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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

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

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(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.

Court Information

COURT OF APPEAL FOR ONTARIO

DATE: 20240906

DOCKET: C66921

Hourigan, Thorburn and Favreau JJ.A.

BETWEEN

His Majesty the King Respondent

and

Biao Zhou Appellant

Counsel: Biao Zhou, acting in person Linda Shin and Nicholas Hay, for the respondent Breana Vandebeek, amicus curiae

Heard: March 14, 2024

On appeal from the conviction entered on November 8, 2018 by Justice Grant R. Dow of the Superior Court of Justice, sitting with a jury.

Favreau J.A.:

Reasons for Judgment

A. Introduction

[1] After a trial by jury, the appellant was found guilty of sexual assault and forcible confinement.

[2] The appellant represented himself at trial. Court appointed amicus participated throughout the trial and separate counsel was appointed to cross-examine the complainant pursuant to s. 486.3 of the Criminal Code, R.S.C. 1985, c. C-46 (“s. 486 Counsel”). A different lawyer acted as amicus on appeal.

[3] The appellant raises multiple grounds of appeal. For the most part, these grounds of appeal are an attempt to have the court make different findings of fact than those made by the jury, which is not the role of this court on appeal.

[4] Amicus raises a number of additional grounds of appeal, including in relation to the jury selection, closing arguments and instructions to the jury. As explained below, I am satisfied that the trial judge did not make any reversible errors.

[5] Accordingly, I would dismiss the appeal.

B. Background

[6] The events underlying the appellant’s conviction occurred in January 2016. At that time, the appellant was in his mid-forties. He worked for TD Canada Trust as a Senior IT Developer. He owned two homes in Toronto located a few doors from each other. He lived in one of the houses, and rented rooms to university students in both houses.

[7] At the time of the incident, the complainant was in her early twenties. She had come to Canada from China to study at the University of Toronto. The complainant became aware that the appellant had a room to rent in one of his houses. She contacted him to make arrangements to rent the room, which was in the house a few doors down from the appellant’s residence. She picked up the keys to the room from the appellant on January 6, 2016.

[8] There is some discrepancy in the witnesses’ evidence regarding what happened next.

[9] The complainant testified at trial that, soon after renting the room, on January 9, she helped the appellant sort some books that had been left in the house where her room was located. She then helped him bring some of the books back to his residence and accepted his invitation to stay for lunch. After lunch, as the complainant was washing the dishes, the appellant approached her from behind and started hugging her. She asked him to stop. He then carried her to his bedroom, removed her stockings and underwear, and penetrated her vagina with his penis. Again, she asked him to stop.

[10] The complainant testified that the appellant did not use a condom and that he ejaculated inside her vagina. After the assault, she told the appellant she was worried about getting pregnant. They then walked to a Shoppers Drug Mart to buy the Plan B pill.

[11] The appellant’s evidence was that the sexual contact between him and the complainant was consensual. He testified that when the complainant was at his house for lunch, she was flirting with him. His evidence was that she had flirted with him before, when she picked up the keys to her unit. On January 9, after lunch, she was washing the dishes when she asked him to come look at a cracked cup as a pretense to draw him closer. She then complained about her stomach hurting and asked to lie down in his bedroom.

[12] Once they were on his bed, the complainant told him her pain was due to menstrual cramping. She moved his hand to her vaginal area and suggested he massage her. She massaged him too, undid his belt and pants, and engaged in sexual activity with her hands and mouth. His semen got on her hand, after which she touched her vagina, resulting in semen entering her vagina. According to the appellant, this explained why a sexual assault examination performed on the complainant shortly after their encounter showed the presence of his DNA in the complainant’s vagina.

[13] The appellant disputed the explanation provided by the complainant for going to the drug store together and purchasing Plan B. The appellant, who denied vaginal intercourse, said he purchased the pill and other items to help the complainant with her menstrual pain.

[14] The appellant testified that he and the complainant next went to their respective residences. The complainant then reached out to the appellant via online messaging and said she needed a new computer. In response, the appellant offered to give her his iPad. The complainant testified that she viewed the offer as compensation for the sexual assault. In contrast, the appellant claimed that he offered the complainant his iPad because she told him she was a poor student who could not afford a computer. The appellant never gave the complainant an iPad.

[15] On the evening of January 9, after speaking to a friend about the incident, the complainant called 911 and reported it to the police. She was then examined and interviewed. The police arrested the appellant the next day.

[16] The appellant’s trial proceeded before a jury. The jury found the appellant guilty of sexual assault and forcible confinement.

C. Issues on appeal

[17] The appellant and amicus raise several issues on appeal.

[18] Amicus raises the following issues:

(a) The trial judge made errors in the jury selection process;

(b) The trial judge erred in responding to a jury question;

(c) The trial judge erred in how he dealt with the loss of one of the jury members’ notes;

(d) The trial judge erred in dealing with closing submissions;

(e) The trial judge made errors in the jury instructions regarding after-the-fact conduct; and

(f) The trial judge made errors in the jury instruction regarding sexual assault and consent.

[19] The appellant raises numerous additional issues, including an argument that amicus appointed by the court at trial provided ineffective assistance and that the trial judge made numerous rulings that prevented him from presenting various pieces of evidence, such as evidence that the video footage from Shoppers Drug Mart had been tampered with, evidence of the 911 call by the complainant and testimony from an out-of-country witness. The appellant also raises issues similar to those raised by amicus regarding the jury selection process.

[20] In the analysis below, I start with the issues raised by amicus followed by some of the additional issues raised by the appellant. However, I do not address the issue of ineffective assistance raised by the appellant because he was specifically prohibited from raising this issue by the order of MacPherson J.A. dated August 5, 2021, which was upheld by a panel of this court on September 1, 2021: R. v. Z., Biao (1 September 2021), M52763 (C66921) (Ont. C.A.).

D. Jury selection process

[21] As mentioned above, the appellant represented himself at trial, including during the jury selection process. Amicus at trial provided some assistance with the jury selection process and s. 486 Counsel attended intermittently.

[22] Amicus on appeal submits that the trial judge made errors in relation to the selection of Juror #11, the timing of the dismissal of Juror #12 and in failing to excuse Juror #2. I address each of these issues in turn below, including the factual context relevant to each issue.

(1) Selection process for Juror #11

[23] Amicus raises a number of issues in relation to the selection of Juror #11. Before addressing these issues, it is helpful to start with a review of events leading to the selection of Juror #11.

[24] Early in the selection process, when another prospective juror advanced to be sworn and answer the challenge for cause question, [1] the appellant asked to be reminded of the juror’s occupation. The trial judge denied the request and told the appellant to ask the challenge for cause question. After the juror answered the question, the triers accepted the juror, but the appellant used one of his peremptory challenges to remove the juror.

[25] Later in the process, after nine jurors had been selected, the trial judge told the appellant that he had run out of peremptory challenges but that he would get two additional challenges once the process for selecting two alternates had started.

[26] By the time Juror #11 was up for selection, the appellant had no peremptory challenges left. Before being asked the challenge for cause question, Juror #11, who was the principal of a Catholic school, referred to his own experience dealing with victims of sexual assault:

JUROR NUMBER 48392: Your Honour, I have a question. I have no – I am willing to serve, I just wanted to make known that in my years of administration, 10 of them were in an all-girls high school and I dealt with several cases of sexual assault and physical assault, and also a close friend of mine’s daughter was also sexually assaulted. So I wanted to make that known up front, but other than that.

THE COURT: Sounds like you’re – you feel you’re capable of serving, listening to instructions, listening to the evidence?

JUROR NUMBER 48392: Yeah.

THE COURT: Okay. You’re on.

JUROR NUMBER 48392: If there’s a bias that’s….

THE COURT: No, you’re good.

[27] After the appellant asked the challenge for cause question, the juror responded: “It certainly wouldn’t be affected by the fact that you’re Chinese. I mean, it may – my decision might be affected by something I hear that brings back a memory to me. That’s, that’s my honest answer there is that my experiences [ sic ].” The appellant then asked, “What kind of a memory?”, but the trial judge intervened and told him he could not ask any questions.

[28] The triers of fact then found the juror acceptable and he was sworn in as Juror #11.

[29] Amicus submits that the trial judge made three errors in relation to the selection of Juror #11: (1) the trial judge should have assisted the appellant given that he was self-represented, and allowed him to ask about the earlier prospective juror’s occupation, which also could have avoided the need to use a peremptory challenge; (2) the trial judge should have calculated the appellant’s peremptory challenges as totalling 14, rather than broken them down into 12 for the selection of the jury members and 2 for the selection of the alternates; and (3) the trial judge should have excused Juror #11 on the basis of bias.

[30] I agree with amicus that the trial judge committed an error in the procedure he used for allocating peremptory challenges. However, I agree with the respondent that this was a procedural error that did not cause prejudice, and the curative proviso in s. 686(1)(b)(iv) of the Criminal Code should therefore apply.

[31] Prior to the abolition of peremptory challenges in 2019, s. 634(2)(b) of the Criminal Code entitled an accused (and the Crown) to 12 peremptory challenges on a jury trial involving the offences with which the appellant was charged: see R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136, at para. 10. Section 634(2.1) provided for the addition of one peremptory challenge in respect of each alternate juror. The provision was worded as follows:

If the judge makes an order for alternate jurors, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one for each alternate juror. [Emphasis added.]

[32] The trial judge appears to have interpreted ss. 634(2)(b) and 634(2.1) in combination to mean that the first 12 peremptory challenges were to be applied to the selection of the 12 jury members and the next 2 peremptory challenges were to apply to the selection of the alternate jurors. However, this does not accord with the plain wording of s. 634(2.1), which referred to the “total number of peremptory challenges” being “increased by one for each alternate juror” (emphasis added).

[33] Moreover, the trial judge’s interpretation is incongruous with the fact that s. 634(2.01), which addressed the number of peremptory challenges when a jury of 13 or 14 members was appointed, used almost identical language to s. 634(2.1):

If the judge orders under subsection 631(2.2) that 13 or 14 jurors be sworn in accordance with this Part, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one in the case of 13 jurors or two in the case of 14 jurors. [Emphasis added.]

[34] Interpreting s. 634(2.01) consistently with how the trial judge interpreted s. 634(2.1) would create a distinction between the selection of the first 12 jurors and the remaining jurors that is not supported by the plain language of s. 634(2.01) or of any Criminal Code provision referring to additional jurors.

[35] The Crown argues that the trial judge was simply exercising his trial management powers. I disagree. Trial judges have broad trial management powers, but these powers are limited to discretion over matters that are not contrary to provisions in the Criminal Code: R. v. Province, 2019 ONCA 638, at para. 89. As reviewed above, the wording of s. 634(2.1) was clear; it did not suggest that a trial judge had the discretion to distinguish between peremptory challenges available to challenge jurors and alternate jurors.

[36] The Crown further argues that, even if the trial judge did make an error, this is a case where the proviso in s. 686(1)(b)(iv) of the Criminal Code should apply. I agree. However, before addressing this issue, I would propose first dealing with the other alleged errors made by the trial judge in the jury selection process in order to assess whether any constitute further errors that should be considered when addressing the proviso.

(2) Timing of dismissal of Juror #12

[37] Amicus submits that the circumstances under which Juror #12 was dismissed “created a reasonable apprehension of unfairness.”

[38] After the appellant had exhausted 12 peremptory challenges, a prospective juror raised a concern that, because of his belief that his daughters would tell the truth about a serious crime of this nature, he would “find it difficult to be impartial based on that relationship that I have with my daughters”.

[39] The triers nonetheless found him acceptable and he was sworn in as Juror #12. Juror #12 next participated as a trier in the selection of the first alternate juror.

[40] After two alternate jurors were selected and the trial judge gave his opening instructions to the jury, s. 486 Counsel submitted that Juror #12 should be dismissed on the basis of an appearance of partiality. The Crown and amicus at trial supported this position. The trial judge acceded to the request and dismissed Juror #12, who was then replaced with the first alternate juror.

[41] On appeal, amicus submits that, given Juror #12 was dismissed based on an appearance of partiality, Juror #12’s participation in the selection of the alternates was also tainted, and the first alternate juror should therefore not have taken the place of Juror #12.

[42] Amicus has provided no authority for this position. I agree with the Crown that there is no basis for this attack on the jury selection process. At trial, while amicus and the Crown agreed that Juror #12 should be removed, they proposed that the first alternate juror take his place and raised no concerns regarding Juror #12’s participation in the selection of alternates. There is no basis for finding that Juror #12’s participation as a trier on the challenge for cause of the first alternate juror should give rise to any concern over the alternate juror’s ability to follow his sworn oath, follow the trial judge’s instruction or be impartial.

[43] The threshold for establishing reasonable apprehension of bias is high, and the trial process incorporates many safeguards to protect against potential jury partiality: R. v. Tutiven, 2022 ONCA 97, 411 C.C.C. (3d) 475, at para. 24, leave to appeal refused, [2022] S.C.C.A. No. 275. In this case, the concern that the alternate juror may not have been impartial because Juror #12 was one of the triers is speculative. In the absence of any further evidence raising concerns about the alternate juror, I see no merit to this ground of appeal.

(3) Refusal to remove Juror #2

[44] After the jury selection process was completed, the appellant raised an issue with respect to Juror #2. The appellant had done his own research on this juror and found that she had published materials in 1998 and 1999 dealing with sexual violence against women. One of those publications was her doctoral thesis, which included information about her own work at a rape crisis centre. By the time of the trial, Juror #2 worked in the area of midwifery, and all her other subsequent publications the appellant found were on that topic.

[45] The appellant first raised this issue in front of the jury. He asked that Juror #2 be removed because she had not disclosed this background and because her prior work on sexual violence against women would affect her ability to decide the case impartially. The trial judge excluded the jury, heard submissions on the issue and dismissed the request. The appellant later renewed his request, and the trial judge again dismissed the request that Juror #2 be removed from the jury.

[46] Amicus and the appellant submit that the trial judge erred in refusing to discharge Juror #2. I disagree.

[47] There is a strong presumption that jurors will discharge their duties with impartiality and a heavy burden on parties who seek to rebut that presumption: R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18; R. v. Godwin, 2018 ONCA 419, at para. 14. When deciding whether to discharge a juror pursuant to s. 644 of the Criminal Code, the trial judge is to approach the issue from a presumption that jurors follow their duties in accordance with the trial judge’s instructions and the oath they made: R. v. Durant, 2019 ONCA 74, 144 O.R. (3d) 465, at para. 146.

[48] The threshold for discharging a juror based on a reasonable apprehension of bias is high: Dowholis, at para. 19. As Watt J.A. explained in Durant, at para. 150, the test is viewed from the perspective of a reasonable person:

The apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining the required information about it. The grounds for the apprehension must be substantial. The test is what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. [Citations omitted.]

[49] On appeal, the trial judge’s decision not to excuse a juror on the basis of alleged bias is owed substantial deference and is only to be set aside if it was tainted by an error of law or principle, there is a misapprehension of material evidence or if it is a decision that is plainly unreasonable: Durant, at para. 152.

[50] In this case, the trial judge found the information that the appellant brought to his attention about Juror #2’s writing and work experience was not an adequate basis to justify further inquiries into her capacity to act as an impartial trier of fact.

[51] His conclusion on this issue was consistent with decisions of the Supreme Court and this court, which have held that an individual’s prior personal experience or work in the area of sexual violence does not, on its own, render that person incapable of deciding a sexual assault case impartially: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at paras. 98-100; R. v. A.B. (Betker) (1997), 33 O.R. (3d) 321 (C.A.), at p. 342, leave to appeal refused, [1997] S.C.C.A. No. 461. See also R. v. Poon, 2012 SKCA 76, 399 Sask. R. 89, at para. 16.

[52] In this case, Juror #2 worked in the area of sexual violence against women about 20 years before this jury selection. In the absence of any other evidence that could potentially give rise to a reasonable apprehension of bias, there was no reason for the trial judge to discharge Juror #2. As the Crown submits, there was no basis for finding that Juror #2 would disregard her affirmation to uphold the law or the presumption that she would follow the trial judge’s instructions.

(4) Application of the s. 686(1)(b)(iv) proviso

[53] Given that I would reject the arguments made regarding Jurors #12 and #2, the remaining question on the issue of jury selection is whether the proviso in s. 686(1)(b)(iv) of the Criminal Code should be applied to cure the error made by the trial judge in relation to the allocation of peremptory challenges.

[54] Section 686(1)(b)(iv) provides that an appellate court may dismiss an appeal where the court below made a procedural error, as long as the court had jurisdiction over the offence and the error did not cause prejudice to the appellant.

[55] In R. v. Esseghaier, 2021 SCC 9, [2021] 1 S.C.R. 101, at para. 10, the Supreme Court held that s. 686(1)(b)(iv) can be used to cure procedural errors in the jury selection process. Once an error has been identified, the Crown must prove a lack of prejudice on a balance of probabilities: R. v. Tayo Tompouba, 2024 SCC 16, 491 D.L.R. (4th) 195, at paras. 82, 112; R. v. Azzi, 2022 ONCA 366, 162 O.R. (3d) 592, at para. 37.

[56] In this case, we are dealing with a procedural error. As reviewed above, at the time of the trial, the Criminal Code required that a peremptory challenge be added for each alternate juror to the total number of peremptory challenges available to the appellant. The trial judge erred in failing to follow this process when he allowed 12 peremptory challenges for the selection of the 12 jurors and 2 additional challenges for the 2 alternate jurors. This was an error in following the procedure set out in the Criminal Code for selecting a jury at that time.

[57] The next issue is whether the trial court had jurisdiction over the class of offences at issue. In Esseghaier, at paras. 47-48, the Supreme Court confirmed that jurisdiction in s. 686(1)(b)(iv) refers to whether the trial court had the capacity to deal with the subject matter of the charges. In this case, there is no dispute that the Superior Court had jurisdiction over the charges.

[58] The final issue is whether the appellant has suffered any prejudice. Prejudice in s. 686(1)(b)(iv) refers not only to actual prejudice, “but also to prejudice in the broader sense of prejudice to the appearance of the due administration of justice”: R. v. McDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494, at para. 52. In Esseghaier, at para. 54, the Supreme Court explained:

[I]n the context of applying s. 686(1)(b)(iv) to a procedural error in jury selection, the prejudice inquiry is focused solely upon the risk of depriving accused persons of their right, under s. 11(d) of the Charter, to a fair trial by an independent and impartial jury. Where the appellant is able to show that a procedural error led to an improperly constituted jury, the onus shifts to the Crown to show, on a balance of probabilities, that the appellant was not deprived of their right to a fair trial by an independent and impartial jury and, consequently, suffered no prejudice. [Emphasis added.]

[59] In this case, the effect of the trial judge’s error was that the appellant was not able to use a peremptory challenge to exclude Juror #11. The issue, therefore, is whether the Crown has established that the appellant’s right under s. 11(d) of the Charter of Rights and Freedoms to a fair trial by an independent and impartial jury was respected despite Juror #11 being on the jury. This inquiry does not focus on whether the appellant got the jury he wanted, but rather whether he got an independent or impartial jury: Esseghaier, at para. 57; Find, at para. 28; and Sampson v. R., 2022 NBCA 24, [2022] N.B.J. No. 141, at paras. 20-21. The question at this stage is whether Juror #11’s participation in the appellant’s trial gave rise to a reasonable apprehension of bias: Chouhan, at para. 31.

[60] In my view, the Crown has shown that the appellant’s right to a fair trial was respected. As reviewed above, jurors are presumed to approach their duties impartially and in accordance with the trial judge’s directions. In this case, Juror #11 explained that his work and personal life placed him in contact with girls who had been the victims of sexual violence. Nonetheless, he stated that he was able and willing to serve as juror. This situation was different from the circumstances surrounding Juror #12, who explicitly stated that he would be predisposed to believe a complainant who came forward with allegations of sexual violence.

[61] Further, as explained above, the courts have rejected the view that people’s prior experience dealing with victims of sexual violence on its own can give rise to a reasonable apprehension of bias. In this case, while Juror #11 disclosed this background because he wanted to ensure the court was aware of it, he confirmed his willingness and ability to serve on the jury. The triers accepted him. No one challenged his ability to serve based on bias at the trial. He took an oath and is thereby presumed to have complied with his obligation to follow the trial judge’s instructions. In all these circumstances, I am satisfied that the trial judge’s error in withholding two peremptory challenges until the selection of alternate jurors did not deprive the appellant of a fair trial by an independent and impartial jury. As such, the curative proviso in s. 686(1)(b)(iv) of the Criminal Code should apply to rectify the error.

[62] I would therefore dismiss the grounds of appeal that arise from the jury selection process.

E. Response to jury question

[63] Amicus submits that the trial judge’s answer to a jury question created trial unfairness. I disagree.

[64] After the appellant completed his opening statement, Juror #7 submitted the following written question to the trial judge:

Your Honour, in the defence opening statement, you instructed him to outline his defence and identify how many witnesses he would call. He never did this. I am asking if this was merely a suggestion or if procedurally, he was required to do this?

[65] After consulting with the appellant and counsel, the trial judge read the question to the jury and responded:

The short answer is, it was more of a suggestion. But we have spent some time, and you’ll recall, when we were empanelling the jury, I would have read a list of names of potential witnesses so that anyone who was acquainted with any of those individuals could identify that or inquire about that.

[66] The trial judge went on to explain to the jury that the appellant, counsel and the court had just reviewed the list of witnesses to determine the trial schedule.

[67] Amicus points out that, while the trial judge told the appellant that he should explain his theory of the case during his opening submissions, the judge never suggested that the appellant should provide his list of witnesses. On this basis, amicus submits that Juror #7’s question was based on an inaccurate statement about what the trial judge told the appellant to do during his opening submissions and that the trial judge should have pointed out this inaccuracy to the jury. Instead, his response to the question created the impression that the appellant had failed to do so something that he was in fact not obligated to do. Amicus says this created trial unfairness.

[68] I disagree. There was in fact a discussion in the absence of the jury about how the trial judge should respond to the question. Nobody objected to the trial judge’s response. Moreover, in his response, the trial judge pointed out that he had already read the list of potential witnesses to the jury. While his response may not have been entirely accurate insofar as he seemed to agree that he suggested the appellant should provide his list of witnesses during his opening statement, the response nevertheless confirmed that the appellant did not fail to meet an obligation. There is no basis for finding that this response created any trial unfairness or could somehow have prejudiced the jury.

F. Loss of juror’s notes

[69] Amicus submits that the trial judge erred in how he dealt with the loss of Juror #4’s notes.

[70] During the trial, before the complainant testified, the trial judge advised the appellant and counsel that Juror #4’s binder of notes had gone missing. At amicus’s suggestion, the trial judge asked Juror #4 whether the loss of his notes would impact his ability to adjudicate the case. Juror #4 responded in writing that the loss of his notes would not affect “[his] ability to assess the facts of the case.” When providing Juror #4’s response to the appellant and counsel, the trial judge also indicated that he had made inquiries from court staff about how the notes had gone missing, but that it was a “mystery” as to what had happened. At the appellant’s request, the trial judge agreed to make further inquiries, but the notes were never found and an explanation for their disappearance was never ascertained.

[71] Amicus submits that the inquiries regarding what happened to the notes should not have been conducted in the appellant’s absence; this was contrary to s. 650(1) of the Criminal Code. Amicus further submits that the inability to ascertain what happened to the notes created trial unfairness.

[72] I would not give effect to this ground of appeal.

[73] There was no violation of the appellant’s right to be present at his trial. The discussions that occurred with court staff did not involve or affect the vital interests of the appellant or bear on the substantive conduct of the trial: R. v. Hassanzada, 2016 ONCA 284, 130 O.R. (3d) 81, at para. 128; R. v. Chambers, [1990] 2 S.C.R. 1293, at pp. 1303-1307.

[74] In addition, there was no evidence that the disappearance of the notes caused any unfairness to the appellant. Juror #4 was asked and confirmed that he could decide the case without his notes. There was also no evidence that, as suggested by amicus, Juror #4 or any other jury member acted improperly.

[75] In the circumstances, I would not give effect to this ground of appeal.

G. Closing submissions

[76] Amicus submits that the trial judge erred in his handling of the Crown’s closing submissions. Amicus suggests that this error was exacerbated by the number of interventions the trial judge made during the appellant’s closing submissions.

[77] Amicus points to two aspects of the Crown’s closing submissions in support of this ground of appeal. [2]

[78] First, amicus says that the beginning of the Crown’s closing submissions was unduly inflammatory. The Crown started his submissions as follows:

Ladies and gentlemen of the jury, at the risk of telling you something that you may already understand very well, sexual violence is a crime of power, control and domination. It is rarely, if ever, about sex, itself. From the victim’s perspective, it is not only a violation of her body, but it’s also an attack on her right to human dignity, her security of the person, and ultimately a loss of self. Rape is the vilest form of sexual assault, and those who wield the weapon of rape, cause perhaps the greatest destruction of another’s sense of self, inflicting, arguably, more damage to their victims than any other form of sexual violence. Rape is about humiliation, destruction of dignity, devastation of soul. It is about power and control over the vulnerable. It is the act of complete domination of the other’s body, of the other’s person.

[79] Second, amicus submits that the Crown improperly referred to the complainant’s evidence regarding the impact the incident had on her. At trial, the complainant explained that the sexual assault had impacted her view of the world and her attitude toward relationships between men and women. She also said that she doubted herself and wondered if this had happened because of something she did wrong. The Crown repeated this evidence during his closing statement.

[80] Amicus acknowledges that the trial judge gave the following corrective instruction with respect to these two impugned aspects of the Crown’s closing submissions, but argues that the instruction was inadequate:

I do want to bring to your attention that the Crown Attorney’s initial comments he made, something about the nature of the crime of sexual assault, and with regard to the loss of self and crime of control and domination, particularly about the destruction or devastation of one’s soul. It’s not relevant to your consideration and you – to your deliberations – and you should disregard it. He also linked it later, to [the complainant]’s evidence about how the events as described by her affected her. I ask you to, I’m going to ask you to disregard those comments in weighing the evidence of how [the complainant] reacted to the events. Again, this is not relevant and should not be considered as part of your deliberations.

[81] I disagree with amicus’s position regarding the trial judge’s handling of closing submissions. While, as conceded by the respondent on appeal, both aspects of the Crown’s closing were improper, the corrective instruction was adequate.

[82] Timely and focused corrective instructions are usually sufficient to remedy improper comments in Crown closings: R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at paras. 124, 135 and 143; R. v. Rose, [1998] 3 S.C.R. 262, at p. 266. When a trial judge gives a corrective instruction, this court “must acknowledge the ability of jurors to understand and follow these instructions” and “should intervene only if the trial judge exercised this well-established remedial discretion unreasonably or acted on a wrong principle”: Chacon-Perez, at para. 126. Here, the corrective instruction came right after the Crown’s closing and was therefore timely. It was also specific, directly addressed the improprieties in the Crown’s closing and made clear that the jury was to disregard entirely the problematic parts of the Crown’s submissions: Chacon-Perez, at para. 144; R. v. Clyke, 2021 ONCA 810, 158 O.R. (3d) 641, at paras. 40-41 and 106; and R. v. Howley, 2021 ONCA 386, at para. 49.

[83] Additionally, I see nothing improper in the trial judge’s interventions during the appellant’s closing. When evaluating interventions by a trial judge, the fundamental issue is whether the interventions led to an unfair trial: R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at paras. 29-30, leave to appeal refused, [2011] S.C.C.A. No. 547 (Hamilton), [2012] S.C.C.A. No. 46 (Reid), [2012] S.C.C.A. No. 151 (Schloss), and [2012] S.C.C.A. No. 166 (Davis). In this case, the trial judge generally reminded the appellant on several occasions to “stick to the evidence”. This was necessary and appropriate in the circumstances.

[84] There was also no imbalance in how the trial judge treated the appellant’s closing as compared to the Crown’s closing. By providing the corrective instruction, the trial judge was pointing out that some aspects of the Crown’s closing were improper, which would not have left the jury with an impression that the trial judge was favouring the Crown.

H. Jury instruction regarding post-offence conduct

[85] Amicus raised an issue in their factum regarding the need for instructions on post-offence conduct but did not pursue it in oral argument. This issue arose from the appellant’s attempts to obtain video footage from Shoppers Drug Mart, conduct by the appellant that amicus says the jury should have been told was proof of his innocence. I agree with the Crown’s submission that this issue has no merit. The trial judge adverted to this evidence in his instruction. There was no requirement that he go so far as to say that this evidence showed proof of innocence, especially since the video was not part of the evidence presented to the jury.

I. Jury instruction regarding consent

[86] The final issue raised by amicus is that the trial judge erred in his instruction to the jury with respect to consent and mistaken belief in consent. Again, amicus did not pursue this argument during oral submissions.

[87] I agree with the Crown’s submission that that there is no merit to this argument. The trial judge’s instruction on the issue of consent was sufficient for the jury to understand and apply the law to the evidence in this case: R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at paras. 21-22 and 25.

J. Additional issues raised by the appellant

[88] Besides the issues raised by amicus, the appellant raises numerous additional issues on appeal. It is not necessary to address each of these. For the most part, they are an attempt to present his version of what occurred with the complainant or to impugn the conduct of amicus at trial. It is not the role of this court to decide the case afresh, but rather to assess whether the trial judge made any errors in the conduct of the trial. In addition, as noted above, the appellant is precluded from raising any issues regarding the alleged ineffective assistance of counsel.

[89] However, for the sake of completeness, I address a few specific issues raised by the appellant.

[90] First, the appellant argues that the trial judge unfairly precluded him from calling evidence to show that the police tampered with or lost surveillance evidence obtained from Shoppers Drug Mart. As the Crown points out, the trial judge gave the appellant an opportunity to summons an employee from Shoppers Drug Mart to speak to this issue. However, the appellant did not take steps to call the employee as a witness until midway through the trial, at which point he did not follow the procedure required to summons the employee. In any event, there was no evidentiary foundation for the appellant’s theory that the police tampered with the video surveillance. Moreover, as mentioned above, the video surveillance in the police’s possession was not presented to the jury or put in evidence during the trial and, therefore, there was no need to counter such evidence with evidence of tampering.

[91] Second, the appellant submitted that the police tampered with the DNA evidence obtained from the complainant’s sexual assault examination. The appellant did not identify what evidence the trial judge prevented him from calling on this issue, and the record does not establish any evidentiary foundation for this contention.

[92] Third, the appellant argues that the trial judge improperly precluded him from calling the evidence of Qian Shang, one of his former tenants. At the preliminary inquiry, Mr. Shang corroborated the appellant’s evidence that the complainant returned to the rental unit after she moved out. Mr. Shang was in China at the time of the trial and his evidence would have had to be presented by videoconference. The trial judge precluded the appellant from calling Mr. Shang by videoconference to testify because the appellant failed to provide sufficient notice in accordance with s. 714.2(2) of the Criminal Code. The trial judge nevertheless allowed Mr. Shang’s evidence from the preliminary inquiry to be read to the jury. I see no reversible error in the trial judge’s approach to this issue. Mr. Shang’s evidence had minimal evidentiary value and, in any event, the jury had the benefit of his evidence from the preliminary inquiry.

[93] Fourth, the appellant argues that the trial judge failed to emphasize in his charge to the jury that the complainant was being untruthful when she told the appellant that she was poor as her explanation for asking the appellant for a laptop. The appellant says that the trial judge thereby failed to tell the jury that the complainant was a “liar”. It is up to the jury, and not the trial judge, to make credibility assessments: Mezzo v. R., [1986] 1 S.C.R. 802, at pp. 844-45; R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at paras. 208-209. In his jury charge, the trial judge made it clear that the complainant had acknowledged in her testimony that the reason she asked for a laptop was as compensation for the sexual assault and not because she was poor. In addition, the jury charge is to be read in the context of the closing submissions: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58. In this case, the closing address made by the appellant also highlighted this inconsistency in the complainant’s evidence.

[94] Finally, the appellant submits that the trial judge erred in not allowing the jury to hear the complainant’s 911 call. In making this submission, the appellant focuses on the fact that the complainant allegedly laughed during the call. In his view, her demeanour on the call undermined the credibility of her assertion that the appellant sexually assaulted her. I see no error in the trial judge’s determination that the 911 call was not relevant. As the trial judge explained to the appellant, it was necessary for the appellant to lay down an evidentiary foundation before admitting the 911 call. The appellant never did this. Moreover, a complainant’s post-incident recounting of the incident or conduct is typically not probative of their credibility given that victims react in different ways to sexual assault: see e.g., R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 121; R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114, at para. 45; and R. v. Varghese, 2024 ONCA 555, at paras. 35, 38.

K. Disposition

[95] I would dismiss the appeal.

Released: September 6, 2024 “C.W.H.” “L. Favreau J.A.” “I agree. C.W. Hourigan J.A.” “I agree. Thorburn J.A.”

[1] The challenge for cause question in this case referred to the appellant’s Chinese ethnicity.

[2] While amicus’s factum addressed a third aspect of the closing – reliance on stereotypical reasoning – amicus abandoned this argument at the hearing.