WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
Winkler C.J.O., Laskin and Goudge JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
D. E.
Appellant
Ian N. McLean, for the appellant
Dena Bonnet, for the respondent
Heard: December 8, 2010
On appeal from the conviction entered on February 4, 2008, by Justice Michael H. Tulloch of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
1This is an appeal from a conviction for sexual assault after a trial before a judge and jury. On the basis of certain comments in the Crown’s closing to the jury, the appellant moved unsuccessfully for a mistrial. Following the trial judge’s charge to the jury, the appellant renewed his concerns and sought to have the jury recalled and cautioned about those Crown comments that the trial judge had not addressed in the charge. After discussion with counsel, the trial judge decided not to do so.
2The appellant appeals from his conviction arguing that the Crown’s comments resulted in an unfair trial.
3We disagree. Our reasons follow.
Background
4The complainant first disclosed conduct by the appellant, her uncle, to her mother as a result of her mother asking whether anything inappropriate had ever happened between the two of them. After that initial disclosure, the complainant gave a video-taped statement to the police. This statement, which was given when she was almost ten years old, related to incidents that had occurred when she was in grade one, up to four years earlier. The video was played before the jury, adopted by the complainant as the truth, and admitted as evidence in the trial on consent pursuant to section 715.1 of the Criminal Code. The complainant also testified at trial. This was essentially the evidence led by the Crown.
5The defence called the complainant’s mother, C.M., who testified that in September of 2005 she had a conversation with the complainant about whether anything inappropriate had ever happened between the complainant and the appellant. Her evidence was that the complainant had said that the appellant “had touched her in a way that made her feel uncomfortable, touched her around her arms, the inside of her thighs”. C.M. asked the complainant if the appellant had touched her in the “crotch” or “crotch area” and the complainant told her that he had not. However, in the complainant’s video statement to the police and subsequent testimony she had stated that she had been touched in various ways, including on or near her vagina.
6Under cross-examination by the Crown, C.M. stated that when she had this conversation with her daughter she began to cry. She agreed that it was “pretty emotional” and that the complainant began to cry as well, which made “it worse.” She agreed that it was an emotional day, one that was difficult to recall. She agreed that she did not ask for details but only asked specific questions. She agreed that once her daughter answered the questions, she decided to leave it to the police to interview her. She also agreed that her daughter used hand gestures (as she did in the video statement) to indicate that the appellant had touched her thighs. She also agreed that the complainant had told her that the appellant had put his hands down her pants. The complainant’s mother explained that since that day she did not ask the complainant to elaborate on what had happened because she “didn’t want to jeopardize anything. I didn’t want to be – to put anything in her head.”
Issues Raised on Appeal
7The issues raised on appeal all relate to the Crown’s closing remarks to the jury. The appellant complains that the Crown invited the jury to remember what “it was like to be six or seven years old again” when they considered the lack of detail in the complainant’s recollection of events. In our view, this amounted to little more than asking the jury to apply their common sense in assessing that evidence. We cannot accede to this ground of appeal.
8Of somewhat greater concern, later in her closing the Crown asked the jury to consider, when assessing inconsistencies in the evidence, “how you would react to a traumatic event like this”. Although this comment was made in passing and no particular emphasis was placed on it, it invited the jury to put themselves in the position of a victim of a crime, rather than to remain independent triers of fact. This was not an appropriate comment. Nonetheless, in the context of the entire trial, including the opening instructions and the charge to the jury read as a whole, we do not think it could have reasonably affected the verdict. Although the trial judge was concerned about this language, he chose not to add a specific caution regarding it. We are not prepared to interfere with his discretion in declining to do so. Indeed, a specific caution may well have drawn more attention to the issue than it merited.
9The appellant further argues that the Crown commented inappropriately about the demeanour of the complainant in her closing by indicating that the manner in which the complainant gave her video statement to the police suggested that she was embarrassed. In our view, this is something the jury was quite capable of evaluating for themselves. In the trial judge’s opening instructions and charge to the jury he emphasized that what counsel said was not evidence, and that the jury should rely only on their own observations and recollection of the evidence to determine the facts of the case. In our view that was sufficient.
10The appellant also contends that the Crown made inappropriate comments with respect to the complainant’s mother, C.M. In her closing address to the jury, Crown counsel said:
Let’s talk about [C.M.], and as you in your own experiences have noticed, people can sometimes remember things slightly differently. Now you heard from [C.M.]. She was called by the defence, and it was apparent by her testimony that this was clearly emotional for her, and she testified in a fashion that suggested perhaps that she felt a certain amount of guilt over what happened to her daughter. This is a mother who failed to protect her daughter, and of course I say that not to be critical of her, but when you’re considering her evidence, consider her not wanting to face the full truth of the situation, and the full truth of what happened, and it happened directly under her nose, through no fault of hers. And that must be the most difficult thing for a parent to imagine, for a parent to have to deal with and live through.
11The thrust of this argument is that the Crown offered up facts not in evidence as explanations for inconsistencies in the evidence. The appellant relied on the decision of the Supreme Court of Canada in R. v. Rose, 1998 SCC 768, [1998] 3 S.C.R. 262, in which the majority stated at para. 107:
In presenting closing submissions to the jury, Crown counsel must be accurate and dispassionate. Counsel should not advert to any unproven facts and cannot put before the jury as facts to be considered for conviction assertions in relation to which there is no evidence or which come from counsel's personal observations or experiences.
12It is trite law that Crown counsel ought not to make submissions to the jury without having first established a proper evidentiary foundation. While there was no direct evidence that the complainant’s mother felt guilty or somehow responsible for what had happened, in our view the Crown was merely suggesting an inference that the jury could properly draw from the evidence together with the manner in which it was given. That said, the choice of language left something to be desired. These comments, when taken in isolation, came near to that which will not be countenanced by a court. However, in the context of the totality of the evidence and the fullness of the trial judge’s instructions and charge, we are not persuaded that the jury would have been unduly influenced by these comments in rendering its verdict.
13Shortly thereafter, in her closing Crown counsel continued:
And you’ll recall that I asked [C.M.] if [the complainant] showed her that she had been touched on the vaginal area. She pointed to that area, and she indicated only the thigh. So it was her testimony that her daughter told her that [the appellant] had touched her on the arms and thigh. And I ask you to ask yourselves, why then would she call the police if that was all her daughter had told her, that he had touched her on the arms and the thigh. Of course, if it’s as [the complainant] recalls it, that she told her mother he touched me on the vagina and on the breasts or chest, there would be good reason to call the police, and we know that the police were contacted.
14Finally, the appellant submits that the Crown crossed the line in asking rhetorically why the complainant’s mother went to the police if the complainant had not complained to her in the words the complainant said she used, rather than the manner in which her mother recalled. The Crown ought not to have engaged in this rhetoric. However, in our view, the trial judge acted within his discretion in deciding that this did not warrant remedial action. Significantly, when the evidence of the complainant and her mother is considered in its entirety, especially the evidence of C.M. on cross-examination, their evidence does not differ in any material respect, something the jury would have been aware of.
15In his charge, the trial judge went to great lengths to impart fairness by reviewing C.M.’s testimony in detail and reiterating the concerns of the defence when outlining the defence’s position. He was careful not to repeat any of the egregious remarks from the Crown’s closing remarks to the jury.
16When requested to recall the jury, the trial judge exercised his discretion and decided not to address the appellant’s concerns further. We are not persuaded to interfere with that decision. In our view, his charge was balanced and fair. While certain of the Crown’s closing remarks were best left unsaid, taken either separately or together, they did not render the trial unfair.
17The appeal is dismissed.
“Winkler CJO”
“John Laskin J.A.”
“S. T. Goudge J.A.”