.
Still later he said:
I will also during the course of the trial give you certain instructions or rulings that I make depending on the evidential problems that are raised. I will make available to you transcripts of those rulings. Again you will have these ruling in your possession. You will be able to read them, consider them and discuss them amongst yourselves. If you have any problems understanding either part of my opening remarks or my rulings, please let me know during the course of the trial. I will attempt to deal with it.
The appellant argues that these passages encourage discussion of the evidence throughout the trial.
28Still later the trial judge said:
During the course of the trial or particularly during your deliberations, do not give more weight to any written notes that you may have as opposed to the collective view of all of the other members of the jury, because anyone of us can be mistaken as to the notes we take.
Having said that, if at the conclusion of trial when you start your deliberations there is a real difference of opinion as to what a witness has said, there are ways of dealing with that. I say that bearing in mind that one or all of you may have taken notes.
29These passages suggest a distinction between “the course of the trial” and “your deliberations”. While it would have been preferable for the trial judge to give a specific instruction not to discuss the case until the deliberation stage, we do not accept the submission that the jury was invited to conduct mid-trial deliberations. It was made clear to the jury at the end of the case that they were to consider all the evidence as a whole and to decide the case on that basis. We see no prejudice to the appellant arising from these instructions read as a whole.
30The appellant also argued that he had been prejudiced by the reception into evidence of two pieces of inadmissible evidence. Each was followed by a ruling instructing the jury to disregard the evidence in question. It was further argued that that prejudice was aggravated first by the delay in making the ruling and then by the jury being provided with transcripts summarizing the inadmissible evidence, thus providing additional emphasis and prejudice. The trial judge told the jury that the evidence in question was inadmissible and must be disregarded. The fact that the jury got it in print was a consequence of the trial judge’s practice of providing transcripts of his instructions. In order to instruct the jury properly, the trial judge was required to identify the evidence to which objection was taken. We agree with the trial judge that in the circumstances, an instruction to the jury would be sufficient, provided it was given as promptly as possible, as was the case here.
31In her factum, counsel for the appellant submits that the trial judge erred in not fairly putting to the jury the position of the defence. This is frequently the complaint when the defendant does not testify, as in this case. In fairness, it should be pointed out that the case turned on the complainant’s credibility. The defence strategy involved attacking that credibility by cross-examining her and calling witnesses who contradicted her evidence and gave evidence as to her demeanour following the offences in September 1997. On review, the trial judge accurately and fairly put the defence position to the jury.
32The appellant argues that because Dr. Jacqueline Marie Parker was not properly qualified as an expert the trial judge erred in admitting her opinion to the effect that the complainant’s injuries were consistent with forcible intercourse.
33Dr. Parker obtained her medical degree in England in 1981 and was licensed to practice general medicine in Ontario in 1984. In September 1997, she was working in the Sexual Assault Treatment Centre of Riverside Hospital in Ottawa. She examined the complainant gynecologically approximately thirty-six hours after the alleged sexual assault.
34She reported that the clitoris was swollen, there was some swelling of the introitus and some abrasions of the posterior fourchette. Internally, there were two contused red areas on the cervix. It was Dr. Parker’s view that for the significant amount of swelling to be still present thirty-six hours after the event a fair degree of force had been used at the time. She agreed that the injuries would be consistent with forcible intercourse. She stated that the two contused areas on the cervix were consistent with a penetration injury, that injury to the cervix is very uncommon because the cervix is to two to four inches inside the vagina. Finger nails could cause the abrasions she saw on the cervix. It would be unlikely for a woman to inflict such an injury upon herself because of the position she would have to get herself into. This latter opinion was produced on cross-examination.
35Although no voir dire was held to review Dr. Parker’s qualifications, her experience in the Sexual Assault Treatment Centre would almost certainly qualify her to give the evidence she gave.
36In the alternative, the appellant argues that the trial judge erred in failing to caution the jury with respect to the impermissible use of the expert evidence in relation to the complainant’s credibility. No such caution was given but on the other hand Dr. Parker was not classified as an expert in the trial judge’s instructions. The only reference to her was in setting out the appellant’s position. The trial judge said “finally he (the appellant) questions the impartiality of Dr. Parker, as well as the validity of her conclusion”.
37As the respondent’s counsel noted in her factum “the significance of Dr. Parker’s evidence lay not with her opinions but with her observations of the injured genitalia. With this admissible evidence alone, the jury had very strong confirmatory evidence of a sexual assault.” We see no error in the treatment of the evidence of Dr. Parker.
38Anne Wilson, the complainant’s counsellor, testified that in the spring of 1997, the complainant told her that the appellant had assaulted her although that precise word was not used. The appellant objected to this evidence upon the ground that it was a prior consistent statement. The statement, however, was part of the narrative required to demonstrate the significance of a statement against interest by the appellant, who attended the counselling session, to the effect that “it wouldn’t happen again”. No objection was made to this evidence at the time it was received.
39Appellant’s counsel objected to the admission of bad character evidence respecting her client. In examination-in-chief, the complainant was asked whether she know anything of the appellant’s “background” and whether this had any effect or impact on her relationship with him. She responded that although she did know about his “background”, she “did not judge him”. She testified that from the beginning, she had always hoped that he would change, and he had done so for “very brief periods”’ but could not follow through on anything. In addition, evidence was introduced at trial that at the time of his arrest in November, 1996, the appellant was on probation in relation to charges of trafficking a narcotic, failure to comply with a probation order and possession of a narcotic. Evidence also was introduced that on August 5, 1997, the appellant was arrested on a breach of undertaking charge as a result of leaving threatening messages on Ms. T.’s answering machine, specifically that he was going to “kick down her door”. Ms. T. advised the court that the appellant pleaded guilty to this charge.
40Looking at these complaints in context we see no significant error in the admission of this evidence. Four of the charges were for breach of probation and breach of undertaking. The probation order and the undertaking order were in the hands of the jury. The probation order indicated that the appellant had been in prison for three months, that he was on probation for another three years, that he was to abstain from the possession or consumption of alcohol or drugs, that he was required to attend for treatment assessment and counselling as might be prescribed by his probation officer and that he was not to associate with persons in the drug trade. The undertaking told them that he was not to communicate or associate with the complainant. The jury knew as well that he was pleading guilty to the charges of breach of probation and breach of undertaking.
41It was against that background that the complainant testified as to her relationship with the appellant. The evidence now complained of was necessary to explain her state of mind at the time the events complained of took place. It is significant that no objection was raised during the trial.
42The appellant’s position is that the trial judge erred in refusing to declare a mistrial because of a combination of matters, the reception of inadmissible evidence from Constable Sweet and Dr. Hauser and improper remarks by Crown counsel in her address to the jury. Constable Sweet testified that in September, 1997, while working with the identification unit, the appellant read the charges against himself, as listed on the booking sheet. While reading the sheet, the appellant said “how can you sexually assault you own woman?”. Constable Sweet testified that the appellant seemed to be in disbelief that he could be charged with this type of an offence and that in his (Constable Sweet’s) opinion, this comment was said more as a statement, in the rhetorical sense, rather than the appellant looking for an answer. Constable Sweet further testified that he was personally “disgusted with that type of tone as well as obviously when he said ‘your own woman’, placing ownership”.
43On this same day, Dr. Hauser testified that on November 10, 1996, Ms. T. attended his office complaining of pain to her face. She advised him that she “had been hit by her boyfriend twelve times, since separated, and was concerned about retribution if she lays charges because her boyfriend was a member of some gang”. Defence counsel immediately objected to this evidence, specifically the evidence that the appellant was a “member of some gang”.
44The mistrial application was denied. The trial judge stated:
As to the Sweet’s matter, I have no problems about that at all. The first part is admissible as to the intonation of the voice . . . but the second part is clearly inadmissible. It is a statement of his opinion, and it is a statement not only of his opinion, it is statement of his values . . . It doesn’t go to the guilt or the innocence of the accused. It goes to the values of this officer vis-à-vis that type of comment, and I don’t think there is much prejudice from that really, providing that they are given some instructions that they are not to take it into account. Quite frankly, I would think that a jury will have no problems in disregarding that comment as being expressive of a statement of values on the part of the officer and as well being inadmissible as being an opinion of the officer on that. So, certainly on that basis of Sweet’s evidence, I will give them instructions, and I think that will more than be adequate to satisfy the requirements”.
The trial judge then instructed the jury that due to the fact that Constable Sweet put his own values on that statement, which he was not entitled to do, they were to entirely disregard that comment. He stated to the jury that: “it was unfortunate and ought not to have been made”. In denying the application as to the evidence of Dr. Hauser, the trial judge stated:
I think that the statement as it comes forth from the doctor is clearly inadmissible as being hearsay evidence, and whilst it is prejudicial, I think that under these circumstances because it is so clearly hearsay, and in view of the fact that the witness, the complainant wasn’t even questioned about that, I think that the prejudice will be removed by proper instruction to the jury.
The trial judge then instructed the jury that the statement “she told me she had been hit by her boyfriend twelve times and since separated” was admissible because the complainant was questioned and testified to it, and that her statement was consistent with that of Dr. Hauser. He further instructed them that the second part, i.e. that “she was concerned about retribution if she lays charges because her boyfriend was a member of some gang”, was hearsay evidence and was therefore inadmissible. He instructed the jury to only disregard the second part of Dr. Hauser’s evidence.
45Following Crown counsel’s submission that, in her opinion, the entire statement was inadmissible, the trial judge further recharged the jury, instructing them that the entire answer of Dr. Hauser was inadmissible because it was hearsay and not to give it any weight.
46At the conclusion of the Crown’s address to the jury, defence counsel objected that portions of the address were inflammatory, specifically the last fifteen minutes of the forty minute address. Defence counsel once again applied for a mistrial, relying specifically on the following portions of the Crown’s address:
(i) It [the hole in the wall] is absolutely confirmatory of his [the appellant’s] aggression, and I would suggest to you that if anyone of you had been the focus of that degree of aggression, you would have been terrified;
(ii) He [defence counsel] has suggested very strongly to you that her [the complainant’s] failure to do [to escape] that casts doubt on her whole story . . . It may be that she could have asked for help and it may be that somebody would have helped her, but put yourself in her position. If you thought that if you tried to leave or if you tried to ask for help, that you would be hurt again, and you had been hurt enough, would you try to leave? If you were thinking that the accused would catch you and kill you and not even remember having done it because he was so drunk, would you try to leave? [emphasis added];
(iii) We have to put ourselves in O.’s shoes. We have to ask ourselves whether given the same circumstances, the same history, whether we would have acted totally rationally; and
(iv) Is it not possible that we might not have seen the avenues of escape that offered themselves, because we were too exhausted, too obsessed with our pain or our humiliation.
47A trial judge has the discretion to declare a mistrial after inadmissible evidence or an inflammatory address is put to the jury. The trial judge here stated that he agreed with the position of defence counsel, but felt that the situation could be remedied by an appropriate instruction. He then gave very clear instructions to ignore the inadmissible evidence of Dr. Hauser and Constable Sweet. He gave these instructions close in time to when the jury heard this evidence and did not wait until the end of the trial. Although the trial judge found the remarks by Crown counsel to be improper, he described the “transgression” as “not a major one”.
48In dealing with the remarks of Crown counsel the trial judge instructed the jury as follows:
The test is not what you would have done in her place; or would you not have been terrified in her shoes. Counsel for the Crown, in dealing with this aspect of the evidence, put it to you on several occasions, “What would you have done in her place or her shoes”? This was improper and should not have been put to you in this manner. I repeat, that is not the test. That is not the question you must ask yourselves. Rather, it is: “Does testimony of that witness, T., make sense, is it consistent with itself and other facts as you find them, is it credible, and finally do you believe her?” This may not have been at all what you would have felt or done.
49In our view, the trial judge’s instructions were sufficient to overcome any prejudice to the appellant.
50In summary, we would not give effect to any of the grounds advanced and would dismiss the appeal against conviction.
51As to sentence, the appellant was sentenced to a total of six years imprisonment: one and a half years for assault causing bodily harm, four and a half years consecutive for sexual assault, thirty days concurrent on all but one of the counts of breach of probation, breach of undertaking, mischief and forcible confinement and two years concurrent on the remaining count of breach of undertaking. He was also prohibited from the possession of weapons pursuant to s. 100 of the Criminal Code for a minimum of ten years.
52The position of the appellant at trial was that, after giving credit for ninety days pre-trial time served, a sentence of one year on the assault causing bodily harm and a global sentence of two years for the other offences would have been appropriate, for a total sentence of three years. The Crown sought a sentence of eight to ten years imprisonment.
53It is argued that the ultimate sentence of six years was excessive having regard to all the circumstances. The appellant had a substantial record beginning in 1985 but his longest previous sentence was two years in the reformatory. There was no indication that his pre-trial time had been taken into account.
54In our view, the sentence was entirely appropriate. The offences were committed in breach of probation and undertakings commencing upon the very day of the appellant’s release from prison. They involved serious breaches of trust in the context of an intimate relationship and were both violent and degrading.
55Leave to appeal the sentence is granted, but the appeal from sentence is dismissed.
Released: November 21, 2001
“G. D. Finlayson J.A.”
“Austin J.A.”
“Robert J. Sharpe J.A.”