W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:

486.(3) Subject to subsection (4), where an accused is charged with

(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6.

DATE: 2003-01-29

DOCKETS: C37151 and C36990

COURT OF APPEAL FOR ONTARIO

ROSENBERG, CRONK and GILLESE, JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent (Appellant on Appeal of Sentence)

Laura Hodgson, for the respondent (appellant on appeal of sentence)

• and -

J.D.C.

Appellant (Respondent on Appeal of Sentence)

Clayton C. Ruby and Mara Greene, for the appellant (respondent on appeal of sentence)

Heard: September 27, 2002

On appeal from the conviction entered by Justice C. Raymond Harris of the Superior Court of Justice, sitting with a jury, on July 6, 2001 and the sentence imposed on August 24, 2001.

CRONK J.A.:

[1] J.D.C. was tried before Harris J. and a jury on the charge of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46, as amended. He was convicted of the offence charged on July 6, 2001, and sentenced on August 24, 2001 to twenty-four months imprisonment, less twenty months for time served in pre-trial custody, followed by probation for three years. He appeals his conviction. The Crown cross-appeals against the sentence imposed.

[2] Although the appellant raises several grounds of appeal in support of his conviction appeal, I have found it necessary to address only those grounds of appeal relating to the admissibility of evidence concerning the appellant’s propensity for violence while intoxicated, the absence of a limiting instruction to the jury concerning such evidence, and the procedure followed by the trial judge in permitting counsel to comment to the jury, upon conclusion of the jury charge, on aspects of the evidence.

[3] I have concluded that the evidence adduced by the Crown concerning the appellant’s propensity for violence while intoxicated was inadmissible and highly prejudicial to the appellant. Further, in my view, the trial judge erred by failing to provide a clear and specific limiting instruction to the jury concerning the use to which such evidence may be put. I also think that the procedure adopted by the trial judge, whereby he permitted both counsel, following the jury charge, to comment to the jury on aspects of the evidence, deprived the appellant of the important benefit, integral to our criminal law jury system, of impartial, concluding remarks by the trial judge to the jury prior to the commencement of jury deliberations. As this is not a proper case for application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, a new trial is required.

[4] Accordingly, on those grounds and for the reasons that follow, I would allow the conviction appeal and direct a new trial. Consequently, it is unnecessary for me to consider the Crown’s cross-appeal against sentence.

I. THE CONVICTION APPEAL

(1) Facts

[5] In January 2000, the appellant was residing with his nephew, J.D., J.D.’s nineteen year-old common law spouse (the complainant), and three children, two of whom were J.D.’s children by a previous relationship with his former girlfriend, A.C..

[6] According to the complainant, she was sexually assaulted by the appellant in the residence she shared with J.D. on February 26, 2000 after J.D. left the house to drive guests home. She maintained that the appellant was intoxicated, attempted to kiss her, persisted notwithstanding her attempts to rebuff him, and ultimately carried her against her will to a bedroom where he undid her pants and sexually assaulted her.

[7] The complainant did not initially tell J.D. or anyone else about the assault. She said that she did not do so because she was afraid of the appellant, given that he had been convicted in the past for manslaughter, and because she believed that he would harm her if she disclosed the assault.

[8] The appellant continued to reside with the complainant and J.D. until April 2, 2000, when he was arrested and incarcerated for impaired driving. The complainant acknowledged at trial that she visited the appellant in jail on three or four occasions while she was temporarily separated from J.D.. She said that she did so to confront the appellant about the sexual assault, and to tell him that she could no longer live with him. When the appellant was released from custody at the end of June 2000, the complainant, who was then reconciled with J.D., told J.D. that she did not want the appellant to live with them. However, she did not explain the reason for that request to J.D., and the appellant moved back into their home in early July 2000.

[9] In September 2000, J.D. received a telephone call from A.C., who questioned him about the care being provided to their children, and alleged that the appellant had told her that he and the complainant were having an affair. After that telephone call, the complainant told J.D. about the sexual assault. She maintained that she disclosed the assault to him before she knew of A.C.’s allegation. J.D. confronted his uncle concerning the assault and evicted him from the home. The appellant was arrested on September 24, 2000.

[10] On the day following his arrest for the alleged sexual assault, the appellant gave a videotaped statement to the police in which he denied ever having sex with the complainant, denied telling A.C. that he was having an affair with the complainant, and asserted that he was being “set up” by the complainant because she wanted him to leave her house. In January 2001, the appellant gave a second statement to the police. In his second statement, he claimed that he had consensual sex with the complainant on two occasions.

[11] At trial, the defence alleged that the complainant and the appellant were involved in a consensual sexual relationship beginning in March 2000, and that the complainant fabricated the sexual assault when she was confronted by J.D. concerning her alleged affair with the appellant after his telephone discussion with A.C.. The appellant testified at trial. He denied the sexual assault, and any confrontation of him by the complainant while he was in jail. The complainant, in her trial testimony, denied any consensual sexual relationship with the appellant.

(2) Issues

[12] In support of his conviction appeal, the appellant asserts that the trial judge erred by:

(i) permitting Crown counsel at trial (not counsel on this appeal) to introduce evidence of the appellant’s propensity for violence while intoxicated;

(ii) following the admission of the propensity evidence, failing to instruct the jury on the limited use which could be made of that evidence;

(iii) permitting both counsel, after completion of the jury charge, to comment to the jury on aspects of the evidence;

(iv) declining to permit defence counsel to adduce evidence of the appellant’s offer to take a polygraph examination; and

(v) misdirecting the jury on the requisite mens rea for sexual assault.

In my view, it is necessary for the disposition of the conviction appeal to address only those grounds of appeal set out as (i) to (iii), above.

(3) The Propensity Evidence

(i) The nature of the evidence

[13] Crown counsel cross-examined two defence witnesses at trial concerning the appellant’s propensity for violence while intoxicated.

[14] D.D., the appellant’s sister and J.D.’s mother, testified that she had a conversation with the complainant three months after the date of the alleged sexual assault, during which the complainant told her that she thought the appellant “had a very sexy looking body”, that she liked his hair, and that the appellant was “a lot of fun”. When D.D. questioned the complainant about whether anything was “going on between” them, the complainant allegedly replied, “no, we’re just friends.”

[15] During Crown counsel’s cross-examination of D.D., the following exchange occurred:

[Crown]. Ma’am, are you familiar with your brother’s criminal record?

A. Yes, I am.

Q. Would you agree with me that he has a problem with alcohol? Or he has, at least in the past, had a significant problem with alcohol?

A. In the past he has. May I say about the, the last time when [the appellant] did get out, he was drinking considerably less.

Q. When he drinks, ma’am, he has a tendency to commit violent crimes. Correct? That’s what you testified to …

A. Not always.

Q. … at the bail hearing.

A. He has in the past. I’m not …

Q. Right.

A. … saying every time he has a drink …

Q. Well, that’s …

A. … he’s violent.

Q. … all we’re talking about is the past. We can’t talk about the future. In the past he’s had a problem with drinking and committing violent crimes with his drinking problem.

Q. All right. In the past, he’s had a problem with committing violent crimes …

A. Yes. His violent …

Q. … when he’s consuming alcohol.

A. … crimes that you may be referring to …

Q. I’m not referring to any one …

A. Okay.

Q. … violent crime.

A. Okay. Yes, he has.

Q. Okay. But you would tell us and have us believe that of late he’s reduced his consumption of alcohol?

A. Yes.

Q. You’re aware of his convictions for impaired driving in April of last year?

A. Yes, I am.

[16] A.C. was also called as a defence witness at trial. Her evidence-in-chief concerned a conversation which she had with the appellant in a bar in September 2000, during which the appellant allegedly told her that J.D.’s house was dirty, that her children were left alone, that the childrens’ rooms were tied shut with ropes, and that he was involved in a sexual relationship with the complainant to “get back at [J.D.]” for his alleged treatment of the appellant’s children when they were youngsters. A.C. claimed that she made a telephone call to J.D. from a pay phone immediately after that discussion with the appellant. She said that she asked J.D. about his treatment of their children, and told him that the complainant and the appellant were having sex.

[17] On cross-examination of A.C., Crown counsel established that the witness told the police in September 2000 that the appellant was drunk when their conversation in the bar took place earlier that month. Crown counsel then questioned A.C. as follows:

[Crown]. You said you called [J.D.], and you asked him what was going on?

A. Yes.

Q. This is when you were, I take it, investigating what [the appellant] had told you?

A. Yes.

Q. And I suggest to you that you told [J.D.] that you didn’t want him leaving the children alone with [the appellant]?

A. Yes.

Q. Because, in your words, [the appellant] was an alcoholic. Correct?

A. Correct.

Q. Now, you indicated that after he told, [the appellant] told you that he was screwing [the complainant], that he said, he was telling you, in effect, that he didn’t want you to tell anybody?

A. No.

Q. Now, I just want to ask you about how this came out, what happened first. Would you agree with me that [the appellant] told you that he wanted to tell you something, as long as you wouldn’t tell anybody else?

A. Yes.

Q. Correct?

A. Yes.

Q. And in fact, I suggest to you that he told you that if you did tell anybody else, he’d hurt you?

A. Yes.

Q. Correct? And then he asked you if you’d tell anybody else, and you said that you would ask [J.D.] about it?

A. Yeah.

Q. And he said, okay, I’ll tell you anyway.

A. Yes [emphasis added].

(ii) The positions of the parties concerning the propensity evidence

[18] The appellant argues that the foregoing evidence of D.D. and A.C. was inadmissible, and should not have been placed before the jury, because it was not relevant to any fact in issue, it did not advance the Crown’s case, and, coupled with the knowledge that the appellant had a prior conviction for manslaughter and the complainant’s testimony that the appellant was intoxicated on the night of the alleged sexual assault, it could only be relevant to the appellant’s propensity to commit acts of violence while intoxicated.

[19] The appellant further submits that, if the propensity evidence was admissible for some purpose, once it was admitted, the trial judge was obliged to provide a limiting instruction to the jury on the use to which the evidence of the appellant’s discreditable conduct might be put. It is said that no such instruction was given here. The appellant maintains that the failure to provide a limiting instruction was exacerbated by the trial judge’s express reference in his jury charge to certain of the propensity evidence, and the provision by the trial judge of a limiting instruction only in connection with the appellant’s criminal record and not in relation to the propensity evidence.

[20] It is the Crown’s position on this appeal that any lapse or error in the admission of D.D.’s evidence concerning the appellant’s propensity for violence while intoxicated was corrected by the trial judge in his instruction to the jury on the use of the evidence concerning the appellant’s criminal record. Further, the Crown submits that the challenged evidence of A.C. was an insignificant aspect of the narrative of her alleged discussion with the appellant in the bar, and resulted in no prejudice to the appellant.

(iii) Analysis

(a) Admissibility of the propensity evidence

[21] Evidence that the accused is a person of bad character and for that reason is likely to have committed the offence in question is generally inadmissible. As summarized by Iacobucci J., for the majority of the court, in R. v. B. (F.F.), [1993] 1 S.C.R. 697 at 731:

[E]vidence which tends to show bad character or a criminal disposition on the part of the accused is admissible if (1) relevant to some other issue beyond disposition or character, and (2) the probative value outweighs the prejudicial effect.

[22] In this case, it was alleged against the appellant that he was intoxicated when he sexually assaulted the complainant. Crown counsel’s cross-examination of D.D. was brief. His questioning of her on her brother’s propensity for violence occupied a significant part of the cross-examination. Given the nature of the charge against the appellant, his suggested condition at the time of the offence, and the prominence of Crown counsel’s questioning on propensity in his cross-examination of D.D., I think that the only purpose of eliciting D.D.’s evidence of her brother’s propensity for violence while intoxicated was to invite the jury to infer from that evidence that the appellant was the type of person likely to have committed the sexual assault alleged by the complainant. The propensity evidence of D.D. was not relevant to any issue other than the appellant’s bad character and was inadmissible.

[23] Further, the prejudicial effect of D.D.’s evidence concerning the appellant’s propensity for violence while intoxicated must also be considered in the context of A.C.’s earlier testimony at trial that the appellant, while intoxicated, had threatened to hurt her if she told anyone of his claim that he was having an affair with the complainant. I am not persuaded that the prejudicial effect of that evidence by A.C. was neutralized, as asserted in this proceeding by the Crown, by the witness’ acknowledgement during re-examination that she did not take the appellant’s threat seriously at the time that it was made. A.C.’s perception of the seriousness of the appellant’s intention to harm her does not detract from the fact of the threat which, according to her, was made by the appellant while intoxicated. A.C.’s evidence, by itself, may have been inconsequential. However, in combination, the evidence of A.C. and D.D. concerning the appellant’s bad character had the effect of inviting the jury to engage in prohibited reasoning concerning the likelihood that the appellant had committed the offence charged.

[24] In my view, that evidence should not have been admitted.

(b) Whether a limiting instruction to the jury was required and provided

[25] While reviewing the evidence during his charge to the jury, the trial judge stated in connection with D.D.’s testimony:

On cross-examination, she did agree that she had testified at the preliminary inquiry, and that there had been an alcohol problem with [the appellant] in the past, but of late it is reduced, and that there, and she alluded to violence in [the appellant] with his drinking [emphasis added].

[26] That reference, and the propensity evidence given by D.D. and A.C., required that an instruction be given to the jury regarding the limited use which could be made of the propensity evidence of D.D. and A.C.. In R. v. B.(F.F.), Iacobucci J. explained the need, and the rationale, for such a limiting instruction (at pp. 733-35):

It is an obligation on trial judges that they properly instruct juries as to the use that those juries can make of evidence which is highly prejudicial to an accused in relation to the accused’s character. In the case at bar the trial judge did not charge the jury with respect to the use they could make of L.L.’s and T.B.’s testimony. Given that the testimony might have a strong prejudicial effect on the jury and that the jury might then convict on the basis that the accused is a bad person of the sort likely to commit the offences in question, clear directions to the jury about the use that they could make of the testimony were essential. More specifically, the judge was required to explain clearly in the instructions to the jurors that they must not infer from the evidence that tended to show the appellant’s bad character that the appellant was guilty because he is the sort of person who is likely to commit the offences in question.

The concern is that the evidence of bad character is potentially so inflammatory that without proper instructions, a jury may misuse the evidence and an accused may thereby be convicted unfairly. This concern arises not only with similar fact evidence but also with evidence that is of a highly prejudicial nature with respect to the accused’s character as in the case at bar. Given that this court ordered a new trial in R. v. D. (L.E.), [1989] 2 S.C.R. 111 partially on the ground that the trial judge did not adequately instruct the jury with respect to the limited use they could make of evidence tending to show the accused’s bad character, there is no support for the respondent’s argument that lack of proper instruction is not a reversible error of law and not ground for a new trial [emphasis added].

See also, R. v. McDonald (2000), 148 C.C.C. (3d) 273 (Ont. C.A.).

[27] In this case, the criminal record of the appellant was placed in evidence before the jury. The trial judge provided the jury with limiting instructions on the use to which they could put that evidence. No specific or companion limiting instruction was provided by the trial judge concerning the propensity evidence of D.D. and A.C.. The Crown argues on this appeal that the evidence of D.D. concerning her brother’s propensity for violence paralleled the evidence of the appellant’s criminal record that was properly before the jury, and that the need for a limiting instruction concerning that propensity evidence was met by the trial judge’s limiting instructions on the use of the appellant’s criminal record. I am unable to accept that submission.

[28] The trial judge gave two instructions to the jury concerning the evidence relating to past offences by the appellant. He provided the first cautionary instruction following completion of the complainant’s testimony, during which she said that she feared the appellant because he had previously been convicted of manslaughter. The trial judge’s caution to the jury was as follows:

Part of the evidence yesterday on the cross-examination of [the complainant] was arising out of her testimony about the delay in her reporting, came [sic] the evidence that [the appellant] had been convicted of manslaughter, and I want to give you a warning that that evidence has only very limited use. It cannot be used for any improper purpose of assuming that [the appellant] would be more likely to have committed this offence because he was convicted of another offence. In deciding this case, you may only use that evidence in [sic] a very limited purpose, as I say. You may only use that evidence to help you decide [sic]. If you believe the testimony of the accused, and how much weight, if any, you will give to it. You must not use that evidence for any other purpose. In particular, you must not use the fact that the accused has been convicted of the crime as evidence that he committed the crime charged in this case….[T]hat is how you are to view that piece of evidence. It only goes to credibility, and you may attach weight to it, or you may not. That’s entirely your decision.

[29] Subsequently, in his charge to the jury, the trial judge stated in connection with the appellant’s criminal record:

The [appellant] testified also on his cross-examination by [the Crown] with respect to his criminal record, which is also an exhibit before you. His criminal record may be considered by you only, and I stress the word only, in assessing his credibility. You can consider it in deciding what of his evidence you believe in terms of the credibility of the witness. You must not use his criminal record as evidence that he committed the crime with which he is charged, or conclude that since he has been convicted of other crimes, he is disposed to committing further crime. It is only to be used as to credibility.

[30] The trial judge provided no mid-trial limiting instruction following the evidence of A.C. and D.D., nor does it appear that a limiting instruction concerning the propensity evidence of those witnesses was requested by either counsel, whether during the evidentiary phase of the trial, or in relation to the jury charge. In addition, the limiting instruction given by the trial judge concerning the appellant’s criminal record was not repeated; nor was a similar caution given to the jury following the trial judge’s reference in his charge to the propensity evidence given by D.D.. Neither counsel objected to the jury charge on the basis of that omission.

[31] In my view, the propensity evidence of D.D., when viewed together with the propensity evidence of A.C. and the trial judge’s reference in his charge to D.D.’s propensity evidence, was sufficiently prejudicial that a blunt and specific limiting instruction was required regarding its use. The record before this court does not establish that a clear link was drawn for the jury between the evidence of the appellant’s criminal record and the evidence of his propensity for violence while intoxicated, such that it can be concluded with assurance that the jury understood the limiting instructions on the appellant’s criminal record to also encompass the propensity evidence. Moreover, the language used by the trial judge in providing his limiting instructions on the appellant’s criminal record did not include any reference to the propensity evidence. Finally, it is not clear on the record before this court that the appellant’s previous demonstrations of violence while intoxicated were always associated with offences for which he was charged and convicted so as to be included in his criminal record. Consequently, in my view, the Crown’s argument that the limiting instructions on the appellant’s criminal record embodied a sufficient limiting instruction on the propensity evidence must be rejected.

[32] The evidence of the appellant’s bad character should not have been left to the jury. Once that evidence was admitted at trial, it was incumbent on the trial judge to provide a clear limiting instruction on its use to the jury. I am unable to conclude that the result at trial was inevitable, had the jury charge included a proper limiting instruction. To the contrary, in my view, there is a real risk that the jury may have misused the propensity evidence and convicted the appellant in part on the basis of that evidence. The fact that defence counsel at trial (not counsel on this appeal) did not object to the admission of the propensity evidence, or to the omission of a limiting instruction concerning such evidence, is a relevant but not determinative factor on this appeal. The trial judge’s duty to consider the admissibility of all of the evidence, and to charge the jury properly, is not vitiated or lessened by the absence of comment or objection by the defence: see R. v. B.(F.F.) at 735-36 per Iacobucci J.; R. v. Bero (2000), 151 C.C.C. (3d) 545 at 552 (Ont. C.A.) per Doherty J.A.; and R. v. Cuming (2001), 158 C.C.C. (3d) 433 at 447-48 (Ont. C.A.) per Charron J.A..

(c) Application of the curative proviso under s. 686(1)(b)(iii) of the Criminal Code

[33] Crown counsel properly conceded before this court that, if the limiting instructions given by the trial judge did not embrace the requisite limiting instruction on the challenged propensity evidence, the curative proviso set out in s. 686(1)(b)(iii) of the Criminal Code does not apply, and a new trial would be required. I agree. That proviso may be applied in exceptional cases only as, for example, where the Crown’s case against an accused is so overwhelming that the trier of fact would inevitably convict even if the challenged evidence was removed from consideration: see R. v. B.(F.F.) at p. 737 per Iacobucci J. and R. v. S. (P.L.), [1991] 1 S.C.R. 909 at 916 per Sopinka J. In my view, that is not this case. Moreover, credibility was the key issue in this trial. The curative proviso is not applicable in those circumstances: see R. v. N. (R.K.) (1997), 32 O.R. (3d) 537 (C.A.); R. v. Hill (1995), 25 O.R. (3d) 97 (C.A.); and R. v. Dunn (1993), 14 O.R. (3d) 81 (C.A.).

[34] Accordingly, I conclude that the lack of a proper limiting instruction to the jury concerning the propensity evidence adduced by the Crown in this case was a reversible error of law which requires a new trial.

(4) Post-Charge Comments by Counsel to the Jury

[35] There is one further feature of this case upon which it is appropriate to comment.

[36] Before his jury charge was completed, and in the absence of the jury, the trial judge received brief submissions from counsel on his review of the evidence. He told counsel at that time that he intended to inquire of them, at the end of his charge, whether he had “misapprehended any evidence, or left matters out.” He explained his view that such a procedure would minimize recalls of the jury and limit any required recalls to issues of law rather than evidence. Neither counsel objected to that proposed procedure.

[37] Subsequently, upon concluding his charge, the trial judge informed the jury of the procedure he intended to follow, and explained its purpose. He stated:

[A]t this stage, I propose to inquire from counsel, while you are still sitting here, whether they have any comments on the evidence that I related to you during my instructions, and they can comment on any comments I made in front of you. This will do away with the necessity of asking you to return if there is a dispute over the evidence as opposed to the law. The law will be argued in your absence. The purpose is to correct any minor errors I might have made, or any errors plain, [sic] I might have made when discussing the evidence, and this is not to invite argument or re-argument.

[38] The following exchange then took place between the trial judge and Crown counsel:

[Court]. [D]o you have any comments on any of the evidence that I may have failed to emphasize, or I may have inadvertently misstated when mentioning it to the jury?

[Crown]. I have no comments on any of the issues that you stated. I think you have accurately put the evidence to the jury. I only point out a couple of areas that I wish to emphasize, with Your Honour’s permission.

[39] Crown counsel then proceeded to re-emphasize some of the evidence before the jury. A similar opportunity was provided, and utilized, by defence counsel. The respective comments of counsel were as follows:

[Crown]. The first thing is the evidence of the last witness, [D.D.]. She indicated that within weeks of the accused being charged that the information that she had came to her mind was clearly relevant, and did not provide it to [defence counsel], according to her evidence, until the date this trial started, that being Tuesday. The other issue that I wish to point out was when the accused indicated to [A.C.] that this disclosure about the relations that he was having with [the complainant], he indicated to her that he had a secret, that [A.C.] indicated that she would have to tell [J.D.], and he said, I’ll tell you anyway. Finally, with respect to his explanation for why, in his evidence, he lied to Detective Ireland when he gave his initial statement and denied having any sex with [the complainant], he indicated that he was in shock, that he was shocked and devastated, and that he thought it would all blow over, and of course, then there’s the evidence that he gave that he was told some weeks before that interview about the allegation by [J.D.]. So, those are the only points that I would emphasize.

[Court]. Thank you. [To defence counsel], do you have any comments on any of the evidence that I may have failed to emphasize, or I may have inadvertently misstated when mentioning it to the jury?

[Defence Counsel]. Yes, sir, with your permission. There was an area of questioning with respect to [the complainant], and that was after [the appellant] was released from jail. [The complainant]’s testimony was that she didn’t want him to return there, but in fact, [the complainant], I don’t have the exact wording, but to the effect that [the complainant] did not do anything about moving out, or make any steps in that regard to separate herself. Similarly, sir, I don’t know if you went over the evidence before, but she was frequently at the residence with [the appellant] alone after the incident, although in fairness, some of her testimony was that for the most part, she went outside with the children, but she remained in the residence. I think those are the only points that I’d like to re-emphasize.

[40] The appellant argues that permitting counsel to comment to the jury on the evidence at the conclusion of the trial judge’s charge conferred an unfair advantage on the Crown, because it permitted Crown counsel to underscore a key element of the Crown’s theory concerning the appellant’s delay in disclosing to the police the true nature of his relationship with the complainant. The appellant further submits that the Criminal Code, by affording both Crown and defence counsel one opportunity to address the jury at the conclusion of a trial judge’s charge, contemplates that the “last word” to a jury lies solely with the trial judge who has an obligation to correct any errors of counsel during their closing addresses, and to present both sides of the case fairly to the jury.

[41] Crown counsel concedes that the procedure followed by the trial judge was irregular and “perhaps unusual”, but submits that it did not prejudice the appellant because defence counsel’s final comments to the jury were as prejudicial as those of Crown counsel, and, in any event, Crown counsel at trial did not raise in his concluding remarks the issue of the appellant’s delay in telling the police about his alleged affair with the complainant; rather, his remarks focused on the appellant’s explanation to the police for having initially lied regarding the nature of his relationship with the complainant. Finally, the Crown maintains that the procedure adopted by the trial judge operated here to the advantage of the defence because it provided defence counsel with the opportunity to address the jury last.

[42] In my view, with respect, the procedure adopted by the trial judge was both unusual and ill-advised. The trial judge’s objective of allowing both counsel to comment to the jury on the evidence after his charge is understandable, because it was intended to minimize inconvenience to the jury and counsel, and to contribute to the efficiency of the trial process. However, it carried with it a significant risk that the last message received by the jurors prior to commencing their deliberations could work to the prejudice of the accused, and it ensured that the “last words” to the jury were partisan. The procedure was not authorized by the Criminal Code, and it conflicted with an important principle of our criminal law jury system: that the trial judge, as the impartial steward of the trial process, should communicate fairly, dispassionately, and last, to the jury. Neither counsel at a criminal trial should be permitted to comment to the jury after completion of the trial judge’s charge for the purpose of re-emphasizing any aspect of the evidence. It is clear from counsels’ comments to the trial judge and to the jury, that that is what each did here.

[43] I am not persuaded, in this case, that no prejudice to the appellant was occasioned by the procedure adopted by the trial judge. As I have earlier stressed in these reasons, credibility was the controlling issue at the trial. While I agree with the Crown that the concluding remarks of Crown counsel to the jury did not raise the issue of the appellant’s delay in disclosing to the police the alleged sexual nature of his relationship with the complainant, they did focus on at least one important aspect of his credibility, namely, his explanation for initially lying to the police concerning his relationship with the complainant. The ensuing remarks by defence counsel did not touch upon that issue, nor can it be assumed that they were capable of neutralizing any prejudicial effect of the comments by Crown counsel.

II. THE APPEAL AGAINST SENTENCE

[44] As I have concluded that a new trial is required, it is unnecessary for me to consider the sentence appeal.

III. DISPOSITION

[45] For the foregoing reasons, I would allow the conviction appeal, set aside the conviction, and order a new trial.

RELEASED: JAN 29 2003 Signed: “E.A. Cronk J.A.”

“I agree. M. Rosenberg J.A.”

“I agree E.E. Gillese J.A.”