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:
An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
DATE: 20060829
DOCKET: C37206
COURT OF APPEAL FOR ONTARIO
GILLESE, BLAIR and LAFORME JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Peter Lindsay, for the appellant
Respondent
- and -
CHRISTOPHER LEE MITCHELL
C. Jane Arnup, for the respondent
Appellant
Heard: April 4, 2006
On appeal from a conviction for sexual assault with a weapon, dated June 19, 2001, before Justice John R. R. Jennings of the Superior Court of Justice with a jury.
R.A. BLAIR J.A.:
Overview
[1] Mr. Mitchell appeals from his conviction, by a jury presided over by Justice Jennings, for sexual assault with a weapon.[^1] The conviction arose out of a series of events that took place in the appellant’s apartment on the night of February 5-6, 2000, after he and the complainant had been drinking, and which involved what the appellant says was the consensual enactment of a bondage fantasy. The Crown says it was a non-consensual sexual assault.
[2] The appellant raises two issues on appeal. First, he submits that the trial judge erred in his charge to the jury in failing to correct various comments made by Crown counsel in closing, which comments were (a) not based on the evidence, (b) unfairly prejudicial to the defence, and (c) in some cases inflammatory. Secondly, he argues that the trial judge erred by analyzing the defence expert evidence about alcohol blackouts in his charge in a way that (a) misstated some of the that evidence, (b) ignored another part of the expert evidence, and (c) encouraged the jury to consider the wrong question in relation to the expert evidence as it pertained to the heart of the defence theory.
[3] For the reasons that follow, I would dismiss the appeal.
The Facts
[4] The appellant, a lawyer, met the complainant, N.H., in the summer of 1999. She was living on the street. He gave her some money, spoke to her sympathetically, and took her to dinner. They became friends and developed a platonic relationship. The complainant sometimes slept on the couch in the living room in his apartment when she had nowhere to go. Prior to the events in question, there had been no sexual interaction between them.
[5] On Saturday, February 5, 2000, the complainant called the appellant around 6:00 o’clock in the evening because she needed a place to stay. The appellant agreed she could stay with him and she went to the apartment. They smoked some crack cocaine and drank alcoholic “mudslides” together. “Mudslides” are an alcoholic drink each containing three ounces of spirits (one ounce of Kahlua, one ounce of vodka and one ounce of Baileys). This much is not contested. How much they consumed, and what happened thereafter, however, are the subjects of somewhat differing testimony.
[6] According to the complainant, she drank two mudslides between 8:00 p.m. and 11:30 or 12 midnight. She was lying on the couch and the appellant was sitting on the end. They talked and watched television and she fell asleep, awakening around 3:00 or 3:30 the next morning. When she awoke, she was lying on her stomach with her hands behind her back. The appellant was straddling her and was tying her hands with a scarf. She started screaming and he told her to shut up and to do what he said, and everything would be okay. He pushed her face into the pillows, then got up, went somewhere, and came back with a knife and some duct tape. He tightened the scarf around her wrists and put duct tape around her head and mouth. Her hand was cut by the knife as she struggled, but she managed to roll over on her back and told the appellant she was going to vomit. The appellant then helped her pull down the duct tape and got her scissors to help her cut the tape from her hair. She put the knife away and the appellant gave her cab fare to go to the hospital to get medical treatment for the cut on her hand.
[7] The appellant’s version of events is somewhat different. He says that after the complainant arrived at his apartment around 5:30 or 6:00 o’clock, they each had two mudslides and agreed to smoke some crack. The complainant left to get some crack and returned. They smoked it and continued drinking mudslides. Over the course of the evening, they consumed a thirteen-ounce bottle of Bailey’s, a thirteen-ounce bottle of Kahlua, and half of a twenty-six ounce bottle of vodka. They were both extremely drunk.
[8] According to the appellant, he and the complainant continued to drink past midnight. At some point they began to talk about sexual fantasies. He talked about a group sex fantasy. They both talked of fantasies of bondage, forced sex and rape. He suggested they act out a fantasy of forced sex and the complainant agreed. He got some scarves. She lay on her stomach and put her hands behind her back. The appellant tied the scarf around her wrists and then went to get some more “props”. He returned with duct tape and a buck knife. He put the duct tape on the complainant, but when he saw that she was genuinely struggling, he let her turn around and helped her get the tape off. At that point he realized her hand was cut.
[9] It is not in dispute that the appellant told the complainant either to shut up or to be quiet, to do what he said, and then everything would be alright. The appellant says this was part of the role-play. Nor is it disputed that he wrapped the duct tape around her head twice, including on her hair, covering from just below her nose to about her chin. The complainant cut the duct tape out of her hair using scissors the appellant either got for her or told her where to find. He gave her cab money to go to the hospital to have her cut hand treated. When at the hospital, the complainant told the hospital staff, and later the police, that she had been sexually assaulted by the appellant and that the bondage fantasy had been done without her consent. She did not tell the medical staff or the police that she and the appellant had been using crack.
[10] The complainant was a seasoned drinker. She was drinking heavily and using crack cocaine during this period in her life. On most weekends she got drunk. She had experienced blackouts in the past because of excessive consumption of alcohol. During these episodes, she had done things while drinking and then, after the fact, had been unable to remember what happened.
[11] The defence theory was that the complainant went into an alcohol-induced blackout starting at about 11:30 -12 midnight and that, while in the blackout state, agreed to act out the consensual bondage fantasy. This led to consensual, drunken activity, during which she emerged from the blackout, not remembering the discussions leading up to the events or her giving consent. When the appellant realized that something was wrong, he immediately ceased the enactment of the fantasy, helped the complainant remove the tape and gave her money to go to the hospital for treatment of the cut. The activity, while stupid and shameful, was not criminal.
[12] The defence called Dr. Douglas Gourlay, a doctor at the Centre for Addiction and Mental Health, as an expert on drug and alcohol use and abuse, including alcoholic blackouts. The Crown led no evidence about blackouts. Dr. Gourlay testified that alcoholic blackouts can last for minutes, hours or days, and that someone in a blackout continues to function normally[^2] but does not form long-term memory. People around someone in a blackout would not know that the person was in such a state. A person who has suffered blackouts in the past will generally require less alcohol over time to induce more blackouts. The use of crack increases cravings for alcohol. People can emerge from blackouts suddenly as a result of some shock, such as being cut with a knife.
[13] Dr. Gourlay was asked about two hypothetical scenarios that roughly paralleled the versions of the appellant and the complainant, respectively, about how much they had had to drink, and the likelihood of a blackout resulting in such circumstances. On the appellant’s version – at least six drinks, containing three ounces of liquor each, over the period of time between 5:30 - 6:00 p.m. and 3:00 a.m. the following morning, plus some crack cocaine – Dr. Gourlay was of the opinion that “the likelihood of a blackout would be quite high, very high”. On the complainant’s scenario – two such drinks between 8:00 p.m. and 11:30 - midnight – his opinion was that the risk of blackout was lower but unpredictable.
The Positions of the Parties
[14] The appellant attacks Crown counsel’s closing address to the jury in several respects, arguing that her comments were prejudicial, not based on the evidence, and inflammatory. He submits the trial judge failed to correct the improper statements in his charge to the jury or, to the extent that he did so, dealt with them inadequately.
[15] The appellant’s thirteen specific objections, what the trial Crown said, and the Crown’s response to the appellant’s position are summarized in the following chart:
What the Crown said to the jury
Appellant’s Position
Respondent’s Position
N.H. did not have enough alcohol in her body by 11:30-12 p.m. to increase her blood alcohol to the point of suffering a blackout. If she had four mudslides, it would not have been enough for a blackout. Having seven ounces of alcohol in her body would not have been enough for a blackout.
The statement is based on no evidence and is contrary to the uncontradicted evidence of Dr. Goulay.
The doctor testified that there was still a possibility that the complainant had blacked out even if one accepted her evidence that she had only two 3-ounce drinks. That “possibility” contrasted with his opinion that it was “very likely” that the complainant experienced a blackout if the appellant’s version was accepted.
If one accepts the defence position that the blackout started around 11:30, she would only have had about two or three ounces of alcohol in her body. The Crown was entitled to use the expert evidence to point out that it would be very unlikely that the complainant blacked out from that level of alcohol in her system if one accepted her evidence.
The Crown’s address may be seen as over-reaching to the extent that she said the expert’s evidence only supported a blackout if the appellant’s evidence was accepted. The accurate summary provided by the trial judge offset any prejudice from the Crown’s overstepping of the evidence.
The defence theory that the complainant suffered a blackout and thus did not remember consenting to acting out a consensual bonding fantasy depended on the jury accepting the appellant’s scenario of alcohol consumption over the complainant’s scenario. The appellant’s version forms the foundation of Dr. Goulay’s opinion. The appellant cannot admit that N.H. had only two drinks.
The uncontradicted evidence was that the defence theory could work based on either scenario. The trial judge appeared to have understood the Crown’s error during pre-charge discussion but he did not properly correct it during the actual charge.
Dr. Goulay had not written any articles about alcoholic blackouts. He is in no better position than the jury with respect to his knowledge of blackouts.
The statement was contrary to law and to the trial judge’s ruling qualifying Dr. Goulay as an expert. It is also contrary to Dr. Goulay’s evidence as to his extensive work with alcoholics and blackouts.
The Crown was entitled to suggest that there were weaknesses in the expert’s qualifications. There is no test to verify whether someone has experienced a blackout. It was an unfortunate turn of phrase to state that the jury was in as good a position as Dr. Goulay to evaluate whether the complainant had a blackout. However, no harm flowed from the remark as the jury had heard the witness’s credentials and could make their own judgment about his skills.
N.H. was consistent from the first time she spoke to police until trial about how much she had to drink. If defence counsel had detected an inconsistency, he would have put it to her.
This was attempting oath-helping. There was no evidence of recent fabrication and no evidence whatsoever to support the statement. The unfounded allegation of consistency was important because the complainant had been impeached on other important points.
The Crown was in error when she said the complainant had been consistent regarding the number of drinks she had. In fact, defence counsel cross-examined the complainant about prior occasions on which she had described having a “few drinks” as opposed to “two” as she testified in her examination-in-chief. Defence counsel reiterated this point in his closing address as an example of her inconsistencies.
The defence was being completely unfair in suggesting that the complainant was lying to make her story sound more believable. She did not lie.
The complainant admitted lying to the doctors and nurses. She also gave specific evidence at trial suggesting that she was prepared to lie to make her story as believable as possible.
The Crown acknowledged that the complainant had not disclosed the drug use until just before the preliminary inquiry. The complainant omitted to disclose her drug use but “lie” was a mischaracterization. The point was thoroughly explored on cross-examination and the jury was aware that the complainant had misled the medical staff and police.
N.H. knew about the appellant’s financial difficulties because he mentioned them to her when he started to cry at the end of the incident that night.
The Crown inferred that the complainant had no other way of knowing about the appellant’s financial situation. However, the appellant had given specific evidence that N.H. knew about his financial difficulties from previous discussions with him prior to the night in question.
It was permissible to suggest that the complainant knew about the appellant’s financial concerns as a result of his statements to her begging her not to go to the police. The complainant was not asked if she knew about his problems before that night. This was an insignificant part of the trial.
The bruising on the complainant’s wrists was only consistent with the complainant’s version of events. The bruising is independent confirmation that N.H. was doing exactly what she said she was doing.
The bruising is also clearly consistent with the appellant’s version of events, according to which N.H. started to struggle and he stopped acting out the fantasy. The struggle could have caused the bruising.
It was open to the Crown to make this suggestion. In the complainant’s version, she struggled far more extensively than what was admitted by the appellant. It was open to the jury to draw an inference that the bruising was caused by the more protracted struggle.
The cut on N.H.’s hand was only consistent with her version of events.
The cut was consistent with both versions. According to the appellant, N.H.’s hand was accidentally cut during the rape fantasy. She agreed that the cut could have been accidental. The trial judge repeated the Crown’s argument in his explanation to the jury of the Crown’s theory, without correcting it at all (though he did point out her acknowledgment that the cut could have been accidental).
The reference to the cut was not prejudicial. It was open to the Crown to suggest that the cut was more likely to have happened during the struggle described by the complainant.
The blood on the appellant’s shirt was only consistent with the complainant’s version of events.
The blood was consistent with both versions. According to the appellant, they were in close contact acting out the fantasy, during which her hand was cut. The trial judge repeated the Crown’s argument without correcting it in any way.
It was open to the Crown to argue that the stains on the appellant’s shirt were more consistent with the complainant’s version of a more extensive struggle taking place.
The appellant does not get the same sexual stimulation if he is not forcing himself on someone. It is the force that is the fetish. It is the resistance that he finds gratifying.
There was no such evidence. The statements are highly inflammatory and not based on evidence. The trial judge did say there was no evidentiary foundation, but that correction is incomplete and not nearly strong enough.
There was no testimony to support the statement. The trial judge expressly told the jury to disregard the remark because it lacked an evidentiary basis. The instruction was sufficient to remove any prejudice.
The complainant, not being interested in group sex, implied that she was less likely to be interested in acting out a consensual rape or bondage fantasy.
The statement was based on no evidence.
There was no factual foundation for the assertion that, because the complainant was disinterested in group sex, she was less likely to be interested in bondage fantasy. The jury would have applied its common sense to the non sequitur and given it the weight it deserved.
The accused, in comparison to the complainant, does have quite a bit of status in society.
The statement was a blatant appeal to the jury’s sympathy and prejudice, rather than to the evidence. It should have been corrected by the trial judge but was not.
This was an innocuous reference to a clear fact. The Crown was addressing the concern that jurors might have preconceived notions about the relative reliability of the evidence of an articulate lawyer and a street person. The trial judge twice instructed the jury to disregard sympathy or prejudice and base their verdict solely on the evidence.
The appellant held a knife “against” the complainant.
The statement was based on no evidence.
No prejudice could have occurred from the statement. The knife must have been held against her for her to have been cut.
[16] In addition, the appellant argues that the trial judge’s charge to the jury on the expert evidence of Dr. Gourlay with respect to the elimination of alcohol from the bloodstream was factually incorrect and misleading, and led the jury to focus on the wrong question in relation to the defence theory.
Analysis
The Crown’s Closing Address
[17] Mr. Lindsay and Ms. Arnup agree on the law that applies to counsel’s jury addresses. It is summarized in R. v. Rose (1998), 1998 768 (SCC), 129 C.C.C. (3d) 449 (S.C.C.) at para. 104:
The purpose of the jury address was accurately described by Robert White, Q.C., in The Art of Trial (1993), at p. 213, as being “to present the party’s case clearly and in a way that is of help to the court in the performance of its duty.” Generally speaking, counsel are “limited to reviewing and commenting on the evidence and to the making of submissions which may properly be supported by the evidence adduced”: see Gray v. Alanco Developments Ltd., 1967 221 (ON CA), [1967] 1 O.R. 597 at p. 601, 61 D.L.R. (2d) 652 (C.A.). Nonetheless, few would deny the powerful persuasive force which well-crafted and skilfully presented submissions may have in a jury trial.
[18] Crown counsel, in particular, must show fairness and restraint. He or she must be accurate and dispassionate and not misstate the evidence or make assertions for which there is no evidence. This court commented on Crown counsel’s obligations in addressing the jury in R. v. Nugent (1995), 1995 8927 (ON CA), 100 C.C.C. (3d) 89 (Ont. C.A.) at 96:
The Crown’s function was set out by Taschereau J. in Boucher v. The Queen (1954), 1954 3 (SCC), 110 C.C.C. 263 at p. 267, [1955] S.C.R. 16, 20 C.R. 1, and cited with approval by Chief Justice Lamer in R. v. Swietlinski (1994), 1994 71 (SCC), 92 C.C.C. (3d) 449 at pp. 458-9, 119 D.L.R. (4th) 309, [1994] 3 S.C.R. 481 [translation]:
“The position held by counsel for the Crown is not that of a lawyer in civil litigation. [The] functions are quasi-judicial. [The Crown’s] duty is not so much to obtain a conviction as to assist the judge and the jury in ensuring that the fullest possible justice is done. [The Crown’s] conduct before the court must always be characterized by moderation and impartiality. [The Crown] 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 [the] function, [the Crown] presents the evidence to the jury without going beyond what it discloses.”
In the case on appeal it is impossible to imagine that the cumulative effect of the uncorrected, inappropriate inferences and unsupported remarks by the Crown did not prejudice the appellant. These overstated comments went well beyond “rhetorical excess”, and transgressed the Crown’s responsibility to be fair and accurate.
[19] Where Crown counsel has failed to comply with these obligations, it is the duty of the trial judge to remedy the situation. If the trial judge fails to redress properly the harm caused by a clearly inflammatory, unfair or significantly inaccurate jury address, a new trial may ensue: R. v. Rose, supra, at para. 127.
[20] Here, the appellant contends that Crown counsel misstated the evidence, made submissions based on evidence that did not exist or that were contrary to the uncontradicted evidence of the defence expert, engaged in attempted oath-helping in respect of the complainant’s evidence, and inappropriately stereotyped the “status” of the complainant as compared to that of the appellant. The appellant’s thirteen complaints about the Crown’s address, and his position with respect to them, are summarized in the chart outlined above.
[21] The Crown acknowledges that counsel’s address to the jury “may have contained a few remarks that were at the outer edge of permissible advocacy”, but argues that the trial judge’s charge as a whole, and the jury’s common sense, would have “neutralized any negative impact of the Crown’s hyperbole”.[^3] Moreover, the Crown contends, a number of the criticized remarks were permissible inferences the Crown was entitled to ask the jury to draw from the evidence,[^4] and the trial judge adequately corrected the two remarks the Crown agrees were inaccurate or without factual foundation.[^5] The Crown’s position with respect to each of the appellant’s thirteen complaints about the Crown address is also summarized in the foregoing chart. On the record before us, and having particular regard to counsels’ addresses and the trial judge’s charge to the jury, read as a whole, I am satisfied that there is nothing in the targeted statements made by the Crown – viewed individually and cumulatively – that would warrant the granting of a new trial.
[22] The two most serious complaints relate, first, to the Crown’s remark in relation to the appellant’s motivation that it is the “force that is the fetish” and “the resistance that Mr. Mitchell finds gratifying”, and, secondly, to the Crown’s submissions about the possibility of a blackout.
[23] The Crown concedes that there was no evidence to support the former statements or the Crown’s submission that the appellant did not derive sexual satisfaction unless his partner was not consenting. However, the trial judge specifically instructed the jury that they were not permitted to draw such an inference. He told the jury:
Secondly, it was suggested that because of his rape fantasy, Mr. Mitchell could not obtain sexual gratification if there was consent to sexual activity. That’s an example of an inference that cannot be drawn because of the lack of an evidentiary foundation. No evidence was led as to the effects of rape fantasies on sexual gratification in general. Mr. Mitchell simply stated that he had had rape fantasies in the past.
[24] I am satisfied that the trial judge’s direction in this regard was sufficient to overcome any prejudice that Crown counsel’s remarks may have caused to the defence position.
[25] The Crown’s remarks about the possibility of a blackout raise a more difficult concern. As noted above, Dr. Gourlay testified that, on what amounted to the appellant’s version of consumption of alcohol, there was a very high likelihood that a woman in the complainant’s position would suffer a blackout, and that, on what amounted to the complainant’s scenario, the risk of blackout would be “lower”, but “unpredictable”. In short, a blackout was possible based on the evidence of either the appellant or the complainant. In her address to the jury, Crown counsel submitted that the complainant would not have had enough alcohol in her blood to suffer a blackout, even on the defence theory, but went on to say:
The blackout defence depends upon you believing the accused’s version of the pattern of drinking. That is what forms the foundation of Dr. Gourlay’s opinion. The accused cannot admit that [N.H.] had only two drinks. On [N.H.’s] evidence, that she was only drinking between 8:00 and 11:30, the doctor had to say it was less likely she would have a blackout. If she was not drunk, there would be no blackout. No blackout, no consent [emphasis added].
[26] To the extent this comment suggested the jury could only conclude the complainant suffered a blackout if they accepted the appellant’s version of consumption, it is clearly at odds with Dr. Gourlay’s testimony. Ms. Arnup candidly acknowledges this. However, Crown counsel immediately went on to say in her address that “on [N.H.’s] evidence, that she was only drinking between 8:00 and 11:30, the doctor had to say it was less likely she would have a blackout.” This statement was consistent with Dr. Gourlay’s testimony.
[27] Moreover, the trial judge correctly reviewed the expert’s evidence and made it clear to the jury that, although it was less likely on the complainant’s version of what had been consumed, a blackout was still possible even if they accepted her evidence. He told the jury:
The defence relies upon the evidence of Dr. Gourlay, who has experience in treating alcohol and drug addicted persons. Dr. Gourlay gave you his opinion that if a 22-year-old woman who had used alcohol since she was 14, had frequently drunk to excess and was drunk most weekends, had experienced blackouts, if that woman was to drink six three-ounce drinks between 5:30 p.m. and 3:00 a.m., as well as smoke cocaine, the likelihood of blackout was quite high, was very high. He gave his opinion that if that person had two three-ounce drinks, as [the complainant] testified was the case, between 8:30 p.m. and 11:30, the risk of blackout would be lower. The occurrence of a blackout is unpredictable, but there is still a risk. He gave his opinion that such a woman, if in an alcoholic blackout, could continue to talk, drink, and agree to act out a bondage fantasy during which she could come out of a blackout, having no memory of the agreement that had taken place in the blackout and be furious [emphasis added].
[28] In light of the foregoing, the jury would not be left with the impression that they could only accept the “blackout” defence if they accepted the appellant’s version of what happened. Thus, to the extent that Crown counsel may have overstepped the evidence in the first part of her remarks cited above, any prejudice that may have resulted to the appellant from that alone was adequately addressed by Crown counsel’s subsequent clarification and by the trial judge’s clear and accurate charge in this regard. I would not give effect to this ground of appeal.
[29] Crown counsel does not misstate the evidence simply because he or she asks the jury to view it differently than the accused urges. As long as there is evidence to support a suggested inference, the Crown is not obliged to put to the jury a different inference that may be favoured by the defence. This principle applies to dispose of the appellant’s complaints about (i) the Crown’s reference to the complainant’s knowledge of the appellant’s financial circumstances[^6], (ii) the statements that the bruising on the complainant’s wrists and the cut on her hand were only consistent with the complainant’s version of non-consensual activity[^7], and (iii) the Crown’s submission that the blood stains on the appellant’s shirt were more consistent with the complainant’s version of a more extensive struggle than that of the appellant. The complaint about the Crown’s statement that the appellant held the knife against the complainant is inconsequential, since the knife must have been “against” the complainant at some point if she was cut by it and, in any event, no prejudice could have arisen from such a statement.
[30] The appellant complains that Crown counsel improperly undermined Dr. Gourlay’s expertise by suggesting that the jury was in as good a position as he to evaluate whether the complainant had had a blackout, since the evidence was that there is no test available to verify whether someone has experienced a blackout. This was perhaps an unfortunate choice of phrase, but the Crown was entitled to point out weaknesses in the expert’s qualifications and I am not persuaded that the jury would have been influenced one way or another by the Crown’s remark; they knew Dr. Gourlay had been qualified by the trial judge as an expert, were aware of his extensive credentials, and could well arrive at their own conclusion as to his skills.
[31] The appellant submits that Crown counsel engaged in impermissible oath-helping regarding the complainant’s testimony by stating – incorrectly, on the evidence – that she had been consistent from the outset about how much she had had to drink and that if the defence counsel had detected any inconsistency he would have cross-examined on it. The Crown was in error in suggesting that the complainant had been completely consistent. However, defence counsel pointed out these inconsistencies in his closing address, the jury was clearly instructed that they were to decide the case on the basis of the evidence before them alone, and I am not satisfied that there was any prejudice to the appellant from this erroneous statement by the Crown.
[32] Similarly, I am not persuaded that any prejudice resulted from the Crown’s unfounded remark that because the complainant was not interested in engaging in group sex she was less likely to be interested in playing out a bondage fantasy, or from her remark about the appellant and the complainant having a different status in society. The jury was warned by the trial judge to ignore speculative inferences, told to avoid prejudice or sympathy, and directed to base its verdict on the evidence. This, and the jury’s own common sense, were sufficient to overcome any difficulties that may have been created by the Crown’s comments.
[33] Finally, the appellant argues that Crown counsel misstated the evidence when she said the defence was being unfair in suggesting the complainant was lying to make her story more believable and that the complainant did not lie. In considering this complaint, it will be helpful to note exactly what it was that Crown counsel said to the jury:
You heard [the complainant] testify about her fear of not being believed because she has no status in society. It was the reason that she didn’t tell the doctors at Toronto Western Hospital and the police about smoking crack. Defence counsel has characterized that as lying to make her story more believable. That is completely unfair. She did not lie. She did not tell the police about the crack because she thought they would stop listening, that they wouldn’t care about what happened to her and that they would judge her for what she was, rather than what she was telling them had happened to her. That is common sense. Before the preliminary hearing, even before she had been examined in-chief, never mind cross-examined, she did tell the police about smoking crack; and because of that, defence counsel was able to cross-examine her about that at the preliminary inquiry and, of course, here in front of all of you. [The complainant] didn’t have to tell the police about the crack. If she had not told us, there would not have been any way of finding out.
[34] In my opinion, the appellant seeks to place much more emphasis on the sentence “She did not lie” than it deserves. It was incorrect, in a literal sense, to suggest that the complainant had not lied; the complainant herself admitted that she misled the doctors and nurses at the hospital. The “lie” relied on was the failure to tell the medical staff at the hospital and the police that she and the appellant had been smoking crack cocaine that evening. Crown counsel was not suggesting that anything other than that scenario was the case. She was simply trying to attenuate the defence characterization of the failure to disclose as a “lie” by pointing out the complainant’s reason for having done so. The jury could not have been under any misapprehension from Crown counsel’s statement that the complainant had not misled the medical staff and police that evening. In addition, the trial judge told the jury clearly that the complainant “did not tell the doctors and, at first, did not tell the police about the use of cocaine at Mr. Mitchell’s flat.” Nothing turns on the statement “She did not lie” by Crown counsel, in my opinion.
[35] In the end, while Crown counsel regrettably overstated the evidence and her position in several instances during her closing address, I am not convinced that those statements prejudiced the appellant in any way that would justify the ordering of a new trial. The trial judge clearly corrected the two most egregious instances and in other respects the criticized remarks either conformed to the evidence, when considered in their context, or constituted inferences that the Crown was entitled to ask the jury to draw, or were comments that the jury’s common sense and the trial judge’s instructions as a whole would overcome.
The Trial Judge’s Instructions Regarding the Expert’s Evidence
[36] In addition, the appellant attacks the following passage in the trial judge’s charge to the jury, dealing with the elimination of alcohol from the bloodstream, as factually misleading and prejudicial to the defence and, in substance, as a failure to put the defence position fairly to the jury:
Dr. Gourlay said that the body eliminates one standard drink an hour, and perhaps something less for a woman, and he defined a standard drink as being one of one and a half ounces. If two persons drank six three-ounce drinks, that would be the equivalent of 12 one and a half-ounce drinks over 9 to 10 hours. It would appear from that evidence that 9 to 10 drinks would have been eliminated, leaving two or three drinks in the body. If you accept that, in the light of [N.H.’s] evidence, it will be for you to determine whether Dr. Gourlay’s hypothetical situation is of assistance to you [in] determining whether or not [N.H.] went to sleep or stayed awake and had a blackout.
[37] First, Mr. Lindsay argues that in this passage the trial judge mischaracterized the defence position in a material way. The defence position was that the complainant had gone into a blackout at around 11:30 - 12 midnight and emerged from the blackout at around 3:30 a.m. when the bondage incident took place. Mr. Lindsay contends that by suggesting the drinking took place “over 9 to 10 hours” the trial judge was asking the jury to consider whether the complainant went into the blackout at around 3:30 a.m. and was thereby positing the wrong question to the jury in a way that was detrimental to the defence.
[38] I would not give effect to this submission.
[39] In the first place, I do not accept that the impugned passage forms part of the trial judge’s charge dealing with the theory of the defence. Although the reporter’s reproduction of the charge indicates no break in the transcript at this point, it is clear from a reading of the charge that the trial judge had finished his summary of the Crown and defence positions some time prior to the passage in question, and had turned to a review of the evidence of the defence expert. He says, “The defence relies upon the evidence of Dr. Gourlay, who has experience in treating alcohol and drug addicted persons”. There follows an accurate outline of Dr. Gourlay’s testimony regarding the likelihood of a blackout based upon the respective versions of consumption put forward by the appellant and the complainant, and a summary of the complainant’s position with respect to the blackout. The trial judge then says, “There’s another matter”, and the passage that is attacked follows immediately. I am satisfied that the trial judge’s comments in this connection were not made in the context of his summary of the theory of the defence (although admittedly they were pertinent to that theory). Rather, they were made as an additional matter to be commented on following his review of Dr. Gourlay’s testimony.
[40] In addition, the trial judge was simply posing an example to assist the jury in its consideration of Dr. Gourlay’s evidence. He was entitled to do that and did not have to accept the defence hypothesis for that purpose. The appellant’s evidence was that he and the complainant were drinking throughout the entire period from 5:30 or 6:00 p.m. to 3:30 a.m. (the nine to ten hours alluded to by the trial judge); the appellant did not say they consumed all six drinks each by 11:30. Thus, there was a basis for suggesting that the drinking continued for a nine to ten hour period, and the trial judge’s example of the possible blood alcohol level of the complainant at the time of the incident was not faulty in that respect.
[41] The fact that defence counsel may have attempted to frame the issue differently for the jury does not make the trial judge’s comment improper. Defence counsel’s hypothesis to the jury was that the complainant went into a blackout at about 11:30 - 12 midnight and that the discussions about acting out the bondage fantasy took place thereafter, during which she consented to the acts that took place around 3:30 a.m.; at that time she came out of the blackout and protested. While the trial judge did not put the defence theory to the jury in terms of that specific time line, he did squarely put the theory to the jury that:
[the complainant] did not go to sleep, that she entered into a blackout in which she carried on normally, engaged in a joking conversation of a sexual nature, and ultimately agreed to be tied up, bound with tape and mock raped. Upon snapping out of the blackout, she had no memory of her conversation or agreement and became outraged with the situation in which she found herself whereupon she was released.
[42] There is no danger, in my view, that the impugned passage from the trial judge’s charge would undermine the jury’s grasp of that defence position.
[43] Secondly, Mr. Lindsay submits that the trial judge misstated the evidence, and failed to refer to evidence that he should have referred to, on the issue of alcohol elimination from the blood. Dr. Gourlay had testified that a person eliminates more than one ounce and less than one and one-half ounces of alcohol per hour. But the trial judge telescoped this to “one standard drink an hour, and perhaps something less for a woman” in the passage cited above, suggesting that the complainant may have eliminated more alcohol at a given point, thus making a blackout less likely than indicated by the evidence. In addition, the appellant asserts that the trial judge made no reference at all to the expert evidence that it would take only two-thirds of the alcohol for a woman to achieve a given blood alcohol level as compared to a man, thus making a blackout more likely in the case of the complainant.
[44] To the extent that the trial judge’s mathematics may have been affected by his reference to a standard drink being one and one-half ounces of alcohol – as opposed to the more than one ounce and less than one and one-half ounces testified to by Dr. Gourlay – I do not think this seriously overstated the amount of alcohol that may have been eliminated from the complainant’s blood (thus making a blackout seem less likely). The trial judge told the jury “the body eliminates one standard drink an hour, and perhaps something less for a woman”. This would alert the jury to the possibility that the complainant may have eliminated less than one and one-half ounces per hour. There is no risk that the jury was misled by the trial judge’s example, in my opinion. As noted above, this passage in the charge did not form part of the trial judge’s outline of the positions of the Crown and defence.
[45] Nor was it necessary for the trial judge to allude to Dr. Gourlay’s evidence that it would take only two-thirds the amount of alcohol for a woman to achieve a given blood alcohol level as compared to a man. The trial judge told the jury elsewhere that an average woman eliminates about two-thirds the amount of alcohol that an average man does. Moreover, the expert had agreed that an experienced female drinker could eliminate alcohol as quickly, or perhaps more quickly, than an average man. The complainant was an experienced drinker. The two-thirds alcohol level issue, it seems to me, opens up an entirely different area of the evidence for examination. A trial judge is obliged to be balanced and fair, but has no obligation to pursue every piece of evidence that counsel may possibly be able to link, directly or indirectly, to any given point. Had the trial judge pursued the “two-thirds” issue, as the appellant urges, he would have had to outline all of the foregoing, the end result of which would have been no more than neutral for the appellant. In my view, it was not necessary for the trial judge to do so.
[46] In the end, I am not persuaded that the impugned passage from the trial judge’s charge led to any prejudice on the part of the accused, and I would not give effect to this ground of appeal.
Disposition
[47] For all of the foregoing reasons, I would dismiss the appeal.
“R.A. Blair J.A.”
“I agree E.E. Gillese J.A.”
“I agree H.S. LaForme J.A.”
RELEASED: August 29, 2006
[^1]: The appellant was also convicted of forcible confinement, but the conviction on that count was stayed pursuant to the principles enunciated in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729.
[^2]: He gave an example of an alcoholic surgeon performing neurosurgery while in an alcoholic blackout.
[^3]: Crown factum, para. 15.
[^4]: The inferences arise from remarks about the complainant’s knowledge of the appellant’s financial circumstances, the bruising on the complainant’s wrists, the cut on the complainant’s hand, the stains on the appellant’s shirt, and the holding of the knife against the complainant.
[^5]: The two remarks were “it is the force that is the fetish”, and the Crown’s submission about the possibility of a blackout.
[^6]: The Crown argued that the knowledge came from the appellant’s statements to the complainant the night of the offence when he begged her not to go to the police because it would bankrupt him, his parents and his ex-wife.
[^7]: The complainant testified she struggled vigorously once she awoke and found she was being tied up, finally turning herself over, and the appellant acknowledged that, while he did not know how the complainant was cut, it may have happened when he leaned forward over her while astride her legs and told her “everything would be O.K.”.