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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Court: Court of Appeal for Ontario

Date: 2018-01-19

Docket: C62616

Panel: Simmons, Rouleau and Roberts JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

J.S. Appellant

Counsel

For the Appellant: Diana Lumba

For the Respondent: Scott Latimer

Hearing

Heard: May 4, 2017

On appeal from: The conviction entered on February 26, 2013 by Justice Robert F. Scott of the Superior Court of Justice, sitting with a jury.

Decision

Roberts J.A.:

A. Overview

[1] The appellant was convicted of sexual assault following a jury trial.

[2] The main issue on appeal relates to alleged improprieties by Crown counsel during her cross-examination and closing address to the jury with respect to the appellant's right to silence and the proper characterization of the forensic evidence. The question is whether these alleged missteps, in the absence of a correcting jury instruction, led to an unfair trial and a miscarriage of justice.

[3] The main issues at trial were whether the sexual assault had occurred at all and, if so, the identity of the assailant. The complainant was severely intoxicated and had little recollection of the assault. She did not identify the appellant as her assailant, and could not identify her assailant other than by a vague description, which did not match the appellant. The appellant testified and denied sexually assaulting the complainant. The appellant and his girlfriend testified that they were together in his bedroom when they heard and then responded to the complainant's cries from a nearby bedroom.

[4] According to the Crown's forensic expert, there was no physical evidence of sexual intercourse obtained from the examination of the complainant at the hospital. Trace amounts of male DNA were found on the complainant's underwear that forensic testing indicated could have been deposited by a number of males, including the appellant. The Crown's expert opined that there was saliva deposited on the underwear but she was unable to conclusively determine whether it was the source of the appellant's DNA.

[5] While cross-examining the appellant, Crown counsel asked him to explain how saliva had been deposited on the complainant's underwear. The appellant testified that the complainant had asked him to help find her underwear, and that he had been chewing his nails right before he picked it up. His girlfriend testified that she saw this occur. Crown counsel asked the appellant why, if he wanted to be helpful to the police, he did not tell them about picking up the complainant's underwear.

[6] Crown counsel returned to this theme during her closing address to the jury, submitting that the appellant and his girlfriend had concocted their story to explain the presence of his DNA in response to the results of the forensic testing. The Crown also invited the jury to use "common sense" to conclude that the saliva on the underwear came from the appellant even though the forensic expert was unable to come to this specific conclusion.

[7] Apart from a general warning that applied to the jury's assessment of all the witnesses, no correcting instructions on any of these issues were requested by the defence or given by the trial judge to the jury. Nor did defence counsel object to any part of the charge.

[8] The jury returned a guilty verdict on February 26, 2013. On May 1, 2015, the appellant was sentenced to 18 months in custody.

[9] The appellant submits that he did not receive a fair trial. He cites various problems that arose during the trial that he says unfairly undermined his defence. Given that the trial judge failed to remedy these issues with correcting instructions to the jury, he argues that there was a miscarriage of justice.

[10] I agree. In the context of the entire trial, the Crown's problematic and inaccurate statements and the absence of correcting jury instructions resulted in an unfair trial and a miscarriage of justice. For the reasons that follow, I would allow the appeal, set aside the conviction, and order a new trial.

B. Factual Background

[11] The complainant and the appellant were part of a group of friends who met up on June 18, 2010 for a night of drinking.

[12] For the complainant, the night's drinking started at around 9 p.m., when she and E.B. met up with the appellant and S.K., and later J.E., at J.E.'s house. The appellant was temporarily staying at J.E.'s house until his apartment was ready at the end of the month.

[13] After about an hour of drinking beers at J.E.'s house, the group left for a local bar, where they were joined by J.T. and B.F. They engaged in another hour or so of drinking. From there, most of the group spent a further hour or so drinking at another local bar, where they met the complainant's friends from Cobourg, D.P. and M.C. In the small hours of the morning, the group (absent M.C.) returned to J.E.'s house where they continued drinking.

[14] The complainant was already very intoxicated by the time she first left J.E.'s house. She frankly admitted having little recollection of the time spent at the first bar and none of being at the second. She could not say how she returned to J.E.'s house and had only a very vague recollection of sitting on the porch and then on the living room couch before she passed out. It is common ground that the complainant was carried by J.T. and B.F. to J.E.'s bedroom, where she was left to sleep fully clothed under the bed covers.

[15] In the meantime, the appellant and the other friends continued to drink in the living room of J.E.'s house. After about an hour, the appellant texted his then on-again off-again girlfriend, K.R., to come to the house to have sexual relations with him. When K.R. arrived, the appellant asked everyone to leave so that he and K.R. could be alone. Everyone but S.K. left the house at that point. S.K. had become ill and was vomiting in the bathroom. According to the appellant and K.R., S.K. left the house about 30 to 50 minutes after everyone else.

[16] J.T. testified that before she left to go home, she looked in on and spoke briefly to the complainant who had not changed positions since J.T. and B.F. had first placed her in J.E.'s bed. J.T. saw the complainant fall back asleep and closed her door. The complainant had no recollection of being put to bed or of speaking with J.T.

[17] The appellant testified that he and K.R. had been in his bedroom having sexual relations for 15 to 30 minutes - K.R.'s estimate varied between 15 to 30 minutes and about an hour - when they were interrupted by the complainant's cries from the bedroom across the hall.

[18] The complainant testified that she woke briefly at some point during the night, while it was still very dark, because she felt someone having sexual intercourse with her. She was coming in and out of consciousness and could only describe the man's silhouette on top of her, which she agreed did not match the appellant. She had fallen asleep wearing her contact lenses and said that she could not really see anything. She heard spitting. She testified that the next time she woke up, she saw the silhouette "backed up a little bit". She again lost consciousness.

[19] Waking again before about 5:00 a.m., the complainant found that she was alone but that her skirt was pushed up and she was not wearing the underwear that she had put on the previous morning. She became very upset and began to yell loudly and cry, which caused the appellant to enter the room and turn on the lights. The appellant and K.R. testified that K.R. came, too, and stood in the doorway. The complainant said that she did not see K.R. that night. The complainant testified that after entering the room, the appellant told her to be quiet because K.R. was sleeping in the other room and was angry; the appellant denied saying this to the complainant. The appellant and K.R. testified that the appellant was never out of K.R.'s sight.

[20] The complainant testified that she could not remember what she told the appellant but believed that she tried to tell the appellant what had happened. The appellant testified that she asked him if someone was in the room. The appellant left the room to search the house, returning a few minutes later to say that he had found no one.

[21] The appellant testified that the complainant asked about her underwear. He then spotted the underwear on the floor, picked it up and put it on her lap or on the bed. According to the appellant, the complainant calmed down and went back to sleep. He and K.R. then returned to his bedroom. They heard the complainant leave sometime later.

[22] Although the complainant conceded that she may have asked the appellant about her underwear, she testified that she found it in the bed. She did not recall picking it up herself. She testified that after the appellant left her room, she continued to look for her cellphone and then left J.E.'s house.

[23] Upon arriving at her home, the complainant sent two messages at 5:21 and 5:22 a.m. to J.E. via Facebook, indicating that "something bad" had happened to her. She wrote that she had no memories of what had happened, and that she had lost her cellphone. A few hours later, J.E. and J.T. came over to the complainant's apartment, and J.T. returned the complainant's cellphone which she had taken the night before for safekeeping. The complainant told them what happened. According to J.T., the complainant said, "Maybe it's just a bad dream". Later in the afternoon, the same friends took the complainant to the hospital where she underwent a sexual assault examination. The complainant's underwear was submitted for forensic testing.

Summary of the Forensic Expert Evidence

Overview

[24] The Crown called Melanie Richard, a forensic biologist with the Centre of Forensic Sciences ("CFS"), who testified about the analyses that she carried out. Oral and vaginal swabs were taken from the complainant at the hospital, and those swabs, as well as the complainant's underwear, were sent to and tested at the CFS lab. The chain of custody for these items was uncontested. The defence called no additional forensic evidence.

[25] As further explained below, Ms. Richard was able to develop two identifiable male profiles from the trace amounts of male DNA found on the complainant's underwear. The appellant could not be excluded as the contributor of the Profile 1 DNA. The complainant's boyfriend, T.F., could not be excluded from Profile 2. Ms. Richard also explained that there were additional amounts of male DNA present on the underwear, but in such small quantities that no profile could be developed. She testified that neither the appellant nor T.F. could be excluded as the contributors of this additional DNA, but that it also could have originated from other unknown male donors.

DNA Analysis

[26] Ms. Richard testified that the CFS processed the complainant's oral swab, as well as the internal and external vaginal swabs. No semen was detected on any of the swabs. For that reason, the CFS lab did not further test the oral and internal vaginal swabs for DNA. The external vaginal swab was tested for DNA that could originate from digital penetration, cunnilingus, or penile penetration with ejaculation draining out through the external genitalia. No male DNA was found on the external genitalia swab. However, Ms. Richard testified that it was "absolutely not" possible to equate the absence of semen or male DNA on the swabs with an absence of sexual contact.

[27] Since the swabs revealed no forensically meaningful information, the complainant's underwear was then examined. The following bodily substances were found on three small cut-outs from the underwear:

(i) on cut-out 1-1, which was taken from a portion of the crotch area, both semen and saliva were found;

(ii) on cut-out 1-2, which was taken from a portion of the crotch area and front panel, only semen was found; and

(iii) on cut-out 1-3, which was taken from the hip area, only saliva was found.

[28] These cut-outs were then tested for DNA. Most of the DNA identified on these samples came from the complainant. Ms. Richard testified that the additional DNA that was present was "a very minor amount relatively speaking" and could therefore not be used to deduce anything using the standard Autosomal STR DNA analysis.

DNA Profiles Developed

[29] Ms. Richard then proceeded to apply a Y STR test, which is specific to males, to exclude the complainant's female DNA and focus on any DNA contributed by a male. With this test, Ms. Richard deduced two different male profiles: Profile 1, which she linked to the appellant; and Profile 2, which she associated with the complainant's boyfriend, T.F.

[30] DNA samples had been taken from three males other than the appellant: S.K., who had been drinking with the group earlier in the evening, and later vomited in the bathroom at J.E.'s house; K.L., who had sent sexually explicit text messages to the complainant over the course of the evening; and T.F., the complainant's boyfriend, who was away camping for the weekend at the time of the alleged assault. No DNA samples were taken from B.F. or D.P., who were also at the house at some point during the evening.

[31] Ms. Richard was able to exclude S.K. and K.L. from both Profile 1 and Profile 2.

Profile 1

[32] The appellant was excluded as the source of Profile 2 but could not be excluded as the source of Profile 1. The DNA associated with Profile 1 was detected in the epithelial fraction of cells found in all three cut-outs, along with the additional lesser amounts of unidentifiable DNA. Ms. Richard testified that she could not discern from which bodily fluid or fluids the Profile 1 DNA originated, because it was present in such trace amounts and because it was associated with other sources of DNA. She could not preclude blood, semen, saliva or even sweat – a more diluted source of DNA than the other bodily fluids – as the source of the Profile 1 DNA. However, although she could not conclusively rule out semen as the source, she agreed in cross-examination that it was reasonable to say the Profile 1 DNA was not from sperm.

Profile 2

[33] T.F. was excluded as the source of Profile 1, but could not be excluded as the source of Profile 2. The Profile 2 DNA, which Ms. Richard opined originated from semen, was found in the sperm fraction detected in cut-out 1-2 from the crotch area of the underwear.

Unattributed Male Donors

[34] There was also DNA detected in each of the three cut-outs in such small amounts that no profile could be developed and no comparison could be made. Ms. Richard testified that she could not exclude the appellant or T.F. as the source of this remaining DNA. However, she testified that it was possible that the remaining DNA originated from other unidentified male donors.

C. Analysis

[35] The appellant alleges numerous errors that, he argues, resulted in trial unfairness. In my view, it is unnecessary to address all the grounds raised. To dispose of this appeal, it suffices to review the following two principal errors alleged by the appellant: the erosion of the appellant's right to silence and the mischaracterization of the forensic evidence.

[36] In this case, the appellant alleges that the Crown breached his right to silence by effectively encouraging the jury to view the following as positive evidence of guilt: the accused's failure to be more helpful to the police when initially questioned; his late explanation of the presence of his DNA on the complainant's underwear; and the possibility that the appellant and his girlfriend concocted and tailored their evidence after learning about the forensic evidence. He also contends that the Crown mischaracterized the forensic evidence in suggesting that it only supported the Crown's theory of the case.

[37] In the absence of correcting jury instructions to address these issues, the appellant submits that these errors resulted in an unfair trial.

[38] In analyzing the appellant's allegations of trial unfairness, I am mindful that an accused person is entitled to a fair trial, not a perfect one: R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 194. On appeal, it is not the court's task to search for isolated imperfections in the conduct of the trial or minutely dissect the jury charge. Rather, a new trial must be ordered only if the process as a whole has breached the appellant's right to a fair trial and resulted in a miscarriage of justice: R. v. Henderson, 134 C.C.C. (3d) 131, at para. 33 (Ont. C.A.); R. v. A.G., 2015 ONCA 159, 124 O.R. (3d) 758, at paras. 22 to 25; R. v. John, 2016 ONCA 615, 133 O.R. (3d) 360, at paras. 51 to 83, leave to appeal refused, [2017] S.C.C.A. No. 101.

[39] With these general principles in mind, I turn next to consider the appellant's allegations of trial unfairness in the context of the trial process.

(1) The Crown's Case

[40] The Crown's case was weak. Because of the complainant's difficulty remembering the event, it depended heavily on the forensic evidence. To prove its case, the Crown was required to persuade the trier of fact to make three findings. The jury had to accept the complainant's claim that an assault had occurred beyond a reasonable doubt. It had to reject the testimony of both the appellant and K.R. as neither true nor capable of raising a reasonable doubt. And, it had to accept that the evidence as a whole established the appellant was the perpetrator of the crime, again beyond a reasonable doubt.

(a) Limited independent evidence of sexual intercourse

[41] The complainant testified that she felt penetrated by a penis. By her own admission, her account of the sexual assault was vague and she could not remember "98%" of what had occurred on the evening in question. The defence raised issues about her characterization of the events as a bad dream and lack of memory and thus raised issues concerning the reliability of her evidence. There was little independent evidence, forensic or otherwise, that sexual intercourse had taken place. Nevertheless, Crown counsel advised the trial judge during the pre-charge conference that the Crown was not alleging that anything less than sexual intercourse had taken place. And the trial judge instructed the jury accordingly.

(b) Absence of direct evidence identifying the perpetrator

[42] The complainant could not say when the sexual assault had taken place, other than that it must have occurred sometime after she had been put to bed by J.T. and B.F. Further, she gave only a limited description of the perpetrator, and one that did not match the appellant. At no time did she identify the appellant, whom she knew, as the perpetrator.

[43] On the complainant's evidence, it was not implausible that the alleged assault was perpetrated by one of the other males, who was not tested or excluded as a source of the male DNA on her underwear, and who could have been present at J.E.'s house when the sexual assault took place. There is no dispute that everyone who returned to J.E.'s house knew that the complainant was sleeping in J.E.'s bed.

[44] The appellant denied sexually assaulting the complainant. His account was corroborated by his now common-law spouse, K.R., and placed him in the next bedroom with K.R. at the time when the Crown submitted that the assault took place.

(c) Inconclusiveness of the forensic evidence

[45] The Crown's case against the appellant therefore relied heavily on the forensic evidence to connect him to the crime. This is highlighted by the fact that the police only charged the appellant after receiving the forensic results. I agree with the appellant that the forensic evidence, standing alone, was also inconclusive. This was so for several reasons.

[46] First, not all of the males who were at the house that night were tested and excluded. B.F. and D.P. were not tested. Furthermore, S.K. and K.L. were only excluded from Profiles 1 and 2.

[47] Second, as highlighted by the appellant, it was not possible for the expert to provide any opinion on what bodily fluid was the source of the appellant's DNA because the quantity of DNA associated with the appellant's profile was so small. As Ms. Richard concluded, "I can't rule out any bodily fluids so I can't – I can't – it's uninformative. I can't tell you … what it originates from". The appellant and K.R. both testified that the appellant had picked up the complainant's underwear to hand it to her. Since the expert agreed that it was possible for the appellant's DNA to have been transferred to the underwear in this way, the forensic evidence was potentially consistent with both the theory advanced by the defence and the Crown.

(2) Trial Unfairness

[48] Given the weakness of the Crown's case, it was particularly important for the Crown to avoid impermissible lines of reasoning and accurately present the evidence in addressing the jury.

[49] With this context in mind, I next consider two of the specific instances of trial unfairness alleged by the appellant.

(i) The right to silence and alleged concoction

[50] I agree with the appellant's submission that the repeated suggestion by Crown counsel that the appellant was required to provide the police with information or otherwise be helpful to the police undermined his right to silence.

[51] The appellant did not forfeit his constitutional right to silence because he chose to speak about some but not all of the details that he later testified to at trial: R. v. W.L., 2015 ONCA 37, 123 O.R. (3d) 641, at para. 19.

[52] During the appellant's examination in chief, his own counsel asked him to explain how his DNA had come to be on the complainant's underwear. This opened the door for Crown to ask some further questions on this topic.

[53] However, in my view, Crown counsel's line of inquiry went too far and impermissibly suggested that the appellant had a positive obligation to provide information to the police. Crown counsel's problematic exchange with the appellant proceeded as follows:

Q. Okay. And when you went in you wanted to be helpful to the police?

A. Yes.

Q. Ummm – you told the police everything you could to try and help them?

A. From what I remember and I remember telling them that there was probably stuff I didn't remember at the time but I could probably help later.

Q. Was there something else?

A. The underwear – picking up the underwear.

Q. Right. Okay. We're going to talk about that in a bit. From your point of view you're sitting there with the Detective; you want to give him every bit of relevant information you could remember at that time because you believe – you know – your friend has had this horrible thing happen to her, correct?

A. Yes.

Q. And she was your friend?

A. Yes.

Q. You helped the police by giving them actually a number of different cell phone numbers including [K.R.'s]?

A. Yes.

Q. Okay. You referenced this a little earlier and we'll talk about it now if we may; you didn't volunteer to Det. Jarvis that you gave her her underwear, right?

A. The discussion didn't come up. Like I told him, I didn't remember every single detail and I could probably assist him later.

Q. But you didn't think that was important for the police officer to know that her underwear was off?

Q. Okay. In that 45 minute interview where you're being extremely helpful, the underwear part doesn't come to mind?

A. I was being as helpful of what I could remember at the time.

[54] In addition, after the appellant had offered his nail-biting as a possible explanation of the presence of his DNA and of saliva on the complainant's underwear, in her closing address, Crown counsel emphasized the appellant's failure to mention picking up the underwear, and as will be further discussed, invited the jury to find that the appellant and K.R. had concocted their evidence:

[The appellant] in his evidence I suggest had a lot of problems. I am asking you to reject his evidence. For example, he said in cross-examination for the first time that he chewed his nails and that this is how – potentially how his saliva might've ended up in [the complainant's] underwear. Ummm – I leave that for you to assess but I suggest to you that it's late – it's interesting that didn't come out in-chief. Ummm – I don't know if you've been watching him during the Trial and noticed him chewing on his fingernails; I haven't but I don't get to see him very well where I'm sitting so I leave that with you if you think that makes sense. If you think that the act of putting one's fingers in one's mouth and chewing on fingernails is going to create the kind of transfer that we heard about from Ms. Richard in the crotch of [the complainant's] underwear; that's – that's speculation in my respectful submission.

Both [K.R.] however and [the appellant] have a fatal flaw in their evidence and I think it's – it's the House of Cards and this is the cards that will fall down; neither mentioned underwear when they talked to Detective Jarvis. … You're sitting there, you know this police officer is investigating a sexual assault. You're the one that was in there with [her] right after it happened. He asks you how she's dressed or how – "Tell us about her clothes? What clothes has she got on or not on?" Something about clothes and being dressed and you don't mention her underwear is off.

So, neither mention this underwear to Detective Jarvis and I'm suggesting to you there's a very good reason why they don't mention it; it's cause [sic] that didn't happen that way. It didn't happen. He never touched her underwear. This is concocted to explain the presence of the DNA on the underwear. [Emphasis added.]

[55] In all the circumstances, absent a correcting instruction by the trial judge, the jury could have been left with the impression that if the appellant were an innocent person, he would have volunteered the information that he had touched the complainant's underwear and would have provided any explanation consistent with his innocence to the police at the first opportunity: R. v. Poirier, 146 C.C.C. (3d) 436 (Ont. C.A.), at para. 21. Most juries would feel that an innocent man would be prompted to tell his side of the story, and, without a correcting instruction, even the most reasonable and fair-minded jurors might draw an inference that the appellant should have said something about the underwear before trial: Poirier, at para. 21; R. v. Chambers, [1990] 2 S.C.R. 1293, 59 C.C.C. (3d) 321, at para. 65.

[56] In consequence, by suggesting that the appellant should have given the version of events that he gave at trial at an earlier opportunity, Crown counsel was effectively and impermissibly inviting the jury to treat the appellant's silence in that regard as evidence of his guilt. While it was open to the Crown to encourage the jury to reject the appellant's trial evidence as implausible and the appellant as not worthy of belief, it was impermissible to intimate that the jury should use the appellant's failure to earlier reveal his version of the events as positive evidence of guilt: W.L., at para. 18.

[57] In addition, as noted above, after the appellant had offered his nail-biting as a possible explanation of the presence of his DNA on the complainant's underwear, in her closing address, Crown counsel invited the jury to find that the appellant and K.R. had concocted their evidence:

So, neither mention this underwear to Detective Jarvis and I'm suggesting to you there's a very good reason why they don't mention it; it's cause [sic] that didn't happen that way. It didn't happen. He never touched her underwear. This is concocted to explain the presence of the DNA on the underwear.

[58] The Crown also referred to the appellant and K.R. as "people who are trying to get their stories straight and not getting them straight".

[59] The trial judge summarized the Crown's concoction theory in the jury charge.

[60] I agree with the appellant's submission that the Crown's suggestion that the appellant and K.R. concocted their evidence to respond to the forensic results violated the well-established prohibition against allegations to the jury that the accused tailored his evidence after receiving disclosure: see John, at paras. 58-60.

[61] Moreover, particularly in the context of Crown counsel's "fatal flaw" submissions in her closing address about not mentioning the underwear to the police, the Crown's follow-up suggestion that the appellant and K.R. concocted their evidence that the appellant touched the complainant's underwear amounted to an impermissible invitation to the jury to use disbelief of that evidence as evidence of guilt.

[62] Here, there was no independent evidence capable of demonstrating fabrication: O'Connor, at para. 23. A jury instruction on consciousness of guilt was not therefore available. In these circumstances, it was impermissible for Crown counsel to leave the impression that the jury could infer the appellant's guilt from concoction. The trial judge erred in failing to correct Crown counsel's erroneous suggestions in his jury charge.

[63] I do not accept the Crown's submission that there was little risk that the jury would use their disbelief of the appellant's exculpatory statements as proof of his guilt. There is always a real danger that without some instruction from the trial judge, a jury could make the leap from their disbelief of an accused's exculpatory explanation to a finding of guilt based on that disbelief, especially if given for the first time at trial: R. v. Coutts, 126 C.C.C. (3d) 545 (C.A.), leave to appeal denied, [1998] S.C.C.A. No. 450; R. v. Oland, 2016 NBCA 58, [2016] N.B.J. No. 288, at paras. 66-69, leave to appeal refused, [2016] S.C.C.A. No. 188. That risk was exacerbated here by the Crown's closing address.

[64] Nor do I accede to the Crown's assertion that the trial judge's general instructions concerning the appellant's right not to testify or present evidence, the use of the appellant's (and all witnesses') prior inconsistent statements, and the standard R. v. D. (W.), [1991] 1 S.C.R. 742 direction, were sufficient to mitigate the risk that the jury would impermissibly infer guilt from the appellant's silence and Crown counsel's suggestion that he fabricated evidence.

[65] Here, nuanced instructions were required to correct the identifiable problems that arose in this trial, along the lines indicated in W.L., at para. 27, John, at para. 63, and O'Connor, at para. 36:

i. The jury was entitled to take into account, in assessing the appellant's credibility, all of his evidence, including his explanation of why he did not provide a fuller account of his conduct.

ii. The jury ought to have been cautioned, however, with specific reference to Crown counsel's suggestions that the appellant should have been helpful by speaking to the police, that the appellant had a right to remain silent, had a right to choose what to say and what not to say, and that his failure to provide a fuller explanation, from the time of his interrogation until trial, could not be used to assess his credibility at trial.

iii. The jury ought to have been told that the appellant had no obligation to disclose anything to police, and that no adverse inference could be drawn against him from his failure to do so.

iv. The jury also should have been told that even if they did not believe the appellant's exculpatory version of events, they could not use their disbelief as positive proof of the appellant's guilt.

[66] Had the trial judge provided specific instructions to the jury to correct the impermissible inferences left with the jury by the Crown, and to assist the jury in the allowable use that could be made of the appellant's silence and trial version of events (as was done in John), these problems would not have resulted in an unfair trial. However, in this case, the trial judge's non-specific instructions, which failed to clarify how they applied to the particular issues that arose, were insufficient to alleviate the unfairness created by the Crown's erosion of the appellant's right to silence and impermissible suggestions that the appellant had fabricated evidence and was therefore guilty.

(ii) Mischaracterization of the forensic evidence

[67] The Crown also significantly mischaracterized the nature and utility of the forensic evidence. This was significant because this evidence served to prop up an otherwise weak Crown case.

[68] One of the troubling aspects of the Crown's case was the identity of the assailant. Since the complainant did not identify the appellant as the perpetrator and since he was not the only male in the house on the evening in question, the forensic evidence of his DNA on the complainant's underwear was central to connecting him to the offence. While there was direct testimony from the complainant that a sexual assault had occurred, not only could she not identify the appellant, whom she knew, as her assailant, but her description of the assailant also did not correspond to him.

[69] As elicited, however, the forensic evidence did not identify which bodily fluid was the source of the appellant's DNA on the complainant's underwear. Standing alone, it did no more than confirm that the appellant had come into contact with the underwear. It was thus potentially consistent with both the Crown and defence theories.

[70] However, Crown counsel here overstated or mischaracterized the forensic evidence in two important ways. First, she overstated the significance of the forensic evidence, asking the jury to draw conclusions that the forensic expert specifically said she could not draw. Second, she stated that two other males subjected to DNA testing had been eliminated as DNA contributors when that was not the case.

[71] In the following passage taken from her closing address, Crown counsel mischaracterized Ms. Richard's evidence and then invited the jury to find that the only reasonable inference available from this mischaracterized forensic evidence was guilt:

…And I suggest to you when you use your common sense, there's a DNA Profile in that underwear in at least two locations from [the appellant]. He cannot be excluded as a source of that Profile in the crotch and on the hip of the underwear, both of those locations are where all the saliva is present. What makes sense? What does your common sense tell you? Common sense, I suggest tells you that [the appellant] had spit on his hands or on his penis or both or performed oral sex on [the complainant]. In any event, it was introduced in some fashion into her underwear during the course of his assault on her. Remember, she said she heard spitting during the incident. You know the time line of when she was interviewed by police and when the DNA results were returned. You know she could not have known how significant that one little utterance might have been. She didn't make that up randomly and get lucky; doesn't work backwards. She didn't dream that. It happened. Her assailant was spitting, [and lo and behold] we have amylase in those underwear indicative of saliva in the same locations where the DNA Profile associated to [the appellant] is found. What does your common sense tell you about those facts? [Emphasis added.]

[72] The Crown's suggestion here mischaracterized in several ways Ms. Richard's evidence about the source of the appellant's DNA on the complainant's underwear. Ms. Richard did not testify that the Profile 1 DNA associated with the appellant was from his saliva. As I have already noted, the expert specifically stated that she could not identify the bodily fluid that was the source of the appellant's DNA. She clearly testified that she could not "rule out any bodily fluids" (emphasis added) as the source of the appellant's DNA on the complainant's underwear.

[73] Further, Ms. Richard indicated that the DNA of males other than the appellant could have been on the underwear where the saliva was present. She was not able to connect the appellant's DNA to any of the saliva, let alone to all of the saliva. She also said that the saliva could have come from the complainant, from at least one other unidentified male DNA contributor (who could have been the appellant, T.F. or at least one other unknown male), or from any combination of these sources. The Crown's framing of this evidence was inaccurate and overstated in a significant way.

[74] Ms. Richard acknowledged that one explanation for the amylase finding could be Crown counsel's hypothetical that someone with "saliva on their hands … correlates better with the amylase finding that you have in this particular case" than with a sweat-based transfer. However, as already noted, Ms. Richard was not able to connect the appellant's DNA to any of the saliva on the complainant's underwear.

[75] Finally, I note that, in her closing address, Crown counsel stated that the DNA of both K.L. and S.K. had been tested and that they were "eliminated". Once again, this is an example of inaccuracy and overstatement on the part of Crown counsel. Although Ms. Richard testified that both men were eliminated as DNA sources for Profile 1 and Profile 2, neither they, nor anyone else, could be eliminated as the source of the DNA detected in insufficient quantities to generate a profile.

[76] It was open to Crown counsel to suggest to the jury that the presence of the appellant's DNA on the complainant's underwear was a piece of circumstantial evidence to consider, along with all of the other evidence elicited at trial, and to conclude that the Crown had proven the appellant's guilt of the offence beyond a reasonable doubt. However, Crown counsel went further and strayed into impermissible mischaracterization of the forensic evidence.

[77] The trial judge did not correct the mischaracterization of the forensic evidence. The trial judge's non-specific instructions were insufficient to correct the significant overstatements in this case.

[78] There is always the risk that a jury may treat forensic evidence as infallible because of its scientific nature and, as a result, overemphasize its significance. It is therefore very important that forensic evidence is carefully and accurately explained. The forensic evidence as elicited in this case was inconclusive and difficult to understand. It is clear from the record that the trial judge and counsel grappled with how it could be effectively presented to the jury. In the absence of a clear correcting instruction, the Crown's mischaracterization of the nature and use the jury could make of the forensic evidence resulted in an unfair trial.

(3) Overall effect on trial fairness

[79] In my view, the cumulative effect of the problems discussed above required nuanced correcting instructions from the trial judge. In the absence of such instructions, there was a real danger that the jury was misled and that as a result, the jury would not have properly assessed the evidence, especially the appellant's exculpatory evidence and the forensic evidence.

[80] While I note that defence counsel failed to object to these issues at trial, the lack of objection is not determinative; the responsibility for the jury charge ultimately falls on the trial judge: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 47. Here, the trial judge erred by failing to correct the problems that compromised trial fairness.

[81] As a result, I conclude that the trial was unfair and that there was a miscarriage of justice.

D. Disposition

[82] Accordingly, I would allow the appeal, set aside the conviction, and order a new trial.

Released: January 19, 2018

"L.B. Roberts J.A."

"I agree Janet Simmons J.A."

"I agree Paul Rouleau J.A."

Footnotes

[1] The appellant did not pursue the unreasonable verdict ground at the hearing of the appeal.

[2] J.E. testified that she was not drinking that evening as she was not feeling well. She was carded at the second bar and did not join the group inside. Soon after the group returned to her house, she and E.B. left to sleep elsewhere.

[3] The substance referred to as saliva was actually amylase, a protein found in saliva and other bodily fluids. Ms. Richard opined that the amylase found in these locations was contained in saliva.

[4] Ms. Richard explained that they used a modified extraction method to fractionate the cell types that were present and extracted DNA from the non-sperm (epithelial) fraction first and then from the sperm fraction.

[5] Ms. Richard explained that DNA is found in cells, for example, sperm cells. Some bodily fluids are a rich source of DNA, such as blood, semen and saliva; others not so much, for example, sweat, which is a carrier of sloughed-off epithelial cells picked up from the skin and outer surface of the body.

[6] Ms. Richard explained that sperm cells are contained in semen and that sperm cells are the main cellular component of semen, although there is the possibility for epithelial cells to be present.

[7] J.T.'s evidence, if accepted, may have restricted the time frame to sometime after she checked on the complainant before departing.