R. v. Osborne, 2017 ONCA 129

minicounsel

[Indexed as: R. v. Osborne]

Ontario Reports

Court of Appeal for Ontario

G.J. Epstein, Tulloch and van Rensburg JJ.A.

February 15, 2017

134 O.R. (3d) 561 | 2017 ONCA 129

Case Summary

Criminal law — Evidence — Witnesses — Video-recorded statements — Adoption

"Adopts" in section 715.2 of the Criminal Code having the same meaning as in section 715.1 and not requiring that an adult witness with disability must be able to confirm the truth of video-recorded statement based on present recollection. Sufficient for disabled witness to confirm that attempting to tell the truth at the time statement made.

Criminal law — Trial — Mistrial

Central issue at trial being whether accused had mens rea for first degree murder. Crown misrepresenting evidence in closing address when stating that defence had instructed forensic psychologist who assessed accused not to ask him about his intent. Trial judge not erring in dismissing accused's application for mistrial on ground that any prejudice arising from Crown's closing address could be and was in fact addressed through strong correcting instructions.

Facts

The accused was convicted of first degree murder. He did not deny killing the deceased, but claimed that he did not have the mens rea for murder and that he was therefore guilty of manslaughter. O, a friend of the accused and the deceased, was 24 years old but had the mental capacity of a seven-and-a-half-year-old. The day after the killing, O gave a video-recorded statement to the police to the effect that the accused had told him that he wanted to choke and kill the deceased. At the preliminary inquiry, O testified that he remembered making the statement and that he was endeavouring to tell the police the truth. At trial, the trial judge admitted O's video-recorded statement into evidence under section 715.2 of the Criminal Code despite the fact that O was unable to confirm the truth and accuracy of the contents of the statement from his present memory of the events referred to in the statement.

During his closing address to the jury, the Crown referred to the evidence of a forensic psychologist engaged by the defence and stated that the defence had instructed the expert not to question the accused about his intent at the time of the killing and that the defence was "hiding from the crucial issue". The accused applied for a mistrial. The trial judge found that the Crown had misstated the evidence but that any prejudice could be cured by a strong instruction. The trial judge instructed the jury that there was no evidence that the defence had instructed the expert not to speak to the accused about intent, that the Crown bore the burden on the issue of intent and that they were not to shift the burden of proof on the issue of intent onto the accused. He also instructed the jury that the Crown was entitled to have its own expert assess the accused on the issue of intent and had not done so. The accused appealed.

Held

The appeal should be dismissed.

The adoption test under section 715.2 of the Code is the same as that under section 715.1, and does not require the witness to be able to confirm the truth of his video-recorded statement based on a present memory of the events referred to in the statement. An adult witness with a disability adopts his or her video-recorded statement if he or she recalls giving the statement and testifies that he or she was, at the time of giving the statement, attempting to be truthful.

The Crown's misstatement of evidence in his closing address was problematic, but there was no reason to interfere with the exercise of the trial judge's discretion to refuse to grant a mistrial and to address the inaccuracies and the potential unfairness through corrective instructions. Any harm caused by the Crown's closing submission was ameliorated by the trial judge's strong correcting instruction to which defence counsel at trial did not object.

Authorities

Applied:

Considered:

Statutes Referred To

APPEAL

Appeal by the accused from the conviction entered on February 8, 2012 by F. Dawson J. of the Superior Court of Justice, sitting with a jury.

Clayton C. Ruby and Annamaria Enenajor, for appellant.

Grace Choi, for respondent.

The judgment of the court was delivered by

G.J. EPSTEIN J.A.

A. Overview

1After a trial by judge and jury, the appellant, Jason Osborne, was convicted of first degree murder in the death of Karina Neff. He was sentenced to life imprisonment without eligibility for parole for 25 years.

2The appellant appeals his conviction on two grounds. First, the appellant argues that the trial judge erred in admitting the video-recorded statement of a Crown witness under section 715.2 of the Criminal Code. Second, the appellant argues that the trial judge erred in dismissing his application for a mistrial after Crown counsel made certain remarks in his closing address about the evidence of the defence's expert forensic psychologist.

3For the reasons set out below, I would dismiss the appeal.

B. Background

(1) The Factual Background

4In 2008, 31-year-old Karina Neff was living with her parents. The appellant, with whom Ms. Neff had had a previous intimate relationship, was staying in a townhouse close to Ms. Neff's family home with three other young men, including Grayson Kekewich and Adrian Osmond. To varying degrees, Ms. Neff and all of the young men were developmentally delayed.

5On the evening of July 21, 2008, Mr. Kekewich was visiting Ms. Neff at her home. At around 10:00 p.m., Ms. Neff and Mr. Kekewich went for a walk. They took Ms. Neff's dog with them. At 11:00 p.m., Ms. Neff had not returned home and her parents became concerned. They went looking for her and eventually contacted the police. At about 1:00 a.m., the dog returned to Ms. Neff's home, alone and without its leash.

6The police focused their search on the people last known to be with Ms. Neff. Shortly before 2:30 a.m. on July 22, Mr. Osborne, Mr. Kekewich and Mr. Osmond were brought to the police station to be interviewed.

7Mr. Osmond's first video-recorded interview started at around 3:00 a.m. and lasted about half an hour. He told police that he and Mr. Osborne had gone for a walk that night and had met up with Ms. Neff and Mr. Kekewich near her townhouse. After a brief conversation, Ms. Neff walked toward her home by herself, and he (Mr. Osmond) walked home with Mr. Osborne and Mr. Kekewich. This version of events was supported by Mr. Osborne in his first interview with the police that started at about the same time.

8Later that morning, the police interviewed Mr. Osmond and Mr. Osborne again.

9Mr. Osmond's second video-recorded interview began around 11:00 a.m. and concluded at about 6:45 p.m. on July 22. Just after noon that day, while Mr. Osmond's interview was ongoing, Ms. Neff's body was discovered in a forested area of a park near her home. Upon being advised that the police had found Ms. Neff's body, Mr. Osmond said things to the police that he had not said in his first interview. He told the police that Mr. Osborne "had something fishy on his mind" and "wanted to do it". According to Mr. Osmond, Mr. Osborne told him that he wanted to hurt Ms. Neff and had said: "I wanna choke her. I wanna kill her. I wanna get rid of her". Mr. Osborne had tried to enlist Mr. Osmond's assistance in killing Ms. Neff, but Mr. Osmond had made it clear to Mr. Osborne that he did not want to get involved with Mr. Osborne's problems with her. In this statement, Mr. Osmond said that he went home with Mr. Kekewich and left Mr. Osborne alone with Ms. Neff. Later, Mr. Osborne returned home covered in sweat.

10During Mr. Osborne's second interview, the police observed pink discoloration on Mr. Osborne's shoes. Closer scrutiny disclosed small red spots on the shoes.

11It was during Mr. Osborne's second interview that police arrested him for Ms. Neff's murder. Mr. Osborne then confessed to having assaulted Ms. Neff but denied either intending or planning to kill her. He explained that after Mr. Kekewich and Mr. Osmond left, Ms. Neff started screaming at him. He became frustrated and angry, lost control and assaulted her.

12Mr. Osborne gave the following description of the assault:

Osborne: And after she grabbed my left wrist, she grabbed my right wrist, tried to pull me to hug her. I pushed her really hard on the ground. Just one hard push and she lost her balance. Then that's when uh, I said let's go, and, and I pull her closer into the woods.

Detective: Okay. And then what did you do?

Osborne: I kept on saying let's go up this way, let's go up this way.

Detective: And that was back long that pathway?

Osborne: Yeah.

Detective: Into the woods? And then what happened Jason?

Osborne: And I kept on saying to her a few things I need to get off my mind, a few things I need to get off my mind. That's all I was saying.

Detective: What did you want to get off your mind?

Osborne: I didn't get it out.

Osborne: I just--, after that I just went quiet.

Detective: Were you deeper in the woods by that time?

Osborne: Yes.

13Mr. Osborne told the police that once he got Ms. Neff deeper into the woods, he pushed her to the ground again. She got back up. He grabbed her chest and took her to the ground yet again. He held her chest and neck with his hands and "choked" Ms. Neff "a little". Mr. Osborne then stomped on her chin, neck and upper chest, and gripped her hair and swung her head forwards and backwards, hitting her head on a log.

14Mr. Osborne indicated that before he left Ms. Neff in the park, he located her cellphone, took the leash off the dog and picked her shoes up, which had come off during the assault. He discarded the leash and shoes in one garbage can and the cellphone in another. He then went home and took a shower.

15A forensic pathologist gave evidence about Ms. Neff's injuries. She sustained extensive injuries to her face, neck, chest and upper torso. She also suffered internal neck hemorrhages associated with a fracture-dislocation of the hyoid bone and cricoid cartilage. The pathologist identified the cause of Ms. Neff's death to be compression of her neck and the obstruction of her upper airway by smothering. He could not specifically say how much pressure was applied to Ms. Neff's neck but could not exclude manual strangulation or compression of the neck by a foot.

(2) The Trial

16Mr. Osborne admitted to causing Ms. Neff's death but took the position that he did not have the mens rea for murder and was therefore guilty of manslaughter. The main issue at trial, therefore, was whether the Crown could prove first degree murder.

17The Crown based its theory that Ms. Neff's death was planned and deliberate largely on the evidence given by Mr. Osmond in his second video-recorded statement to the police that Mr. Osborne told him that he had been thinking about choking Ms. Neff to get rid of her and that Mr. Osborne had tried to enlist his help to kill Ms. Neff. The Crown also argued that Mr. Osborne could be found guilty of first degree murder on the basis that the murder was committed while Ms. Neff was forcibly confined by Mr. Osborne. The evidence of forcible confinement came from Mr. Osborne's statement to police that he pulled Ms. Neff deeper into the woods before killing her.

18As will be discussed more fully below, another issue arose in the course of the trial. Counsel for Mr. Osborne applied for a mistrial based on remarks the Crown made in his closing submissions to the jury that went to the issue of intent. The defence took the position that what the Crown said to the jury misstated the evidence and was prejudicial to Mr. Osborne, and asked the trial judge to order a mistrial. The trial judge dismissed the mistrial application, reasoning that any prejudice caused by the Crown's submissions could be addressed through strong corrective instructions.

(3) The Crown's Application to Admit Mr. Osmond's Video-Recorded Statements

19On a pre-trial application, the Crown sought to have Mr. Osmond's second video-recorded statement admitted into evidence at trial under section 715.2 of the Criminal Code. The parties agreed that the preliminary hearing evidence should be considered as evidence on the pre-trial application.

20 Section 715 permits reception of a video-recorded statement describing the relevant events by a person in a prescribed class of witness. The section is divided into two subsections. Each deals with a different category of witness. Section 715.1 pertains to witnesses under the age of 18 at the time of the offence. Section 715.2 pertains to witnesses who have a disability that makes it difficult to communicate evidence. There are several conditions that must be met before the video recording may be admitted for the truth of its contents. The maker must fall within one of the two classes of witnesses, and the video recording must be made within a reasonable time after the alleged offence and describe the relevant acts. Significantly, for the purposes of this appeal, the witness must adopt the contents of the video recording while giving evidence in the proceedings in which it is tendered.

21Mr. Osmond's father, Donald Osmond, testified on the section 715.2 voir dire at the preliminary inquiry. Donald Osmond explained that his son was born with a genetic condition known as fragile X syndrome, which is associated with a spectrum of intellectual limitations. The cognitive impairments can range from mild to severe. Donald Osmond stated that his son's genetic condition impairs his ability to perceive and remember events and that his son has difficulty recounting events in a chronological order. However, he also testified that his son was "very capable of remembering things you say if they were very unusual . . . events".

22Mr. Osmond testified at the preliminary inquiry. He was 24 years old at the time but had been assessed as having the mental capacity of a seven-and-a-half year-old. At the hearing, Mr. Osmond's second video-recorded statement was played to him in segments, and after each segment, he testified that he remembered making the statements and that, in making those statements, he was endeavouring to tell the police the truth. However, Mr. Osmond only vaguely remembered what the police asked him, what he said to the police and what occurred on the day Ms. Neff died.

23Counsel for Mr. Osborne argued that Mr. Osmond's statements were inadmissible under section 715.2. Specifically, it was Mr. Osborne's position that section 715.2 is narrower in application than section 715.1 and that a witness seeking to admit his or her video-recorded statement under this section must be able to confirm its contents from present recollection. Given Mr. Osmond's evidence at the preliminary hearing, Mr. Osborne argued that Mr. Osmond was not in a position to confirm the truth and accuracy of the contents of the video-recorded statements from his present memory of the events referred to in the statement, making them inadmissible.

24The Crown argued that the test for adoption under section 715.2 is the same as in section 715.1 and does not include a requirement that the witness be able to confirm the truth of the video-recorded statement based on a present recollection.

25The trial judge rejected Mr. Osborne's argument that section 715.2 should be read to include a requirement that an adult witness with a disability must have a present ability to offer assurance that the video-recorded statement is a true reflection of the events witnessed: R. v. Osborne, [2011] O.J. No. 6279, 2011 ONSC 4289.

26In ruling in favour of admitting Mr. Osmond's statements into evidence, the trial judge relied on the Supreme Court's decision in R. v. F. (C.C.), [1997] 3 S.C.R. 1183, in which the court concluded that under section 715.1, a child witness adopts his or her video-recorded statement while testifying if the child recalls giving the statement and testifies that he or she was, at the time of giving the statement, attempting to be truthful. Significantly, in F. (C.C.), the Supreme Court held that the adoption test in section 715.1 does not require that the child verify the accuracy and contents of the statement based on a present memory of the events referred to in the video-recorded statement.

27In considering whether the test for adoption under section 715.2 should be interpreted differently than the test for adoption under section 715.1, the trial judge reasoned as follows:

Based on the similarity of the language used in ss. 715.1 and 715.2 it is apparent that Parliament chose to treat these two groups in the same way for the purpose of admitting video recorded statements. In doing so Parliament must have been aware of the test for adoption of video recorded statements previously established by the Supreme Court of Canada in C.C.F. In these circumstances I take the enactment of s. 715.2 in virtually the same terms as s. 715.1 as an indication by Parliament that adoption should have the same meaning in both sections. Parliament could have chosen to specify a different test for adoption in s. 715.2 but did not do so. I conclude the test for adoption is the same under each section.

28The trial judge held that by enacting section 715.2 in virtually the same terms as section 715.1, Parliament intended that the word "adopts" has the same meaning in both sections.

29Both of Mr. Osmond's statements to the police were admitted into evidence.

(4) The Application for a Mistrial

30In his closing statement to the jury, the Crown referred to the evidence of Dr. Sandor Wiseman, a forensic psychologist engaged by the defence, in a manner to which defence counsel strongly objected. The Crown made the following comments during closing submissions:

Dr. Wiseman in fact told you that it was not his opinion that Mr. Osborne was not able to form intention for first degree murder, nor should he have told you that, because as it turns out, he didn't assess Mr. Osborne to determine whether or not he could form intention or did form intention. Why is that?

The key issue for your determination, intention. And you were presented with a psychologist who was extremely limiting -- limited of what he could say to you about intention. He told you he could have assessed Mr. Osborne on the issue of intention, but such would have meant discussing the killing and what Mr. Osborne was thinking at the time.

Mr. Osborne was spoken to by a psychologist in a trial where the issue was intention and was never asked about what he was thinking at the time he committed this horrible crime. Those were his instructions.

Does it seem a little strange to you? It's clear that the defence entailed hiding from the crucial issue in asking you to simply accept Mr. Osborne's suggestion that he, over the course of three or four minutes in which he strangled Ms. Neff and the preceding moments where he viciously beat her, simply didn't form the intention.

You're being asked to reduce this common sense proposition that I've put to you to the results of an IQ test. Well, ladies and gentlemen that would in fact usurp your function and it sure did insult your intelligence.

31After the Crown's closing statement, counsel for Mr. Osborne applied for a mistrial on the basis that the Crown had misstated Dr. Wiseman's evidence to the effect that the defence had instructed Dr. Wiseman not to speak to Mr. Osborne about the issue of intent to murder Ms. Neff, and that the Crown had prejudiced the defence by suggesting that Mr. Osborne was trying to hide from the issue of intent. Mr. Osborne also argued that the Crown's closing remarks drew attention to his silence on the question of intent and failure to testify, in violation of section 4(6) of the Canada Evidence Act.

32The trial judge dismissed the application for a mistrial. He reasoned as follows:

I do not accept the defence submission that this violated s. 4(6) of the Canada Evidence Act. No mention was made by the Crown that the accused did not testify, there was not even a veiled reference to that.

I do conclude that there was a misstatement of the evidence, and there was rhetorical excess by the [Crown] in its weight. I doubt that [the Crown] understood the problem he was creating, but I am satisfied his remarks invited the jury to shift the onus or burden of proof to the accused on the critical issue of intent for murder. That must be forcefully corrected, in my view, R. v. Tuck, 2007 ONCA 556.

In my view, any prejudice can be cured by an instruction, but it must be a strong instruction. The instruction that the jury should find that their common sense was insulted is particularly unfair, given that the Crown had an opportunity to have Jason Osborne examined by their own expert on the [issue of intent] and chose not to do so, resting that decision on the contents of Dr. Wiseman's report.

So the record is clear, the Crown did have an assessment on the s. 16 issue, which has not been raised, but chose not to do an assessment on the issue of intent.

Crown counsel have advised me that they are not opposed to some reference being made in a corrective instruction to the availability of an opportunity for the Crown to have its own assessment. I intend to do that in a modest way by making reference to the law that would permit it.

Approached in this way, I conclude a pointed jury instruction is adequate to eliminate any prejudice. The application for mistrial is dismissed.

33Further to this ruling, the trial judge added the following corrective instruction to his charge to the jury:

Members of the jury, in his closing remarks to you, Mr. [Crown] said some things to you about Dr. Wiseman's evidence and about the defence which I must tell you should never have been said and which you must disregard completely.

First of all, [the Crown] told you that Dr. Wiseman was instructed not to speak to Jason Osborne about what he was thinking at the time he assaulted Ms. Neff. I must tell you that there is no evidence to that effect whatsoever. That is a seriously misleading statement of the evidence that should never have been made. Dr. Wiseman said that he was retained to determine whether Mr. Osborne suffered from a mental disorder and how it affected him. He said he did not ask about the offence because it was not necessary to do so in order to properly accomplish what he was asked to do. In other words, Dr. Wiseman testified he did not ask Mr. Osmond [sic] about that as it had no bearing on determining whether Jason Osborne was suffering from a mental disorder and, if so, what it was.

Dr. Wiseman said in passing that most defence counsel ask him not to discuss the offence with their clients. He did not say that he received any such instruction from defence counsel in this case. Even if such instructions had been given, and there is no evidence they were, that would be a completely irrelevant consideration. I have already told you that it is a fundamental principle of our criminal justice system that there is no onus or burden on an accused person to prove anything. The Crown bears the burden of proof on the issue of intent, as on any other issue that is an essential element of the offence. That burden never shifts.

Mr. [Crown] suggested to you that these instructions to Dr. Wiseman, which I have just told you there is no evidence of, entailed the defence "hiding from the crucial issue", and suggested that "should insult your intelligence". That could be taken as shifting the onus; it is capable of suggesting there is some onus on Jason Osborne to prove or show that he did not have the intent for murder. That is fundamentally wrong and you must not let anything Crown counsel said lead you to reason in that fashion. It is the Crown that must prove that Jason Osborne had the intent required for murder, not Jason Osborne who must show you or prove to you that he did not.

You will decide the question of whether Jason Osborne had the intent for murder on the basis of the evidence that you have before you, which includes Dr. Wiseman's evidence. While it is for you to assess Dr. Wiseman's evidence and determine the extent to which you are prepared to rely on it, you must not draw any negative inferences or diminish the value of his evidence because he might have done something which he was not asked to do and which he says was unnecessary to properly accomplish what he was asked to explore.

Perhaps most importantly, you must not consciously or unconsciously shift the burden of proof on the issue of intent onto Jason Osborne because Dr. Wiseman did not explore what was in Jason Osborne's mind at the time of the assault on Ms. Neff. To emphasize the unfairness of doing so I will tell you that in circumstances such as those in this case the Crown was legally entitled to have their own psychologist or psychiatrist conduct an assessment of Jason Osborne on the very issue of whether he actually formed the intent for murder. Although it is the Crown that bears the burden of proof, you have heard no evidence of such an assessment having been undertaken by the Crown. You must not draw an adverse inference against the Crown from failure to call evidence of such an assessment, and you certainly must not do so in respect of the accused, who bears no burden of proof on the issue of intent or any other issue.

C. Issues on Appeal

34The appellant advances the following arguments:

(1) The trial judge erred in concluding that the adoption test under section 715.2 does not require the witness to be able to confirm the truth of his video-recorded statement based on a present memory of the events referred to in the statement.

(2) The trial judge erred in dismissing the appellant's application for a mistrial following the Crown's closing address, and by ruling that any prejudice arising from the Crown's submissions could be addressed through correcting instructions.

D. Analysis

Issue 1 — Did the Trial Judge Err in Concluding That the Adoption Test Under Section 715.2 Does Not Require the Witness to Be Able to Confirm the Truth of His Video-Recorded Statement Based on a Present Memory of the Events Referred to in the Statement?

(1) Statutory Framework

35Section 715.2, like section 715.1, is a statutory exception to the hearsay rule, permitting an out-of-court statement to be admitted for the truth of its contents.

Evidence of victim or witness under 18

715.1(1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

Evidence of victim or witness who has a disability

715.2(1) In any proceeding against an accused in which a victim or other witness is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

36I make two important observations based simply on the wording of the two provisions.

37First, the only difference in wording between the two sections relates to who is covered by the provision. Section 715.1 requires that the witness be under the age of 18 at the time of the offence, whereas section 715.2 requires that the witness be "able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability".

38Second, the pre-conditions for admissibility in section 715.2 are identical to the pre-conditions for admissibility in section 715.1. The pre-conditions are that (i) the video-recorded statement must have been taken within a reasonable time after the alleged offence; (ii) in his or her statement, the witness must describe the acts complained of; (iii) the witness must, while testifying, adopt the contents of the video-recorded statement; and (iv) the presiding judge or justice is not of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.

(2) Arguments on Appeal

39The appellant argues that the trial judge erred in admitting Mr. Osmond's video-recorded statements under section 715.2 because he failed to apply the appropriate test for the adoption pre-condition under section 715.2. As he did before the trial judge, the appellant submits that section 715.2 requires that the witness be able to confirm the contents of the video-recorded statement from his or her present recollection. If, as in Mr. Osmond's case, the witness has no present recollection of the events referred to in the video-recorded statement, the statement is inadmissible.

40The appellant bases his argument on several points. First, he says the text of section 715.2 reflects a narrower aim and purpose than section 715.1. Section 715.1 is focused on a child's vulnerability and fading memory and, for that reason, applies to all children, including those with difficulty remembering evidence. On the other hand, section 715.2 is restricted to persons who are "able to communicate evidence". Moreover, this phrase is expressed in the present tense. The appellant submits that this means section 715.2 is meant to only apply to those who could otherwise testify to events based on their present recollection, but have difficulty communicating due to a mental or physical disability.

41Second, the appellant argues that the legislative history and context of section 715.2 demonstrates Parliament's intention to treat the category of witnesses referred to in section 715.2 differently than child witnesses under section 715.1. In particular, it was open to Parliament to simply incorporate persons with disabilities into section 715.1. Instead, Parliament chose to enact two separate provisions. The appellant points to section 486.2(1) of the Criminal Code, which provides accommodations to children and people with disabilities so that they can testify without seeing the accused. The appellant contends that this section supports his argument that when Parliament intends to treat child witnesses and witnesses who can communicate evidence but may have difficulty doing so by reason of a mental or physical disability identically, it does so by addressing both groups through the same provision.

42Finally, the appellant submits that the Parliamentary debates further support a conclusion that section 715.2 was enacted to assist witnesses who experience difficulty communicating, not difficulty remembering their evidence. Again, he focuses on the inclusion of the word "communicate" in section 715.2.

43The respondent's position is that the trial judge correctly found that the test for adoption in section 715.2 is identical to the test in section 715.1, and neither section requires a witness to have a present memory of the events described in the statement. Parliament's primary goal in enacting section 715.2 was to facilitate equal access to justice and full participation in the justice system by witnesses with mental or physical disabilities. Given this important remedial legislative intent, there is no reason to infer that Parliament intended to exclude an entire group of witnesses with disabilities from the salutary intent of section 715.2. Access to justice for witnesses with disabilities is facilitated through the animating goals of section 715.1 -- to record a witness' best recollection of evidence that assists in ascertaining the truth and to reduce the number of times a potentially vulnerable witness is required to repeat their evidence.

44The use of the phrase "able to communicate evidence" in section 715.2 refers simply to a witness' ability to communicate evidence in the very sense required for competence to testify. The phrase only excludes those who do not have the ability to communicate evidence in the basic sense involved in capacity to testify.

45The respondent argues that the reasoning for why the adoption test under section 715.1 does not require the witness to have a present memory of events, as set out in F. (C.C.), applies equally to section 715.2. Both sections contain built-in guarantees of trustworthiness and reliability that eliminate the need for a stringent adoption test, including the requirement that the statement be made within a reasonable time.

46Further, the fact that Parliament used two provisions to deal with the admissibility of video-recorded statements made by two different groups of people whose ability to testify may be compromised does not support the conclusion that the adoption test under each must be different, particularly when virtually identical language is used in each provision.

47Finally, the respondent contends that even if the trial judge did err in admitting the statements under section 715.2 of the Criminal Code, the video recordings would have been admissible under the traditional hearsay exception for past recollection recorded or under the principled approach to the hearsay rule.

(3) Applicable Principles

48The resolution of this issue turns on the interpretation of the word "adopts" in the context of section 715.2 of the Criminal Code.

49Statutory interpretation is governed by the approach described in Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87, and adopted by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), (1998), [1998] 1 S.C.R. 27, at para. 21:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

(4) Principles Applied

50As both parties have argued, the proper meaning of "adopts" in the context of section 715.2 can only be understood in conjunction with its related provision of section 715.1 and other provisions of the Criminal Code and the CEA, and by examining the legislative history of the provision. It is this analysis to which I now turn.

(a) The Purpose and Goals of Sections 715.1 and 715.2

51Section 715.2 came into effect on June 30, 1998 pursuant to Bill S-5, An Act to amend the Canada Evidence Act and the Criminal Code in respect of persons with disabilities, to amend the Canadian Human Rights Act in respect of persons with disabilities and other matters and to make consequential amendments to other Acts, 1st Sess., 36th Parl., 1997-1998 (assented to May 12, 1998), S.C. 1998, c. 9 ("Bill S-5"). The preamble of Bill S-5 included Parliament's recognition that,

Whereas accommodating the needs of persons with disabilities is particularly important to ensure that they can be full participants in and contributors to Canadian society;

And Whereas Parliament is committed to ensuring equal access to the criminal justice system for persons with disabilities.

52The intent of the provision was clearly stated by then Minister of Justice, the Honourable Anne McLellan, before the House of Commons Standing Committee on Justice and Human Rights, 36th Parl., 1st Sess. (March 12, 1998), at p. 1540:

As already provided in s. 715.1 for witnesses under the age of 18, the videotaped statement of a disabled person would be admissible in evidence only if this person, when testifying, adopts the contents of the videotape. This means the witness would not have to repeat once more all the facts relating to the offence, which in some cases may be difficult because of a disability affecting communication or some other type of disability. At the same time, the witness is available for cross-examination. Witnesses who might, in the past, have been practically unable to testify will be able to do so under this new provision.

53In the House of Commons, then Member of Parliament, Paul Forseth, repeated the intention set out in the legislative summary of Bill S-5: House of Commons Debates, 36th Parl., 1st Sess., No. 57 (February 11, 1998), at 3743. The relevant excerpt from the legislative summary and House of Commons debates reads:

The intention behind [section 715.1] is to preserve the evidence of children who might not otherwise recall events that took place months or even years before, and to remove the need for them to repeat their story many times both in an out of court. Clause 8 of the bill would allow similar videotaped evidence by persons with disabilities who might have difficulty communicating due to that disability.

54In my view, it is apparent that the intention of Parliament in introducing the language now contained in section 715.2 of the Criminal Code was to increase access to justice for people with disabilities who would, due to physical, cognitive or other types of disabilities affecting their ability to communicate in court, otherwise be prevented from participating in the proceedings.

55A consideration of this purpose in the light of the purpose of section 715.1 highlights the similarities, not the differences, in purpose between the sections. In R. v. L. (D.O.), [1993] 4 S.C.R. 419, L'Heureux-Dubé J. held that one of the primary purposes of section 715.1 is to remove or limit the barriers encountered by child victims and witnesses. She noted, at pp. 444-45 S.C.R.:

. . . I find that [s. 715.1] is designed to preserve an early account of the child's complaint in order to assist in the discovery of the truth and to provide a procedure for the introduction of the child's story into evidence at the trial. R.G. Mosley, senior general counsel for the Department of Justice, said when introducing s. 715.1 before the Standing Senate Committee on Legal and Constitutional Affairs that:

. . . the videotape . . . is simply a means of getting the child's earlier statement before the court in the belief that early statement will be an accurate and, hopefully, more complete account of what took place.

(Standing Senate Committee on Legal and Constitutional Affairs, Proceedings, Issue No. 2 (November 20, 1986), at p. 2:23)

56She continued, at p. 450 S.C.R.:

Section 715.1 of the Criminal Code acts to remove the pressure placed on a child victim of sexual assault when the attainment of "truth" depends entirely on her ability to control her fear, her shame and the horror of being face to face with the accused when she must describe her abuse in a compelling and coherent manner. Section 715.1 ensures that the child's story will be brought before the court regardless of whether the young victim is able to accomplish this unenviable task.

57In my view, both sections have, as an underpinning, the interests of getting at the truth and ensuring that vulnerable people who, for different reasons, are limited in their ability to communicate in court, are nevertheless provided with an opportunity to be heard: F. (C.C.), at para. 42; R. v. Untinen, [2015] B.C.J. No. 2998, 2015 BCSC 1796, at paras. 89-90; Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, eds., Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. (Markham, Ont.: LexisNexis Canada, 2014), at p. 428. While there are, no doubt, certain vulnerabilities that are unique to child witnesses and witnesses with disabilities, the overarching purpose of section 715.1 and section 715.2 is, for the most part, the same.

(b) The Meaning of "Adopts" in Section 715.2

58Although I conclude that sections 715.1 and 715.2 share the same overarching mandate, namely, increasing access to justice for vulnerable groups of people and obtaining the best evidence from vulnerable witnesses, I must still consider whether the word "adopts" in section 715.2 must be interpreted differently than in section 715.1, given that the provisions govern different groups of witnesses.

59The greatest guidance comes from the Supreme Court's consideration of the term in the context of section 715.1. In F. (C.C.), Cory J. was faced with the very argument raised in this appeal -- whether section 715.1 required that the witness have a present recollection of events for the statement to be admitted under section 715.1. In rejecting this court's holding in R. v. Toten, (1993), 14 O.R. (3d) 225 that a child needed to be able to verify the accuracy and contents of the statement based on present recollection, Cory J. made several observations that are relevant to assessing the same question in the context of section 715.2.

(i) Interpret "Adopts" in a Manner That Is Consistent With the Aim and Purpose of the Legislation

60First, at para. 35, Cory J. observed that the term "adopts" is capable of several meanings, but must be given an interpretation that is consistent with the aim and purpose of the legislation. As noted above, sections 715.1 and 715.2 share a common goal of facilitating the truth-seeking process in cases involving two groups of vulnerable witnesses -- children and people with disabilities -- whose age or disability impacts their ability to communicate evidence in court. As such, Cory J.'s analysis of the term "adopts" under section 715.1 informs the analysis of how "adopts" should be interpreted in section 715.2.

61The appellant places emphasis on the fact that, in enacting section 715.2, Parliament created a separate provision from section 715.1 and must, therefore, have intended the sections to be treated differently. In my view, this position places undue focus on form and fails to consider the substance and purpose behind the provisions. There is nothing on a plain reading of section 715.2 that suggests that Parliament intended the word "adopts" to be interpreted differently than in section 715.1. Indeed, as discussed above, both the legislative history and the purpose of the sections suggest Parliament intended for the provisions to work congruently over two different groups of witnesses.

62That legislative intent is further reflected in Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, 1st Sess., 38th Parl., 2005 (assented to July 20, 2005), S.C. 2005, c. 32 ("Bill C-2"). Clause 23 of Bill C-2 amended section 715.1 and section 715.2 to expand the circumstances under which a witness' video-recorded statement may be admitted as evidence by making the provisions available in any criminal proceedings, not only the enumerated list of predominantly sexual offences that existed prior to Bill C-2.

63In expanding the protection provided by each section to cover any criminal proceeding, Bill C-2 drew no distinction between section 715.1 and section 715.2: Canada, Parliament, Bill C-2: An Act to Amend the Criminal Code (Protection of Children and other Vulnerable Persons) and the Canada Evidence Act by Robin MacKay, Legislative Summary 480-E (revised June 16, 2005), at pp. 12-13; Nicholas Bala et al."Bill C-2: A New Law for Canada's Child Witnesses" (2005), 32 C.R. (6th) 48. This further supports the conclusion that section 715.1 and section 715.2 are meant to function in the same way.

64For similar reasons, I do not accept the appellant's argument that by including the words "able to communicate evidence" in section 715.2, Parliament intended that the section only apply to witnesses with a present recollection of the events described in the statement. The requirement in section 715.2 that the witness be able to "communicate evidence", in my view, refers to the simple and relatively low threshold of having the capacity to testify under sections 6 and 16 of the CEA. The limitation created by the language "able to communicate" in section 715.2 functions to exclude witnesses who do not have the testimonial competence, which the Supreme Court in R. v. Marquard, [1993] 4 S.C.R. 223, at p. 237 S.C.R., defined as "the basic ability to perceive, remember and communicate".

65Moreover, it is also worth noting that at the same time as adding section 715.2 to the Criminal Code, Bill S-5 also amended section 6 of the CEA to provide that witnesses with physical or mental disabilities who have difficulty communicating would be permitted to give evidence "by any means that enables the evidence to be intelligible". This contemplates witnesses whose difficulty is making themselves understood by others, and allows their testimony to be given with assistive devices and other techniques. If Parliament's only intention was to facilitate testimony for those who have difficulty articulating speech as a result of a mental or physical disability, but who have a present recollection of the events, section 715.2 would not have been necessary, as section 6 of the CEA addresses these concerns.

66The Supreme Court has cautioned against importing different tests between related provisions where it is apparent that Parliament had no such intention. In R. v. I. (D.A.), [2012] 1 S.C.R. 149, 2012 SCC 5, the Supreme Court found that section 16 of the CEA, which governs the testimonial competence of adult witnesses whose mental capacity is challenged, does not require anything other than the testimonial competence of children. In refuting the argument that adults with mental disabilities should be subjected to additional questioning about the nature of the obligation to tell the truth, McLachlin C.J.C., for the majority, stated, at para. 52:

The final and most compelling answer to the equivalency argument is simply this: When it comes to testimonial competence, precisely what, one may ask, is the difference between an adult with the mental capacity of a six-year-old, and a six-year-old with the mental capacity of a six-year-old? Parliament, by applying essentially the same test to both under s. 16(3) and s. 16.1(3) and (6) of the Canada Evidence Act, implicitly finds no difference. In my view, judges should not import one.

67In my view, these words are apt in interpreting the adoption requirement in section 715.2 in the light of how the Supreme Court has interpreted the term "adopts" in the context of section 715.1. Interpreting the adoption requirement in the same way in both sections not only contributes to the truth-seeking process but also ensures that persons with disabilities are full participants in and contributors to Canadian society.

(ii) The Deleterious Effects of Imposing a "Present Recollection" Requirement for Admissibility

68The second important observation that emerges from F. (C.C.) and which bears on the appropriate meaning to be ascribed to "adopts" in section 715.2 is found in Cory J.'s analysis of the deleterious effect of imposing, as a requirement for admissibility under section 715.1, that a child have a present recollection, as suggested in Toten. To this effect, Cory J. stated, at para. 41:

The test set out in Toten would prevent a child who has little, or no memory of the events from "adopting" the video and it would therefore be inadmissible under s. 715.1. However, it is precisely in this situation that the video is most needed. Children, particularly younger ones, are prone to forget details of an event with the passage of time. A videotape made shortly after the event is more likely to be accurate than the child's viva voce testimony, given months later, at trial. It is quite possible that a young child will have a recollection of going to the police station and making the statement and of her attempt to be truthful at the time yet have no memory of the unpleasant events. This is particularly true where the elapsed time between [the initial complaint] and the date of trial is lengthy. If effect is to be given to the aims of s. 715.1 of enhancing the truth seeking role of the courts by preserving an early account of the incident and of preventing further injury to vulnerable children as a result of their involvement in the criminal process, then the videotape should generally be admitted.

69Requiring a witness with a disability to testify to a present recollection of the events in question as a pre-condition to the admissibility of the video-recorded statement under section 715.2 would have a similarly deleterious effect. A requirement of present recollection would exclude all people whose disability caused them to lose or have a significantly diminished memory of the events in question. For example, a person who has suffered a serious brain injury that has caused him to lose all memory of a past event may nevertheless have provided a clear narrative of events within a reasonable time after the alleged offence. The appellant's interpretation of section 715.2 would put such a witness outside the scope of section 715.2.

70Clearly, the purpose of rendering greater access to justice and the truth-seeking function of section 715.2 is not met by excluding all persons whose mental disability has impacted their memory, such that they have difficulty communicating their evidence in court.

71Furthermore, Cory J. expressly rejected, at para. 42, the notion that section 715.1 be restricted to a child witness who has a recollection of events but is unable to articulate them, concluding that this approach was too narrow to meet the truth-seeking goal of section 715.1. He stated:

[This approach] fails to take into account the broader purposes of the legislation. Trial judges do not expect children to be perfectly articulate. They know that the examination-in-chief of a child will not precisely match the ideal narrative form of an adult's testimony. Indeed, the trial judge has the discretion to permit counsel to use leading questions on examination-in-chief in order to get the child's evidence before the trier of fact. Children are vulnerable victims and for a number of reasons their testimonial capacities may range from a complete inability to articulate recalled events to an ability to recount some but not all of the events. In any of these circumstances, the admission of a videotaped statement would assist a court in arriving at the truth. It would be inappropriate to construe the section as one which only addresses the "inarticulate complainant".

72Very similar considerations are in play when it comes to witnesses who have disabilities that affect their ability to give evidence in court. A disability can affect a person's ability to communicate evidence in court in different ways, depending on the nature of the disability. It could be that the witness has difficulty articulating evidence due to a physical or mental disability, but it could also be that a witness is no longer able to recall the evidence due to their disability and is therefore unable to communicate it to the court.

(iii) Lack of Present Recollection and Reliability

73Finally, Cory J. recognized the concern about the inability to cross-examine a child witness who has no independent recollection of the events, but also noted, at para. 44, important conditions in section 715.1 that provide the requisite level of reliability and trustworthiness of the video-recorded statements for their admission into evidence, including (a) the requirement that the statement be made within a reasonable time; (b) the trier of fact can watch the entire interview, which provides an opportunity to observe the witness' demeanor, and assess the personality and intelligence of the witness; and (c) the requirement that the witness attest that he or she was attempting to be truthful at the time that the statement was made. Further, Cory J. noted that the witness can be cross-examined on whether he or she was actually being truthful when the statement was made. Finally, he noted that where the witness has no independent memory of the events there is an obvious necessity for the video-recorded evidence.

74These factors are equally applicable in the context of section 715.2. These conditions provide statements made by people with disabilities who are unable to communicate their evidence at trial with the requisite reliability to compensate for the lost opportunity to cross-examine on the forgotten event.

(5) Conclusion

75In the light of the wording of section 715.2 in the context of the Criminal Code and Parliament's intention, the inescapable conclusion, in my view, is that "adopts" in section 715.2 has the same meaning as "adopts" in section 715.1.

76It follows that I would not give effect to this ground of appeal.

Issue 2 — Did the Trial Judge Err in Dismissing the Appellant's Application for a Mistrial Following the Crown's Closing Address, and by Ruling That Any Prejudice Arising From the Crown's Submissions Could Be Addressed Through Correcting Instructions?

(1) Arguments on Appeal

77As he did at trial, Mr. Osborne argued on appeal that the Crown's closing submissions improperly commented on his right not to testify under section 4(6) of the CEA and prejudiced his right to a fair trial. Second, as the trial judge noted, the Crown's remarks that the defence was hiding from the crucial issue of intent invited the jury to shift the onus to Mr. Osborne on this issue. Third, the Crown knew that the defence was not hiding from the question of intent, as the defence gave the Crown an opportunity to have a Crown expert examine Mr. Osborne on this very question and the Crown chose not to do so. Fourth, the Crown misstated the evidence with respect to the instructions defence counsel gave to Dr. Wiseman, as there was no evidence about Dr. Wiseman being instructed not to ask Mr. Osborne about what he was thinking when he assaulted Ms. Neff.

78Based on what Mr. Osborne refers to as "the Crown's significantly prejudicial closing address to the jury", he argues that the trial judge erred in not granting a mistrial.

79In the alternative, says Mr. Osborne, if this court concludes that a mistrial was not required, the trial judge's jury instructions did not cure the prejudice to him caused by the Crown's submissions. The instructions provided no assistance on the violation of section 4(6) of the CEA. Moreover, the instructions strongly suggested to the jury that the defence counsel knew Mr. Osborne was trying to hide his guilt. Significantly, the instructions did not address the impermissible inference of guilt or cure the Crown's attack on defence counsel's integrity.

80The Crown submits that the trial judge did not err in the exercise of his discretion not to grant a mistrial. This case fits among the vast majority of cases in which corrective instructions will ensure fairness. The trial judge's forceful corrective instruction negated the Crown's comments.

(2) Applicable Principles

81The declaration of a mistrial is a remedy of last resort, reserved for the clearest of cases, where no remedy short of a mistrial will adequately redress the actual harm occasioned. A mistrial should only be ordered where it "is necessary to prevent a miscarriage of justice": R. v. G. (A.), (2015), 124 O.R. (3d) 758, 2015 ONCA 159, at para. 50; R. v. Chiasson, [2009] O.J. No. 4682, 2009 ONCA 789, at para. 14; R. v. Burke, [2002] 2 S.C.R. 857, 2002 SCC 55, at para. 77.

82In R. v. Rose, (1998), [1998] 3 S.C.R. 262, at para. 126, the majority made it clear that a trial judge is in the best position to assess the impact of counsel's remarks to the jury and to correct any unfairness or inaccuracies with appropriate jury instructions. The decision of whether to grant a mistrial is a matter of discretion of a trial judge. It follows that an appellate court should only interfere where such a response is clearly wrong or based on an erroneous principle: Chiasson, at para. 14; R. v. G. (A.), at para. 51.

(3) Principles Applied

83I agree with the trial judge's assessment of the Crown's closing -- the rhetorical excess was prejudicial and the misstated evidence was problematic. However, I see no reason to interfere with the exercise of the trial judge's discretion in refusing to grant a mistrial and instead to address the inaccuracies and potential unfairness the trial Crown created through corrective instructions.

84I note that the impugned comments were an isolated part of the trial Crown's jury address. I further note that the Crown did not expressly comment on Mr. Osborne's not having testified. Anything said to this effect was implicit. And, it was, in my view, negated by the trial judge's repeated emphasis in his instructions that there was no onus on Mr. Osborne to testify that he did not have the intent for murder and that the Crown bore the burden to prove intent. Moreover, in the post-charge discussion, trial counsel did not object to the trial judge's corrective instructions regarding the Crown's jury address.

85Finally, as can be seen from the corrective instructions set out above, the jury was advised in no uncertain terms that there was no evidence that the defence instructed Dr. Wiseman not to speak to Mr. Osborne about what he was thinking when he was assaulted; that the Crown bears the burden of proof on the issue of intent; that the accused person does not bear the burden to prove that he did not have the intent for murder; and that there is no evidence that the defence hid from the issue of intent. In my view, any harm caused by the Crown's closing submissions was ameliorated by the trial judge's strong correcting instruction to the jury.

86The jury is presumed to have understood and followed these instructions: R. v. Corbett, [1988] 1 S.C.R. 670, at p. 695 S.C.R.; R. v. Pannu, (2015), 127 O.R. (3d) 545, 2015 ONCA 677, at paras. 61 and 98.

87I would therefore not give effect to this ground of appeal.

E. Disposition

88On the basis of this analysis, I would dismiss the appeal.

Appeal dismissed.

Notes

1 Although the Crown only planned to tender the second video-recorded statement Mr. Osmond made to the police on July 22, 2008, the trial judge held that fairness dictated that the Crown was required to tender the first statement if the Crown tendered the second.

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