Regina v. F.S. [Indexed as: R. v. S. (F.)]

47 O.R. (3d) 349

[2000] O.J. No. 473

No. C27349

Ontario Court of Appeal

Labrosse, Weiler and Charron JJ.A.

February 25, 2000

Criminal law -- Crown -- Conduct at trial -- Accused charged with sexual offences against his stepdaughter -- Crown counsel referring to complainant as "our victim" in opening address to jury -- Cross-examination of accused flippant and insulting -- Crown improperly personalizing role -- Crown telling jury his role was to obtain conviction -- Crown's closing misstating accused's evidence in very prejudicial manner -- Trial judge exacerbating unfairness by repeating inaccurate version of accused's evidence -- Crown improperly making reference to decision of Supreme Court of Canada -- Crown's conduct depriving accused of fair trial -- Accused's appeal against conviction allowed and new trial ordered.

The accused was charged with sexual offences involving his stepdaughter. In his opening address to the jury, Crown counsel twice referred to the complainant as "notre victime". In his closing address, he stated that his job was to obtain a conviction and ensure that justice was done for the complainant. He told the jury that he was an honest and just person and stated that if the jury was not convinced of the accused's guilt it was because he had failed to do his job successfully. He added the comment that "[TRANSLATION] we would have to live with the sad result if the accused were not convicted". The accused was convicted. He appealed.

Held, the appeal should be allowed.

It has frequently been stated that the purpose of a criminal prosecution is not to obtain a conviction and that the role of the prosecutor excludes any notion of winning and losing. His duty is to assist the judge and jury in ensuring that the fullest possible justice is done. He must conduct himself with moderation and impartiality. These guidelines were breached by the Crown counsel in this case. He improperly personalized his role in the case. His sarcasm and disrespect towards the accused were inappropriate. He injected his own credibility and belief into the case. His stated goal was to obtain a conviction and justice for the complainant. His conduct was anything but moderate and impartial. Viewed in its totality, and with regard to the obligation on Crown counsel to act in a scrupulously fair manner, the conduct of Crown counsel crossed over the line and was improper and unfair. The cumulative effect of the improprieties resulted in serious prejudice to the accused.

In his closing address, Crown counsel also seriously misstated the accused's evidence in a manner which improperly attacked his credibility. The prejudice from the improper misrepresentation of the accused's evidence did not stop with what was said by Crown counsel to the jury. The trial judge endorsed Crown counsel's misstatement of the evidence. Despite telling the accused that he did not have to provide an explanation as to why the complainant made up the allegation of sexual abuse, Crown counsel invited the accused to provide one and then ridiculed the explanation. Also, Crown counsel inquired of the accused whether the complainant was a known liar. This specific type of cross-examination has repeatedly been held to be improper.

During his closing address to the jury, Crown counsel read an excerpt from a Supreme Court of Canada decision dealing with the non-reporting, incomplete reporting and delay in reporting cases of sexual abuse. He misrepresented the passage he was purporting to quote by omitting the references made therein by the court that the relevant opinion was attributed to a report and not to the court directly. It was improper for counsel to read the passage he did. Counsel in a jury trial is generally not permitted to quote from case reports. In reading the passage in question, Crown counsel was, in effect, relating evidence when there had been none on the issue of non-reporting or incomplete reporting by the complainant. His reference to the Supreme Court of Canada was an attempt to influence the jury in its finding of fact on this issue. Moreover, the jury was never instructed by the trial judge on the issue, thus leaving the jury with the impression that the Crown's remarks were proper.

APPEAL by the accused from a conviction for sexual offences.

R. v. Boucher, 1954 3 (SCC), [1955] S.C.R. 16, 110 C.C.C. 263, 10 C.R. 1; R. v. Henderson (1999), 1999 2358 (ON CA), 44 O.R. (3d) 628, 134 C.C.C. (3d) 131 (C.A.), apld Other cases referred to Pianosi v. C.N.R., 1943 334 (ON CA), [1943] O.W.N. 766, [1944] 1 D.L.R. 161 (C.A.); R. v. Cashin (1981), 1981 3229 (NS CA), 49 N.S.R. (2d) 653, 96 A.P.R. 653, 65 C.C.C. (2d) 56 (C.A.); R. v. F. (A.) (1996), 1996 10222 (ON CA), 30 O.R. (3d) 470, 1 C.R. (5th) 382 (C.A.); R. v. I. (R.R.), 1996 155 (SCC), [1996] 3 S.C.R. 1124, 204 N.R. 371, 112 C.C.C. (3d) 367, 3 C.R. (5th) 136, affg (1995), 112 C.C.C. (3d) 367 (B.C.C.A.); R. v. L. (W.K.), 1991 54 (SCC), [1991] 1 S.C.R. 1091, 124 N.R. 146, [1991] 4 W.W.R. 385, 4 C.R.R. (2d) 298, 64 C.C.C. (3d) 321, 6 C.R. (4th) 1; R. v. M. (T.E.) (1996), 1996 ABCA 312, 110 C.C.C. (3d) 179 (Alta. C.A.) [leave to appeal to S.C.C. refused (1997), 216 N.R. 240n]; R. v. R. (A.J.) (1994), 1994 3447 (ON CA), 20 O.R. (3d) 405, 94 C.C.C. (3d) 168 (C.A.)

John H. Hale, for appellant. Trevor Shaw, for respondent.

The judgment of the court was delivered by

[1] LABROSSE J.A.: -- The appellant was convicted by a court composed of a judge and jury of numerous sexual offences against his stepdaughter. He was sentenced to five years' imprisonment plus three years' probation. He appeals his conviction, as well as the probation portion of his sentence. It is agreed that the period of probation was an illegal part of the sentence.

[2] This was a bilingual case. The trial judge's opening remarks, the opening and closing addresses of both counsel, and the trial judge's charge to the jury were all given in the French language. All witnesses testified in English. The appeal was argued in English and all references to the transcript were in that language, as recorded. I will adopt the same format that was used on the appeal.

The Facts

[3] At the time of the trial in January 1997, the complainant was 14 and one-half years of age. She had been between eight and 12 years of age when the offences covered in the indictment occurred (1990-1994). The complainant testified to numerous incidents of abuse, including kissing, touching, oral sex, as well as vaginal and anal penetration. She had no recollection of any specific date, nor any recollection of her mother's or brother's (the appellant's stepson) whereabouts when the abuse was taking place.

[4] The appellant was 30 years of age at the time of the trial and between 24 and 28 years old at the time of the alleged offences. He had cohabited with the complainant's mother and her children for approximately 12 years, including seven years of marriage. He denied any incident of sexual abuse. His position was that the complainant's testimony was all an act. It was part of his defence that because of his work he was rarely at home and had little, if any, opportunity to commit the alleged offences.

[5] The appellant's wife and his stepson were called as witnesses by the defence. At the time of the trial, the appellant and his wife had been separated since January 1996 and the 16 year old stepson, who was two years older than the complainant, was living with the appellant. The wife and the stepson testified that they never witnessed any sexual improprieties or unusual behaviour.

[6] The complainant was the only witness for the Crown. In her original statement to the police on April 28, 1995, the complainant mentioned only the appellant's bedroom as the location of the sexual abuse. On May 12, 1995, the complainant was examined by a gynecologist. A letter from the doctor, dated the same date, was filed by the defence on consent. It states, "I did not ask her to repeat the details of her disclosure. The allegation was of sexual touching of her genitals by fingers. She was uncertain whether there had been any penetration." The examination results neither supported nor refuted the allegations of sexual abuse.

[7] On May 20, 1995, the complainant told a Children's Aid Society social worker that she had lied about the allegations of penetration. She also told her mother she had lied about penetration. She later maintained that the allegations of penetration were true.

[8] At trial, she testified to incidents of sexual abuse in (1) the appellant's bedroom, (2) her bedroom, (3) the hallway, (4) the bathroom, and (5) the living room of their home. The latter four locations were not mentioned in her original statement. She stated that she had forgotten these four locations and only remembered them in January 1996, some ten months after her original statement, when in preparation for the preliminary hearing, Crown counsel led her through the house, room by room, asking her in each room if anything had happened. This unusual procedure by Crown counsel apparently triggered her memory: in her words, "it just click [sic]". She testified it was "weird" that she remembered these other locations. She could not remember any specific date of incidents of abuse and could not remember where her mother or brother had been when the abuse was taking place. There was no expert evidence adduced on memory recollection or delayed reporting of sexual abuse.

The Issues

[9] With respect to the conviction appeal, the appellant raises four issues:

1. the conduct of Crown counsel at trial;

2. the improper attack on the appellant's credibility;

3. the inappropriate and prejudicial reference, during closing address, to an excerpt of a Supreme Court of Canada decision; and

4. the impression left with the jury that the complainant's sincerity could be equated with reliability.

1. The conduct of Crown counsel at trial

[10] This is the main ground of appeal and, in my view, Crown counsel's conduct seriously prejudiced the appellant.

[11] In R. v. Henderson (1999), 1999 2358 (ON CA), 44 O.R. (3d) 628, 134 C.C.C. (3d) 131 (C.A.), this court recently reviewed the role of Crown counsel during a trial. It is appropriate to quote again what I said at pp. 638-39, speaking for a five-member panel:

The classic articulation of Crown counsel's role was set out in R. v. Boucher, 1954 3 (SCC), [1955] S.C.R. 16 at pp. 23-24, 110 C.C.C. 263 at p. 270, where Rand J. stated:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

In Boucher, Taschereau J. added the following comments which were cited with approval by Lamer C.J.C. in R. v. Swietlinski, 1994 71 (SCC), [1994] 3 S.C.R. 481 at pp. 494-95, 92 C.C.C. (3d) 449:

[TRANSLATION] The position held by counsel for the Crown is not that of a lawyer in civil litigation. His functions are quasi-judicial. His duty is not so much to obtain a conviction as to assist the judge and jury in ensuring that the fullest possible justice is done. His conduct before the Court must always be characterized by moderation and impartiality. He will have properly performed his duty and will be beyond all reproach if, eschewing any appeal to passion, and employing a dignified manner suited to his function, he presents the evidence to the jury without going beyond what it discloses.

Generally, Crown counsel perform all aspects of their functions honourably and fairly, and in most cases the respectable conduct of Crown counsel undoubtedly enhances public confidence in the criminal justice system. To this extent, I note the comments made by Cory J. in R. v. Bain, 1992 111 (SCC), [1992] 1 S.C.R. 91, 69 C.C.C. (3d) 481, where he states [at pp. 101-02]: "As a rule the conduct and competence of Crown Attorneys is exemplary. They are models for the Bar and the community." The efforts of Crown counsel are particularly admirable given their significant case loads and considerable resource restrictions.

[12] I have emphasized the words in the quote from R. v. Boucher, 1954 3 (SCC), [1955] S.C.R. 16, 110 C.C.C. 263 which are specifically applicable in this appeal. In the present case, these defining guidelines have all been breached by Crown counsel.

[13] First, he personalized his role in the case. From the outset of his opening address, Crown counsel told the jury:

-- ". . . je dois . . . tenter de vous convaincre que l'accusé est bel et bien coupable."

-- "Mon but, c'est pas une cachette, est de vous convaincre qu'il est coupable."

-- "En plaidant non-coupable, [the appellant] pose le fardeau sur la Couronne, sur mes épaules, de vous convaincre qu'il est coupable. Et puis c'est exactement ce que j'ai l'intention de faire pendant les trois prochaines journées. Je suis confiant à titre de Couronne que lorsque vous aurez à l'esprit -- lorsque vous aurez connaissance de ce que moi je connais du dossier, que vous allez me joindre dans la conclusion qu'il n'y a aucun doute que [the complainant] a été abusée sexuellement pendant trois à quatre ans par son père par alliance."

(Emphasis added)

[14] His admitted role was to obtain a conviction. The onus was on his shoulders to inform the jury of what he knew so that the jury could join him in his conclusion that the accused was guilty. In addressing the jury, he twice referred to the complainant as "notre victime", as if she were his client and inferring there was some bond between the jury and himself against the accused.

[15] Second, the involvement of his person became even more obvious in his closing address to the jury:

Durant les deux dernières journées, je vous ai démontré ce que je connaissais de cette affaire. Vous savez maintenant ce que je savais au point de départ. Ce que le policier savait au point de départ. Je suppose que si vous êtes pas convaincus à ce stade ici, après tout ce que vous avez vu et tout ce que vous avez entendu, alors je doute fort que j'ai la capacité, que j'ai les habilités, soit comme orateur ou comme personne qui peut argumenter comme avocat, je doute fort que j'aurais la capacité de vous convaincre autrement.

Si vous arrivez à la conclusion que moi comme avocat de la Couronne j'ai failli dans ma tÔche de vous convaincre de sa coupabilité, alors nous devons, je suppose, vivre avec ce triste résultat.

J'espère que vous allez nous quitter avec l'impression que le bureau de la Couronne, que moi comme avocat de la Couronne, que je suis juste, que je suis honnÛte, que je suis sincère, diligent mais aussi vigoureux dans la poursuite de la justice. [Counsel for the appellant] a qualifié mon interrogatoire de dur, d'agressif. Mon seul but est de m'assurer que la justice soit atteinte pour [the complainant].

C'est vrai que j'ai été agressif avec [the appellant]. C'est peut-être mon caractère comme avocat. Et puis si je vous ai offensé, je m'excuse. Mon seul but comme je vous indiquais était, du moins je l'espère, que la justice soit atteinte.

Moi je vous suggère que a prend de l'audace, du culot de la part de [the appellant] pour vous suggérer que ce que l'on a vu lorsque [the complainant] a témoigné était du théatre ou un acte. . . . Moi, je ne prétends pas être une personne des plus brillantes mais il semble évident que [the complainant] souffrait, qu'elle avait mal lorsqu'elle recontait ce que lui a fait subir son père pendant plusieurs années.

. . . moi, je suis convaincu que c'est [the complainant] qui a tout perdu dans cette histoire.

(Emphasis added)

[16] Crown counsel's stated mission was to obtain a conviction and ensure that justice was done for the complainant. He told the jury he was an honest and just person and expressed that if the jury was not convinced of the appellant's guilt it was because he had failed to successfully do his job. He then added the shocking comment that we ("nous"), he and the jury, would have to live with this sad result. He seemed to have felt the need to ask the jury to excuse his conduct toward the appellant.

[17] Third, Crown counsel was inappropriately sarcastic, flippant and disrespectful towards the appellant. When the appellant answered during his cross-examination that he was living with his stepson and his dog, Crown counsel retorted:

Q. I assume your dog is not going to testify?

When the appellant agreed that his stepson knew why the appellant was in court, the next question from Crown counsel was:

Q. He knows that you're not charged with shoplifting, right?

And when Crown counsel sought to find out when the appellant ceased living with his wife, the following exchange took place:

Q. Okay. When did you stop living with [your wife], sir?

A. 28th of April '95, when I was charged. I was -- they put me in jail for three days . . .

Q. Okay.

A. . . . until four o'clock and I came out on Monday . . .

Q. I'm touched, sir, but that's not my question. My question is: when did you stop living with [your wife]?

A. 28th of April, '95.

Finally, in his last words to the jury in his closing address, Crown counsel pleaded with the jury to recognize the appellant's guilt as follows:

Et puis je vous prie de reconnaitre cette personne-la coupable de chacune des infractions qui ont été déposées contre lui.

[18] As stated earlier, Crown counsel breached every aspect of the classic articulation of the role of Crown counsel referred to in R. v. Boucher. He took this case very personally. He injected his own credibility and belief into the case. His stated goal was to obtain a conviction and justice for the complainant. If the appellant were acquitted by the jury, he would have failed. His conduct was anything but moderate and impartial.

[19] In the present case, as I said in Henderson, Crown counsel's conduct, viewed in its totality and with regard to the obligation on Crown counsel to act in a scrupulously fair manner, crossed over the line and must be characterized as improper and unfair. The cumulative effect of the improprieties resulted in serious prejudice.

[20] There is some overlap between this ground of appeal and the second issue raised in the appeal, to which I now turn.

2. The improper attack on the appellant's credibility

[21] The appellant's defence was, in part, that for various reasons he did not have the opportunity to commit the alleged offences. At issue was whether he had opportunity to be alone with the complainant. His cross-examination, in this regard, went as follows:

Q. Were you ever alone with [the complainant], sir?

A. Like every father, yes.

Q. Okay. And you would have been alone when she was what? Eight, obviously?

A. It could have happened, yes.

Q. Yes. And you agree with me that you would be alone with her in the home at Limoges, right?

A. No -- none, never. [My stepson] was always there.

Q. So, you were never, never, never, never alone with [the complainant]?

A. No.

Q. And you can tell us, sir, that not once were you alone with this child?

A. No . . . I don't recall. Where [the complainant] goes, [my stepson] -- 95 -- every time [my stepson] was there.

[22] As indicated in this exchange, the appellant stated that he, like every father, had been alone with the complainant. Next, he is asked if he was specifically ever alone with her in their family house. (All the incidents are alleged to have taken place in this house.) He answers that he was never alone with her in the house because his stepson would also have been in the house. (At no time did the complainant suggest, in her evidence, that her brother was not in the house when the incidents took place.) The cross-examination continued:

Q. . . . Were you ever alone with [the complainant] in her bedroom, sir?

A. No.

Q. I just want to make sure I understand. You were acting as a father for this child, right?

A. Yeah.

Q. And you were never alone in her bedroom?

A. Like come on. I walked through to go to my bedroom. What do you think?

Q. What do you mean, "what do you think"?

A. I tucked her in once in a while. That's normal. Like every father.

Q. So, you would have tucked her in, right?

A. With [my wife] too.

Q. No, no. Were you alone in her bedroom, sir? Yes or no?

A. I guess you could say, yes.

Q. So you were never alone with [the complainant] in the house, you told us that. Your stepson was always there, right?

A. That's right.

Q. And you were never alone with her in her bedroom except to tuck her in?

A. Yeah, if I'm there and there [sic] time to go to bed, I would tuck [my stepson] or [the complainant] -- and [the complainant]. And [my wife] was there too because most of the time we go to bed at the same time, nine o'clock, if I'm there.

Q. Have you ever been alone with [the complainant] in any other place, sir?

A. It's like a father, like you're alone sometime. That's normal.

Q. Yes, well, that's my point, sir. But you're telling us that you've never been alone with [the complainant]?

A. Like -- like a father you -- you are alone sometime.

Q. Yes. And you'd be alone in the home with [the complainant], right?

A. Usually [my stepson] is all the time there.

[23] In his closing address to the jury, Crown counsel incorrectly summarized the preceding exchange as follows:

Pour un père de famille de dire qu'il n'a jamais été seul avec sa jeune fille est tout simplement insultant et puis déraisonable. Cette jeune fille aurait demeuré avec lui pendant plusieurs, plusieurs années. Et pourtant, il n'aurait jamais été seul avec elle. Et puis c'est ce qu'il nous dit. Pensez-y! J'ai deux enfants à la maison moi-même. Je suis de faon quotidienne, journalière, seul avec au moins un de mes enfants. Il était à toute fin pratique le père de [the complainant]. Si vous êtes prets à accepter sa prétention qu'il n'a jamais été seul avec sa fille ou que a soulève un doute raisonable, et puis a pendant toutes ces années-là, pas une fois seul avec [the complainant], pas dans sa chambre, pas dans le salon, nulle part. Si vous êtes prets à accepter ceci et puis ne pas voir qu'il s'agit clairement d'une tentative de sa part de vous duper, de vous tromper, en vous disant: j'suis pas coupable,

j'ai jamais été seul avec elle. Alors, je crois que je perds mon temps. On ferme nos livres et puis on devrait aller chacun chez nous. C'est fini. Lorsqu'un témoin vous fait une proposition; lorsqu'il vous propose quelque chose qui est tellement insensé et puis déraisonable, a devrait affecter sa crédibilité.

(Emphasis added)

[24] In this passage, Crown counsel repeats on five occasions that the appellant had said that he was never alone with the complainant. This is not the type of characterization of evidence expected from a fair and impartial Crown counsel even when dealing with a witness who could be said to be evasive. In fact, it was a serious misstatement of the appellant's evidence. Moreover, it is inflammatory, disrespectful and sarcastic.

[25] A review of the transcript on the issue of whether the appellant was alone with the complainant in the house shows that he answered in the affirmative or acknowledged that he was alone with her ten times and answered in the negative nine times.

[26] Unfortunately, the prejudice from the improper misrepresentation of the appellant's evidence does not stop with what was said by Crown counsel to the jury. It was commented upon by the trial judge in a manner which exacerbated the prejudice.

[27] At the beginning of his charge to the jury, the trial judge indicated to the jury the various parts that he would cover. He told the members of the jury that in the last part of his charge, just before instructing them on the possible verdicts, he would comment on the evidence. While he reviewed, in some detail (it covers four pages of transcript), the evidence of the complainant, the only reference made to the appellant's evidence is as follows:

Je trouve a difficile à accepter que [the appellant] ne s'est jamais retrouvé seul dans une pièce de la maison avec sa fille malgré son travail et ses - malgré son travail et ses emplois. Je comprends qu'il travaillait fort. Il a travaillé à deux emplois à un certain temps mais même à ça, à moins qu'il travaillait en surtemps, il était chez lui ou il était "off", de huit heures et demie le soir jusqu'à trois heures et demie le matin. Je doute fort qu'il a dormi pendant cinq-six heures ou sept heures dans son auto à tous les soirs. Je trouve ça un p'tit peu difficile à accepter. Il vit avec cette famille-là, ils sont ensemble depuis que [the complainant] a deux ans. De dire qu'il n'a jamais eu de temps seul avec elle, c'est pas mal difficile -- même si on parle d'une petite maison.

[28] In so commenting, the trial judge endorsed Crown counsel's misstatement of evidence. I accept the submission of counsel for the appellant that while Crown counsel's comments were damaging, this comment on the appellant's evidence by the trial judge would have "sealed the appellant's fate". In his only comment on the appellant's evidence, the trial judge was telling the jury that the appellant should not be believed on the basis of a misunderstanding of the evidence. In a case where credibility was at issue, this error was most serious.

[29] There are also a second and third incident of Crown counsel improperly attacking the appellant's credibility. Despite telling the appellant that he did not have to provide an explanation as to why the complainant made up the allegation of sexual abuse, Crown counsel invited the appellant to provide one and then ridiculed the explanation. Also, Crown counsel inquired of the appellant whether the complainant was a known liar. This court has repeatedly held that this specific type of cross-examination is improper: see for example R. v. F. (A.) (1996), 1996 10222 (ON CA), 30 O.R. (3d) 470, 1 C.R. (5th) 382 (C.A.).

3. The inappropriate and prejudicial reference to an excerpt of a Supreme Court of Canada decision during closing address

[30] During his closing address to the jury, Crown counsel proceeded to read an excerpt of a Supreme Court of Canada decision dealing with the non-reporting, incomplete reporting and delay in reporting cases of sexual abuse. Further, not only did counsel read from the decision (which is found in R. v. L. (W.K.), 1991 54 (SCC), [1991] 1 S.C.R. 1091 at pp. 1100-01, 64 C.C.C. (3d) 321 at p. 328), he in fact misrepresented the passage he was purporting to quote by omitting the references made therein by the court that the relevant opinion was attributed to a report and not to the court directly as the Crown represented. In my view, it was improper for counsel to read from this decision the passage he did for three reasons.

[31] First, he improperly read case law to the jury. Generally, in a jury trial, counsel is not permitted to quote from case reports: see R. v. Cashin (1981), 1981 3229 (NS CA), 65 C.C.C. (2d) 56 at p. 62, 49 N.S.R. (2d) 653 (C.A.); and Pianosi v. C.N.R., 1943 334 (ON CA), [1943] O.W.N. 766 at p. 770, [1944] 1 D.L.R. 161 (C.A.).

[32] Second, in reading this passage, Crown counsel was, in effect, relating evidence when there had been none. His reference to the Supreme Court of Canada was an attempt to influence the jury in its finding of fact on the issue. He was in effect telling the jury they were bound to follow the passage referred to: see R. v. M. (T.E.) (1996), 1996 ABCA 312, 110 C.C.C. (3d) 179 at p. 182 (Alta. C.A.); and R. v. I. (R.R.) (1995), 1996 155 (SCC), 112 C.C.C. (3d) 367 at p. 375 (B.C.C.A.), affirmed [1996] 3 S.C.R. 1124, 112 C.C.C. (3d) 367.

[33] Moreover, the jury was never instructed by the trial judge on the issue, thus leaving the jury with the impression that the Crown's remarks were proper.

4. The jury may have been left with the impression that the complainant's sincerity could be equated with reliability

[34] I find no merit in this ground of appeal. Both counsel at trial emphasized to the jury that the real issue in this case was credibility. In particular, defence counsel emphasized the demeanour of the complainant and made no effort to establish the distinction now sought to be made between credibility and reliability. This is likely the reason why the trial judge only briefly pointed out to the jury that they had to consider the reliability ("fiabilité") of the evidence.

5. Other incident

[35] There was another incident of improper cross-examination that occurred during the trial which, although not raised as grounds of appeal, warrant brief comments.

[36] During her cross-examination, it was suggested to the complainant that her evidence with respect to the location of the incidents of sexual abuse and her age at the time the abuse stopped was different from what she had said in her statement of April 28, 1995. For the purpose of these questions, she was shown and reviewed her statement.

[37] During the appellant's cross-examination, he was questioned on the issue of penetration. He was also shown the statement. Crown counsel confirmed that the appellant took the position that certain things had been omitted in the statement. At that point, Crown counsel proceeded to read the entire statement. He read it again, except for the last two sentences, in his closing address to the jury.

[38] It was not proper for Crown counsel to read the statement into evidence during either the cross-examination or in his closing address. The questions that had been asked did not permit him to read the entire statement. It could only be an excuse to avoid the rule against prior consistent statements and use the statement to bolster the complainant's credibility. No instruction was given by the trial judge to the jury on the use that could be made of the statement.

[39] Finally, having dealt extensively with the conduct of Crown counsel, something needs to be said about the conduct of defence counsel (who is not counsel on the appeal). Unfortunately, he never objected to anything, except with respect to Crown counsel having read the extract from R. v. L. (W.K.) to the jury. It has been pointed out by this court that the failure of counsel to object does not give Crown counsel carte blanche at trial: see R. v. R. (A.J.) (1994), 1994 3447 (ON CA), 20 O.R. (3d) 405 at p. 416, 94 C.C.C. (3d) 168 (C.A.).

[40] Unfortunately, the improprieties were never diffused or corrected by the trial judge.

[41] The disposition of the issues dealt with in this appeal lead me to conclude that the appellant did not receive a fair trial. As was so succinctly stated in R. v. F. (A.), supra, at p. 472, "unless and until Crown counsel stop this kind of improper and prejudicial conduct, this court will regrettably have to remit difficult and sensitive cases of this nature back for a new trial at great expense to the emotional well-being of the parties, not to mention the added burden to the administration of justice."

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

Appeal allowed.