WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
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. 2005, c. 32, s. 15.
CITATION: R. v. LeBrocq, 2011 ONCA 405
DATE: 20110525
DOCKET: C52176
COURT OF APPEAL FOR ONTARIO
Weiler, Gillese and Blair JJ.A.
BETWEEN:
Her Majesty the Queen
Respondent
and
Philip LeBrocq
Appellant
Joshua Frost and Crystal Tomusiak, for the appellant
Joanne K. Stuart, for the respondent
Heard: May 13, 2011
On appeal from the convictions on six counts of sexual assault entered by Justice L.L Gauthier of the Superior Court of Justice, sitting with a jury, on October 2, 2009.
By the Court:
Background
[1] Mr. LeBrocq seeks to set aside his convictions on six counts of sexual assault. He was tried by a court comprised of Justice L.L. Gauthier sitting with a jury.
[2] The complainant alleged that the appellant had sexually assaulted her on a number of occasions while he was involved in a romantic relationship with her mother. The assaults were said to have ranged from fondling to intercourse and to have spanned a period starting when the complainant was 7-10 years old and ending when she was 13.
[3] The appellant raises two grounds of appeal.
[4] First, he submits that the trial judge erred in dismissing his application at the outset of trial to introduce evidence that the complainant had previously accused another of the mother’s boyfriends of sexually assaulting her. The appellant proposed to lead the evidence in order to show that the complainant was fabricating her testimony and that she may have been confused about which of the boyfriends had sexually assaulted her. Although defence counsel at trial professed that he was not bringing the application under s. 276.1 of the Criminal Code, the trial judge treated it as such, and rejected it without holding a hearing on the basis that the insufficiently-detailed evidence proposed was not capable of being admissible under s. 276(2) of the Code.
[5] Secondly, the appellant submits that the cumulative effect of a series of allegedly improper comments by Crown counsel during her opening and closing addresses to the jury, as well as certain questions during cross-examination, rendered the trial unfair.
[6] We reject both grounds of appeal.
Dismissal of the s. 276.1 Application Without a Hearing
[7] Under s. 276.1(4)(c), unless there is some basis upon which the evidence sought to be admitted satisfies the trial judge that it is “capable of being admissible under subsection 272(2)”, the trial judge has no obligation to hold a hearing to determine whether that would be the case. The decision is discretionary and entitled to deference.
[8] In R. v. Ecker (1995), 1995 CanLII 3910 (SK CA), 96 C.C.C. (3d) 161, at pp. 181-82, a majority of the Saskatchewan Court of Appeal observed that it is preferable for courts to take a cautious approach to establishing the limits of the first stage of the s. 276.1 enquiry, and to leave such doubts as may exist regarding the admissibility of the proposed evidence to the hearing stage. Here, however, it is apparent from the trial judge’s reasons that she was satisfied the evidence, as presented to her at stage one, was clearly not capable of being of being admissible.
[9] The trial judge concluded that there was insufficient detail in the application and supporting affidavit to allow her to determine that the proposed evidence was relevant. The application provided no details of the alleged assaults by the other boyfriend or any evidence of whether he had been charged and, if so, the outcome of those charges. In any event, the trial judge concluded that, even if the other boyfriend had been tried and acquitted, it would not follow that the complainant had fabricated her evidence. Rather, it would simply show that the Crown had failed to prove the charges against the other boyfriend beyond a reasonable doubt. In that sense, the proposed evidence was not relevant. Even if it was relevant, the trial judge concluded that it would be inadmissible because it was prejudicial and had a significant potential to mislead the jury into an impermissible line of reasoning. She therefore dismissed the application.
[10] On the record before her, we see no error in the trial judge’s exercise of discretion in that regard and in her determination that the tendered evidence was not capable of being admissible under s. 276(2) of the Criminal Code.
The Comments and Questions by Crown Counsel
[11] Nor would we give effect to the argument that Crown counsel’s comments in her opening and closing addresses to the jury, together with certain of her questions to a defence witness, had the cumulative effect of rendering the trial unfair.
[12] The appellant isolates one comment made during Crown counsel’s opening submission, in particular, and three during the closing address. He also focuses on certain questions posed to a defence witness that he submits were designed to improperly bolster the complainant’s credibility.
[13] No objection was made to any of these comments or questions by defence counsel at trial (not Mr. Frost), nor did trial counsel seek any corrective instruction or apply for a mistrial. These concerns are raised for the first time on appeal.
Questions to Defence Witness
[14] In a brief cross-examination of one of the defence witnesses, Crown counsel elicited responses indicating that the complainant was a good student and a smart and intelligent girl with a lot of potential. In the context of the evidence as it unfolded at trial, we do not consider these questions put to the defence witness as amounting to impermissible oath helping. Crown counsel is entitled to put a human face on the complainant within limits. Moreover, the same evidence had already been elicited by defence counsel during the witness’ examination-in-chief.
The Crown’s Opening
[15] Crown counsel’s comments in her opening address were similarly benign, in our view. She outlined some biographical background showing that the complainant had had a difficult upbringing and – in the passage particularly impugned – she said: “Now, when you hear [the complainant’s] evidence and story, I want you to keep an open mind and remember that she is young and she’s just trying to survive in this world.” The appellant submits that the tenor of this presentation was to put the complainant in a sympathetic light and therefore to bolster her credibility improperly in a case where credibility was central.
[16] We agree with the Crown, however, that the presentation did little more than introduce the jury to who the complainant was and to provide some context for the allegations made. In addition, any difficulties were adequately offset by the trial judge’s general instructions to the jury that the views of counsel were not evidence, that the jurors must arrive at their own conclusions on the evidence, and that they were to do so without sympathy for either party or prejudice.
The Crown’s Closing
[17] Nor are we satisfied that the comments complained of in Crown counsel’s closing address, taken alone or cumulatively with the other impugned comments, led to any unfairness in the trial.
Motive
[18] In her closing, Crown counsel referred to the absence of motive to fabricate. She stated, “[t]he defence pointed out no motive for [the complainant] to fabricate”, and coupled that comment with the related rhetorical question, “Where is the motive for her to fabricate, and appear here and tell you about these embarrassing things?” The appellant submits that this reference irretrievably poisoned the jurors’ thinking process because it may have invited them to conclude that the onus had shifted to the defence to prove a lack of motive or that the absence of proof of motive must have meant the complainant was telling the truth.
[19] Again, we disagree. In the circumstances of this particular case, we do not think that these comments were unfair to the defence or that they required a corrective instruction. Fabrication was the centrepiece of the appellant’s defence and defence counsel went to the jury entirely on the basis that the complainant was lying and had made up her evidence. The Crown is entitled to counter that defence within limits.
[20] There is a difference between pointing to the absence of evidence – as Crown counsel did here – and suggesting in a flourish of rhetoric that the defence should have called evidence demonstrating such a motive and failed to do so, or that the Crown had proven the lack of motive to fabricate. Crown counsel’s comments may have been close to the line, but, when they are considered in context, we do not believe they would have led the jury to believe that there was any shift in the onus of proof, or a requirement on the defence to point to a motive to fabricate or anything else. Nothing in Crown counsel’s closing remarks would have invited the jury to reason that the absence of a demonstrated motive to lie necessarily means there was no motive, or that the absence of a motive to fabricate necessarily means the complainant must have been telling the truth. See R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 121; R v. L.L. (2009), 2009 ONCA 413, 96 O.R. (3d) 412 (C.A.). This is not a case like L.L., where Crown counsel’s remarks were particularly directive and egregious.
[21] The jury would have been aware of the trial judge’s clear instruction that there was no onus on the defence to call any evidence or to prove the appellant’s innocence. In addition, defence counsel’s lack of objection and the absence of any request for a corrective instruction are telling of the impact that defence counsel felt the comments may have had.
Erectile Dysfunction
[22] A key element of the appellant’s defence at trial that the complainant was fabricating her story was his evidence that he was suffering from erectile dysfunction during the years when he is said to have committed the sexual assaults.
[23] Crown counsel attacked this defence, and in her closing remarks alluded to a number of inconsistencies in the appellant’s evidence regarding the timing of his erectile difficulties and the consequent cessation of sexual relations with the mother. The appellant submits that Crown counsel misstated the evidence (which, he says, originated from an unfair line of questioning at trial). We do not agree that Crown counsel misstated the appellant’s evidence in any material fashion, or that her statements resulted from an improper line of questioning (we observe again that no objection was raised at trial about the Crown’s line of questioning). We are satisfied that Crown counsel’s statements did not lead to any unfairness.
[24] There was some evidence to support the appellant’s evidence that he had erectile difficulties. The complainant was apparently aware of it, and said so at one point in her testimony. In Crown counsel’s closing to the jury, she asked how the complainant would have known “this intimate detail about this man if he wasn’t engaging in sexual acts with her?” She characterized this as “the most powerful evidence in the case.”
[25] The appellant objects to these comments on the basis that they called for speculation on the part of the jury, because there was no evidence about how the complainant became aware of the appellant’s problems. In oral argument, the appellant’s counsel framed the issue in Browne v. Dunn terms,[^1] submitting that the Crown had never advanced the position before closing that it would argue the sole possible source of the complainant’s awareness was direct experience (as opposed, for example, to overhearing it being discussed by her mother and the appellant during the years they lived together). Mr. Frost submitted that it was incumbent on the Crown, had it intended to advance this position, to raise this issue in evidence by at least questioning the mother about it, before using the argument in closing. Hence, the Browne v. Dunn analogy.
[26] The stumbling block with this argument is that it was the appellant who elicited the evidence of the complainant’s knowledge of the appellant’s erectile difficulties. In cross-examination she responded to a series of questions by noting that there were times when the appellant “could not get it up.” The defence having brought this evidence out, there was no obligation on the Crown to pursue it, or to ask any other witnesses about it. The principle of Brown v. Dunn has no application.
The Role of Crown Counsel
[27] Finally, the appellant objects to Crown counsel’s statement in closing that: “My duty is to test his evidence. I’m not trying to be mean to him or make him look bad. I have to test the veracity and truth of what he says. I have duties to the court[.]” The appellant says this comment had the potential to impermissibly elevate the Crown in the jury’s eyes by suggesting that Crown counsel was impartial and that her submissions were motivated by her duty to the court to test the veracity of the appellant’s evidence.
[28] These comments were not improper in our view. In fact they accurately reflect the duty and obligation of Crown counsel and her position at trial, and did not reflect adversely in any way on either the appellant or his trial counsel.
Disposition
[29] In conclusion, no trial unfairness flowed from the impugned comments and questions of Crown counsel.
[30] Accordingly, the appeal is dismissed.
“K.M. Weiler J.A.”
‘E.E. Gillese J.A.”
“R.A. Blair J.A.”
RELEASED: May 25, 2011
[^1]: Browne v. Dunn (1873), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K. H.L.).