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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

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.

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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19

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.

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. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide:

539(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand trial, the trial is ended.

(2) Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1).

(3) Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction

(4) [Repealed, 2005, c. 32, s. 18(2).]

R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacKenzie, 2020 ONCA 646
DATE: 20201019
DOCKET: C67166

Doherty, van Rensburg and Trotter JJ.A.

BETWEEN

Her Majesty the Queen
Respondent

and

Ryan MacKenzie
Appellant

Chris Sewrattan and Ashley Sewrattan, for the appellant
Lorna Bolton, for the respondent

Heard: October 1, 2020 by video conference

On appeal from a conviction entered on May 3, 2019 by Justice James R.H. Turnbull of the Superior Court of Justice, sitting with a jury.

Doherty J.A.:

I

1The appellant was convicted by a jury of sexual assault. He appeals conviction only.

2The appellant advances two grounds of appeal. First, he submits his right to a fair trial was fatally compromised by several improper submissions made by Crown counsel in his closing address and by the trial judge’s failure to give the necessary correcting instructions. Second, the appellant submits the trial judge’s response to a question posed by the jury during its deliberations was wrong in law. He argues the trial judge’s response improperly narrowed the basis upon which the jury could be left with a reasonable doubt by excluding the possibility of a doubt based on the absence of evidence.

3For the reasons that follow, I would reject both submissions and dismiss the appeal.

II

4The complainant, R.W., and K.M. were good friends. Around midnight on June 16, 2017, K.M. invited R.W. over to her residence to party with K.M. and her new boyfriend, C.L. R.W. decided to go over to her friend’s house. She had been drinking before she left home. The drinking continued after she arrived at K.M.’s.

5In the early morning hours, K.M. spoke with the appellant and invited him to come over to pick up some of his belongings. K.M. and the appellant had previously dated. Apparently, the break-up had been difficult. R.W. knew the appellant through her friendship with K.M.

6The drinking and partying continued after the appellant arrived. K.M. became very intoxicated and, according to her, eventually “blacked out”. R.W. described herself as “heavily intoxicated”.

7C.L., who was not feeling well, did not drink as much as the others. He decided to go upstairs to bed around 5:30 a.m. After C.L. went upstairs, K.M. and the appellant began to “make out”. They had been flirting earlier in the evening. K.M. was very drunk.

8According to R.W., when she saw K.M. and the appellant “making out”, she went upstairs to get C.L. He came downstairs and took K.M. up to the bedroom with him, leaving R.W. and the appellant downstairs.

9Neither R.W., nor the appellant, had shown any sexual interest in the other that night or at any other time. R.W. turned on a movie. She and the appellant watched the movie and had one or two drinks. R.W. fell asleep on a loveseat. The appellant was sitting on a couch in the same room.

10R.W. awoke sometime later, to find herself on her knees, facing the back of the loveseat. Her upper body was positioned on the loveseat. Her pants were down, exposing her buttocks.

11R.W. was initially confused. It took her some time to realize the appellant was behind her, trying to force his penis into her vagina. R.W. repeatedly said no and started to cry. Over the next several minutes, the appellant continued to attempt to force his penis into R.W. She cried out for help.

12C.L., who was sleeping upstairs with K.M., heard the scream. He went downstairs to find R.W. on her knees facing the loveseat with the appellant kneeling behind her. R.W.’s pants were down and she was crying. The appellant was making thrusting motions, consistent with an effort to have sexual intercourse with R.W. When the appellant saw C.L., he moved away from R.W. and put his penis back into his pants. C.L. demanded to know what was happening and told the appellant to leave. When the appellant refused, C.L. called the police.

13The appellant was arrested and taken to the police station. He told the police he recalled falling asleep on the couch. When he awoke, K.M. was on the floor next to the couch crying. R.W. was also on the floor crying. The appellant said he had no recollection of what happened, but repeatedly denied ever having any sexual contact with R.W. The appellant told the police R.W. was not sufficiently attractive for him to have had any sexual interest in her. He suggested R.W. may have “touched him” while he was sleeping.

14At trial, the appellant testified and told a very different story. He admitted he had repeatedly lied to the police in his statement.

15In his testimony, the appellant indicated after C.L. took K.M. upstairs, he and R.W. had another drink and put on a movie. He passed out on the couch. The appellant woke up to find R.W. lying on the couch beside him, facing away from him. She was pressing her buttocks into his crotch. R.W.’s pants were “a little bit down”. The appellant said her name, but R.W. did not respond. The appellant, without saying anything more, pulled R.W.’s pants and underwear down and unbuttoned his pants, exposing his penis. He then made thrusting motions toward R.W., attempting to insert his penis into her vagina. He did not know if he succeeded. According to the appellant, R.W. made noises, which the appellant interpreted as an indication she was enjoying his efforts to have sex with her.

16The appellant testified R.W. continued to grind her buttocks into his penis for some 10 or 15 minutes. After one particularly strong thrust by the appellant, R.W. rolled off the couch onto the floor. The appellant asked her if she wanted to stop and she said yes. He immediately pulled up his pants and sat on the couch. C.L. arrived in the living room from upstairs and asked what was going on. R.W. started to cry. C.L. told the appellant to leave and he refused. He told C.L. he had consensual sex with R.W. A short time later, the police arrived and arrested the appellant.

17At trial, with the agreement of counsel, the trial judge put two “defences” to the jury. He instructed the jury it must acquit the appellant unless the Crown proved beyond a reasonable doubt R.W. had not consented to the sexual activity. The trial judge also instructed the jury it must acquit unless the Crown proved beyond a reasonable doubt the appellant was not under the mistaken belief R.W. had consented to the sexual activity. On appeal, counsel for both the appellant and the Crown agree the “defence” of honest mistaken belief in consent was legally unavailable. The evidence gave no air of reality to a claim the appellant had taken reasonable steps in the circumstances known to him to determine whether R.W. was consenting to the sexual activity: Criminal Code, s. 273.2(b).

the grounds of appeal

A. the crown’s closing argument

18Counsel in closing argument to a jury cannot make submissions that are unavailable as a matter of law, or on the evidence. Nor can counsel misstate the evidence or the law. On occasion, counsel, usually unintentionally, fall into one or more of those errors. When they do, the trial judge may be required to provide a timely and focused correction. If counsel’s allegedly improper submissions become a ground of appeal, it falls to this court to decide whether those submissions, considered beside any correction provided by the trial judge, and in the context of the entire trial, resulted in a miscarriage of justice: see R. v. Boudreau, 2012 ONCA 830, at paras. 14-20; R. v. L.(L.) (2009), 2009 ONCA 413, 96 O.R. (3d) 412, at paras. 50-54.

19Before turning to the appellant’s specific submissions, it is also important to acknowledge the limits specifically imposed on Crown counsel in closing argument. While Crown counsel should firmly and fairly advance the case for the Crown, Crown counsel must do so in a measured manner, avoiding comments or behaviour that could be taken as inflammatory or an invitation to the jury to decide the case based on emotion or the personal opinion of Crown counsel: R. v. Daley, 1992 O.J. No. 1504; R. v. L.(L.), at paras. 55-57.

20The trial judge was satisfied some of Crown counsel’s comments and his demeanour during parts of his closing address went beyond the kind of advocacy expected of the Crown. He told the jury so, in no uncertain terms. The trial judge firmly admonished the jury to approach the evidence “dispassionately and without emotion”, bearing in mind counsel’s personal opinions were irrelevant. This instruction ensured the improprieties in Crown counsel’s closing, identified by the trial judge, would not negatively impact on the fairness of the trial. The appellant does not suggest the trial judge did not adequately deal with this facet of Crown counsel’s closing.

21The appellant contends, however, apart from the concerns identified by the trial judge, Crown counsel made four improper submissions which should have been addressed and specifically remedied by the trial judge. The appellant submits Crown counsel improperly:

• told the jury it could acquit only if satisfied R.W., K.M., and C.L. were lying, or alternatively invited the jury to decide the case by choosing between the competing versions of events;

• invited the jury to find R.W. had no motive to fabricate and to use the appellant’s failure to prove R.W. had a motive to fabricate to confirm her credibility;

• gave evidence about the effects of alcohol consumption on human behaviour; and

• invited the jury to use the appellant’s presence at trial when R.W. testified to make an adverse finding with respect to the appellant’s credibility.

(i) Did the Crown improperly invite the jury to reach a verdict after an either/or determination of the credibility of the competing versions of events?

22A jury cannot determine guilt simply by deciding which of two competing versions of the relevant events it believes. An accused must be acquitted if the jury has a reasonable doubt on any of the essential elements of the offence, even if the jury does not believe the accused’s version of events: R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397; R. v. O.M., 2014 ONCA 503, at para. 42.

23The appellant accepts the trial judge correctly instructed the jury on how it should approach the appellant’s evidence in the context of applying the burden of proof. The trial judge followed the well known, three-step approach in W.(D.):

If you believe Ryan MacKenzie’s evidence that he did not commit the offence charged, you must find him not guilty. If, after a careful consideration of all the evidence, you are unable to decide who to believe, you must find Ryan MacKenzie not guilty, because Crown counsel would have failed to prove Ryan MacKenzie’s guilt beyond a reasonable doubt. And even if you don’t believe Ryan MacKenzie’s evidence, if it leaves you with a reasonable doubt about his guilt, or about an essential element of the offence charged, you must find him not guilty of sexual assault, and even if Ryan MacKenzie’s evidence does not leave you with a reasonable doubt of his guilt or about an essential element of the offence charged, you may only convict him if the rest of the evidence that you do accept, proves his guilt of the offence beyond a reasonable doubt. I will repeat that to you again tomorrow, just before you go to the jury room.

24As he had promised, the trial judge repeated this instruction near the end of his instructions.

25The appellant argues Crown counsel’s submissions invited the jury to take a different approach than the one described by the trial judge. The appellant contends fairness required the trial judge to specifically identify and correct the improper submission made by the Crown.

26I reject this submission for two reasons. First, the trial judge told the jury, on more than one occasion, to take instructions on legal matters, like the burden of proof, from him only. If Crown counsel’s submission could be understood as advocating a different approach to the burden of proof, I see no reason to conclude the jury would disregard the trial judge’s instructions and follow the Crown’s suggested approach.

27Second, and more importantly, Crown counsel did not invite the jury to decide the case by choosing between the evidence of the appellant and the conflicting evidence of the Crown witnesses. To the contrary, Crown counsel specifically told the jury it must acquit the appellant, even if it did not believe him, unless the Crown proved his guilt beyond a reasonable doubt. In his closing, Crown counsel used the same language from R. v. W.(D.), as did the trial judge, in explaining the application of the burden of proof to the appellant’s evidence.

28It is true Crown counsel forcefully urged the jury to disbelieve the appellant’s evidence. Crown counsel offered a variety of reasons for rejecting his evidence. In the impugned passage, Crown counsel argued the appellant’s evidence should be rejected because it conflicted with the evidence of other witnesses, particularly R.W. and C.L., who the Crown urged the jury to find were credible.

29I see nothing wrong with the argument advanced by the Crown. The credibility of any individual witness, including the accused, must, of necessity, be assessed having regard to all of the relevant evidence and the jury’s evaluation of the credibility of evidence given by other witnesses: R. v. O.M., at para. 45.

30Crown counsel did not invite the jury to reach its verdict by choosing between competing versions of events. Instead, counsel urged the jury to disbelieve the appellant’s evidence, for several reasons, including what the Crown argued was the presence of cogent conflicting evidence from other credible witnesses. On the Crown’s argument, the appellant could be believed only if the others were disbelieved. For example, Crown counsel said:

You cannot believe Ryan [the appellant]. You cannot. Cause if you believe him, then as a matter of logic you have to be forced to believe that K.M., C.L. and R.W. were all lying to you, with this perfectly crafted story, some conspiracy to make Ryan pay for no real reason, common to all three of them. Yes, Ryan, everyone’s out to get you.

31Although disbelief of the appellant, on its own, could not justify a conviction, and the Crown never suggested it could, the jury could not possibly convict the appellant if they did not disbelieve him. Not surprisingly, Crown counsel strenuously argued the jury should disbelieve the appellant for a variety of reasons, including the presence of conflicting evidence from other credible witnesses. In making this argument, Crown counsel neither suggested disbelief of the appellant equated with guilt, nor invited the jury to decide the case by choosing between competing versions of events.

(ii) Did Crown counsel invite the jury to find R.W. had no motive to fabricate, and did he invite the jury to find the appellant’s failure to prove R.W. had a motive to fabricate was confirmatory of her credibility?

32In his closing address, Crown counsel referred to the defence contention, R.W. was not merely mistaken or unreliable, but was deliberately lying about the relevant events. The Crown submitted to the jury, absent any evidence of a motive to lie, the jury should reject the defence argument. Crown counsel said:

In Ryan’s [the appellant’s] version, R.W. is not remembering it wrong, she’s not mistaken, she’s full on lying to you. You have to accept that. Do you? You need a real reason to conclude this. You can’t speculate or conclude that people just do things for no reason. I, I’ve talked about this. There’s just no ring of truth to the idea she just likes to make criminal allegations and submit to sex assault kits for fun.

33Crown counsel then turned to the two possible motives to fabricate put forward by the defence. He argued neither made sense and neither had support in the evidence. In advancing this argument, Crown counsel was not purporting to instruct the jury on the law as it relates to a witness’s motive. Instead, he was making submissions to the jury challenging the merits of the defense position that R.W. had motives to fabricate the allegation against the appellant. The Crown argued there was no evidence R.W. had a motive to fabricate and, as a matter of common sense and human experience, the jury could conclude R.W. would not fabricate a serious allegation against the appellant if she had no reason for doing so.

34It was open to the jury to reject the motives to fabricate offered by the defence and to conclude there was no evidence of a motive to fabricate. If the jury took that view, the absence of any evidence of a motive to fabricate could be used as one factor in assessing R.W.’s credibility: see: R. v. J.(H.), 2020 ONCA 165, at paras. 145-46.

35In his instructions, the trial judge told the jury a witness’s reason or motive for testifying a certain way was one of many factors to be considered in assessing the witness’s credibility. He did not elaborate and neither counsel asked him to elaborate. For example, the appellant did not ask the trial judge to explain the distinction between the absence of evidence of a motive and a proved absence of motive. I take it counsel at trial did not see the distinction as important to the defence case.

36Significantly, the trial judge said nothing to the jury to suggest there was no evidence R.W. had a motive to fabricate. To the contrary, he specifically reminded the jury of the motives put forward by the defence when summarizing the position of the defence. In doing so, the trial judge acknowledged R.W.’s motive, if any, for testifying the way she did, was very much in play and open to different interpretations on the evidence. Absent any objection by counsel, or any request for more detailed submissions concerning R.W.’s potential motives, I think the trial judge adequately addressed that issue in his instructions: see R. v. J.(H.), at paras. 150-55.

37The argument Crown counsel invited the jury to put the onus on the defence to show the absence of a motive to fabricate relies on a single sentence in Crown counsel’s address. When discussing one of the motives offered by the defence as a reason for R.W. fabricating her evidence, Crown counsel said:

It does not prove some motive to lie.

38There was no onus on the defence to “prove” R.W. had a motive to lie. The single sentence uttered by the Crown during his closing would suggest otherwise if considered in isolation. However, bearing in mind the trial judge’s repeated and correct instructions on the burden of proof, and the manner in which he dealt with the relevance of a witness’s potential motive, I have no doubt the jury understood the Crown carried the burden of proof throughout and the defence had no obligation to prove anything, including R.W.’s motive. The jury could not have been under any misapprehension as to the manner in which it should consider the evidence and submissions pertaining to R.W.’s alleged motives to fabricate her evidence: R. v. Darnley, 2020 ONCA 179, at para. 38.

(iii) Did Crown counsel improperly give evidence about the effect of alcohol consumption on human behaviour?

39The jury heard a lot of evidence about drinking in the several hours before the alleged attack on R.W. K.M., R.W. and the appellant all consumed a significant amount of alcohol. R.W. described herself as very intoxicated. The defence claimed she overstated her degree of intoxication.

40R.W.’s alcohol consumption was relevant to her credibility and the reliability of her evidence in at least two ways. It potentially made her memory of the relevant events less reliable. It also potentially explained her actions and reactions during the sexual encounter. In the latter sense, R.W.’s degree of intoxication arguably cut both ways. Significant intoxication offered an explanation for how R.W. came to fall asleep and her very confused state in the moments after she awoke to find the appellant sexually assaulting her. However, R.W.’s significant degree of intoxication might also offer support for the inference, that because of her drinking, R.W. made a very bad decision to have sex with someone her friend cared for and who she hardly knew and quickly came to regret that bad decision. That scenario fit with one of the motives offered by the defence for R.W.’s false allegation against the appellant.

41Although R.W.’s degree of intoxication was a significant issue, it was not directly relevant to consent, the crucial issue in the case. The Crown did not allege R.W. lacked the capacity to consent because she was intoxicated. The Crown alleged R.W. did not consent because she was asleep when the appellant attacked and sexually assaulted her. As my colleague, Trotter J.A., concisely put it in oral argument, this was a case about consent, not capacity to consent.

42The appellant points to four references in Crown counsel’s closing, contending they amounted to the Crown giving evidence about the effects of alcohol consumption. I do not propose to review each separately. None are particularly controversial and none are consequential. There was no objection taken to any of Crown counsel’s comments about the effect of alcohol consumption. Trial counsel’s silence reflects the relative insignificance of Crown counsel’s comments. I see no possible prejudice to the appellant.

(iv) Did Crown counsel improperly invite the jury to use the appellant’s presence at trial to make an adverse finding with respect to his credibility?

43R.W. testified that she met the appellant several times while he was dating K.M., but barely knew him. In his cross-examination, the appellant indicated he had known R.W. for about 12 years and did not agree with her suggestion that they had known each other for “a very brief time”. The appellant also pointed out that they were Facebook friends. It is fair to say, in his evidence, the appellant suggested he and R.W. knew each other better than R.W. had indicated in her testimony.

44The appellant’s description of the nature of his relationship with R.W. led the Crown to ask him what he knew about R.W. The appellant referred to four things. The appellant agreed with the Crown’s suggestion R.W. had testified about those four things. Crown counsel asked if there was anything else the appellant knew about R.W. The appellant could offer nothing else.

45In his closing argument, Crown counsel submitted the appellant’s evidence about how well he knew R.W. did not have a ring of truth. Crown counsel said:

I asked Ryan, tell me some things about R.W. If you’ve known her for 10 years, tell me some things. He told me four. She likes to play games on the computer and the Wii; she likes to drink; she has a boyfriend in New York; and that she was anti-social because of her anxiety issues. We all know that, all of us know that, we heard her testify to that, we’ve met her only once.

46The appellant was constitutionally entitled to be present throughout his trial. To suggest the appellant tailored his evidence to conform with evidence heard at trial could turn the exercise of that constitutional right into a strike against the appellant’s credibility: see R. v. Jorgge, 2013 ONCA 485, at paras. 12-19.

47Crown counsel did not suggest the appellant had used his presence at trial to conform his evidence to evidence given earlier in the trial by R.W. Instead, Crown counsel cross-examined the appellant to suggest, contrary to the appellant’s evidence in-chief, he did not know R.W. very well at all. In an effort to make this point, Crown counsel cross-examined to demonstrate the appellant knew no more about R.W. than anybody who had been sitting at the trial and heard her testify. The appellant’s answers confirmed the Crown’s suggestion. In closing, the Crown advanced a legitimate argument for the jury’s consideration.

B. The trial judge’s answer to the jury’s question

48The jury heard evidence blood samples were taken from R.W. as part of her sexual assault examination. They also heard these samples were typically sent to the Centre for Forensic Science (“CFS”) to test for the presence of drugs and/or alcohol. The jury did not hear any evidence the samples taken from R.W. were actually sent to the CFS or tested for blood/alcohol levels.

49R.W. was cross-examined on parts of her preliminary inquiry testimony. Those extracts included references to tests having been done by the CFS and results suggesting a high blood/alcohol level. None of those references, however, were admissible for the truth of their contents. The trial judge so instructed the jury soon after the jury heard the evidence making references to the preliminary inquiry transcript.

50In his jury charge, the trial judge summarized the evidence relevant to R.W.’s consumption of alcohol when addressing the issue of consent. The trial judge said, in part:

On the evidence, it’s clear she had consumed considerable alcohol during the early morning hours of June 17, 2017. On the other hand, the police officers who attended after the 911 call did not comment on her state of sobriety or the lack of ability to comprehend what was being discussed. There was no evidence offered of any signs of evident intoxication. The Crown did not produce the complainant’s hospital records to prove her blood/alcohol level at the time of attending at the hospital, or alternatively, to produce evidence the blood/alcohol readings were not taken. I remind you, again, the onus is at all times upon the Crown to prove all elements of the offence charged beyond a reasonable doubt.

51The trial judge properly alerted the jury to the absence of evidence that could impact on the jury’s ultimate assessment of R.W.’s state of intoxication.

52About three hours into their deliberations, the jury had two questions:

Was R.W.’s blood/alcohol ever tested/taken? If so, why wasn’t it presented as evidence?

53In answer to the jury’s question, the trial judge repeated the instruction set out above (para. 50). He also told the jury:

You have to decide this case on the evidence which is presented to you in the courtroom and not speculate on why particular evidence has not been called.

54The trial judge’s answers to the jury’s questions were responsive and correct. In answer to the first question, he repeated his instruction there was no evidence of testing. He also repeated his instruction that the absence of evidence could impact on whether the Crown had met its onus.

55In answer to the second question, the trial judge told the jury it must decide the case on the evidence presented, and not speculate about why evidence was not called. Given the jury’s question, it was essential that the trial judge tell the jury it could not speculate either about why test results were not presented at trial, or what those results might have been.

56The appellant submits the trial judge was wrong to tell the jury to decide the case only on the evidence heard in the courtroom and to not speculate why certain evidence was called. He argues this instruction removed the jury’s ability to find a reasonable doubt from the absence of the evidence.

57I reject this submission. A reasonable doubt can arise from the absence of evidence. The trial judge expressly said so in his instructions on reasonable doubt. An absence of evidence may preclude the jury from drawing inferences or conclusions necessary to a finding of guilt. A reasonable doubt cannot, however, arise from speculation about what uncalled evidence might have been, or why the evidence was not called.

58In this case, there was an absence of evidence about the testing for blood/alcohol levels, just as there was absence of evidence concerning observations by police officers at the scene. Those gaps were part of the evidentiary picture. A jury could properly consider those gaps in deciding what inferences to draw or not draw. The jury could not, however, go on and fill those gaps with speculation about whether tests were done and, if so, why the results were not presented.

59The distinction between improper speculation about uncalled evidence and considering gaps in the evidence when determining whether the case has been proved beyond a reasonable doubt is demonstrated in R. v. Tebo, 2003 CanLII 43106 (ON CA), 2003 O.J. No. 1853 (C.A.). In Tebo, the Crown had to prove the accused was in possession of certain items. The Crown offered no fingerprint or other forensic evidence connecting the accused to the items. Defence counsel argued the absence of any such evidence should leave the jury with a reasonable doubt. The trial judge effectively took that submission away from the jury, telling them counsel was inviting them to speculate about evidence that was not before the court.

60This court held the trial judge erred. In allowing the appeal, Feldman J.A. said, at para. 9:

This was not an invitation to the jury to speculate as to why the Crown had not called any fingerprint evidence, implicitly suggesting that the Crown knew the appellant’s fingerprints were not on the cards and wallet. Rather, counsel was properly pointing out to the jury the frailties of the evidence that could link the appellant with the items, which included an absence of anything that could have provided that link.

61The trial judge in this case did not err in his response to the jury’s questions.

conclusion

62I would dismiss the appeal.