Her Majesty the Queen v. F.E.E. [Indexed as: R. v. E. (F.E.)]
108 O.R. (3d) 337
2011 ONCA 783
Court of Appeal for Ontario,
Weiler, Cronk and Watt JJ.A.
December 14, 2011
Criminal law -- Appeal -- Application of s. 686(1)(b)(iv) -- Absence of accused from portion of trial -- Accused excluded during entire pre-charge conference in trial judge's chambers and for brief period regarding submissions about question being put to accused during cross-examination -- Brief absence during submissions regarding Crown's cross-examination not causing accused prejudice and s. 686(1)(b)(iv) applying -- Exclusion of accused from entire pre-charge conference [page338] breaching accused's right to be present pursuant to s. 650(1) of Code -- No objection by defence counsel at trial -- Barring exceptional circumstances not appropriate to apply s. 686(1)(b)(iv) of Code to accused's exclusion from entire pre-charge conference being serious breach of open court principle and impairing appearance of fairness -- Accused's appeal from conviction allowed -- Criminal Code, R.S.C. 1985, c. C-46, ss. 650(1), 686(1)(b)(iv).
Criminal law -- Trial -- Right of accused to be present -- Accused excluded during entire pre-charge conference in trial judge's chambers and for brief period regarding submissions about question being put to accused during cross-examination -- Brief absence during submissions regarding Crown's cross- examination not causing accused prejudice and s. 686(1)(b) (iv) applying -- Exclusion of accused from entire pre-charge conference breaching accused's right to be present pursuant to s. 650(1) of Code -- Exclusion impairing transparency of trial, appearance of fairness and significant violation of open court principle -- Section 686(1)(b)(iv) of Criminal Code not saving breach of s. 650(1) caused by accused's exclusion from entire pre-charge conference in absence of exceptional circumstances not present in this case -- Accused's appeal from conviction allowed -- Criminal Code, R.S.C. 1985, c. C-46, ss. 650(1), 686(1)(b)(iv).
The accused was charged with sexually assaulting a young woman in his home. He denied the complainant's allegations and advanced an alibi. At first, he claimed that he was out of the country on the date in question. He later stated that he was in his home city on the relevant date but was alternately working and resting at a friend's house. He testified that he was not the sort of man who would have committed the offence, and called several witnesses who testified about his good reputation in the community. The accused was excluded from the trial twice: once for about nine minutes, during his own cross- examination after the Crown indicated that it wanted to put a particular document to the accused and the trial judge asked about the relevance of the evidence to be elicited in the proposed cross-examination; and again during the entire pre- charge conference, which took place in the trial judge's chambers. He was convicted. He appealed.
Held, the appeal should be allowed.
The accused's exclusions during cross-examination and from the pre-charge conference contravened his right of presence under s. 650(1) of the Criminal Code and fell outside the exceptions in s. 650(2). A breach of s. 650(1) by exclusion of an accused from a part of his or her trial is a procedural irregularity to which s. 686(1)(b)(iv) of the Criminal Code can apply. If the accused's nine-minute exclusion during his own cross-examination had stood alone, s. 686(1)(b)(iv) could be applied and the conviction upheld on the basis that the accused suffered no prejudice as a result. However, in the absence of exceptional circumstances, s. 686(1)(b)(iv) will not save a breach of s. 650(1) caused by the conduct of the pre-charge conference in chambers in the absence of the accused. Pre- charge conferences to discuss instructions to the jury are part of an accused's trial and must be held in open court, in the presence of the accused, counsel, the trial judge and the court reporter. In this case, the record disclosed nothing about what happened at the pre-charge conference, and the pre- charge conference was not followed by a full discussion in open court in the presence of the accused. The accused's absence from the pre-charge conference and the conduct of the conference in the judge's chambers impaired the appearance of fairness, compromised the transparency of [page339] the trial proceedings and was at odds with the open court principle. Proof of actual prejudice was not a condition precedent to demonstration of a miscarriage of justice. The appeal should be allowed on this ground and a new trial ordered.
Even if the Crown should not have cross-examined the accused about whether he found the complainant "attractive" or about his receipt and review of disclosure materials, the accused was not prejudiced and it was not necessary to order a new trial on that ground. The Crown did not suggest that the accused's evidence was less worthy of belief because he had received full disclosure before trial and it was permissible to point out that the alibi notice was given after disclosure had been made, which contained details of where and when the complainant said the offence had taken place. It is generally impermissible to cross-examine an accused about whether he thought that the complainant attractive as it is irrelevant and may give rise to stereotyping of victims. In cases in which the accused places his character as to sexual matters in issue, as happened in this case, it might be permissible, but the better practice is for the Crown to seek a ruling from the trial judge in the absence of the jury before pursuing that line of questioning.
The trial judge did not err in his instructions to the jury on the defence evidence and on credibility and the burden of proof.
APPEAL by the accused from a conviction entered by Arrell J. of the Superior Court of Justice, sitting with a jury, on November 20, 2009.
The judgment of the court was delivered by
Cases referred toR. v. Logiacco, 1984 3459 (ON CA), [1984] O.J. No. 15, 2 O.A.C. 177, 11 C.C.C. (3d) 374 (C.A.); R. v. Simon (2010), 104 O.R. (3d) 340, [2010] O.J. No. 4723, 2010 ONCA 754, 269 O.A.C. 359, 263 C.C.C. (3d) 59, distd R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91, 119 D.L.R. (4th) 464, 171 N.R. 360, J.E. 94-1672, 157 A.R. 321, 93 C.C.C. (3d) 1, 34 C.R. (4th) 1, 25 W.C.B. (2d) 39, consd Other cases referred to R. v. Cloutier, 1988 199 (ON CA), [1988] O.J. No. 570, 27 O.A.C. 246, 43 C.C.C. (3d) 35, 4 W.C.B. (2d) 300 (C.A.); R. v. D. (B.), [2011] O.J. No. 198, 2011 ONCA 51, 226 C.R.R. (2d) 92, 273 O.A.C. 241, 266 C.C.C. (3d) 197; R. v. F. (M.), [2009] O.J. No. 3441, 2009 ONCA 617, 253 O.A.C. 12; R. v. Harriott (2002), 2002 23588 (ON CA), 58 O.R. (3d) 1, [2002] O.J. No. 387, 168 O.A.C. 342, 161 C.C.C. (3d) 481, 52 W.C.B. (2d) 496 (C.A.); R. v. Hertrich, 1982 3307 (ON CA), [1982] O.J. No. 496, 137 D.L.R. (3d) 400, 67 C.C.C. (2d) 510, 7 W.C.B. 478 (C.A.); R. v. Joinson, 1986 1195 (BC CA), [1986] B.C.J. No. 1333, 32 C.C.C. (3d) 542, 1 W.C.B. (2d) 149 (C.A.); R. v. Kakegamic, [2010] O.J. No. 5671, 2010 ONCA 903, 272 O.A.C. 205, 265 C.C.C. (3d) 420; R. v. Khan, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, 2001 SCC 86, 207 D.L.R. (4th) 289, 279 N.R. 79, [2002] 3 W.W.R. 1, J.E. 2002-24, 160 Man. R. (2d) 161, 160 C.C.C. (3d) 1, 47 C.R. (5th) 348, 51 W.C.B. (2d) 446; R. v. Khan, 1998 15007 (BC CA), [1998] B.C.J. No. 1450, 109 B.C.A.C. 299, 126 C.C.C. (3d) 523, 39 W.C.B. (2d) 2 (C.A.); R. v. M. (G.), [2011] O.J. No. 3165, 2011 ONCA 503, 282 O.A.C. 1; R. v. Marshall (2005), 2005 30051 (ON CA), 77 O.R. (3d) 81, [2005] O.J. No. 3549, 201 O.A.C. 154, 200 C.C.C. (3d) 179, 66 W.C.B. (2d) 602 (C.A.); R. v. McNamara (No. 1), 1981 3120 (ON CA), [1981] O.J. No. 3254, 56 C.C.C. (2d) 193 (C.A.); R. v. Moose, [2004] M.J. No. 415, 2004 MBCA 176, 190 Man. R. (2d) 156, 190 C.C.C. (3d) 521, 24 C.R. (6th) 246, 65 W.C.B. (2d) 668; R. v. Nealy, 1986 4694 (ON CA), [1986] O.J. No. 997, 17 O.A.C. 164, 30 C.C.C. (3d) 460, 54 C.R. (3d) 158, 17 W.C.B. 374 (C.A.); R. v. Profit (1993), 1993 78 (SCC), 15 O.R. (3d) 803, [1993] 3 S.C.R. 637, [1993] S.C.J. No. 104, 159 N.R. 395, 68 O.A.C. 37, 85 C.C.C. (3d) 232 at 248, 24 C.R. (4th) 279, 21 W.C.B. (2d) 170; R. v. Russell; R. v. Dunbar, 1936 323 (SCC), [1936] S.C.J. No. 50, 67 C.C.C. 28, affg 1936 350 (BC CA), [1936] B.C.J. No. 4, [1936] 3 W.W.R. 81, 51 B.C.R. 1, 66 C.C.C. 306 (C.A.); R. v. S. (J.H.), [2008] 2 S.C.R. 152, [2008] S.C.J. No. 30, 2008 SCC 30, EYB 2008-133842, 231 C.C.C. (3d) 302, 77 W.C.B. (2d) 781, 265 N.S.R. (2d) 203, 375 N.R. 67, 293 D.L.R. (4th) 257, 57 C.R. (6th) 79; [page340] R. v. Simon, 2001 11996 (QC CA), [2001] J.Q. no 1328, J.E. 2001-828, 154 C.C.C. (3d) 562 (C.A.); R. v. Thain, [2009] O.J. No. 1022, 2009 ONCA 223, 247 O.A.C. 55, 243 C.C.C. (3d) 230; R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 122 N.R. 277, J.E. 91-603, 46 O.A.C. 352, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302, 12 W.C.B. (2d) 551, EYB 1991-67602; R. v. White (1999), 1999 3695 (ON CA), 42 O.R. (3d) 760, [1999] O.J. No. 258, 117 O.A.C. 246, 132 C.C.C. (3d) 373, 22 C.R. (5th) 56, 41 W.C.B. (2d) 138 (C.A.); R. v. Y. (C.L.), [2008] 1 S.C.R. 5, [2008] S.C.J. No. 2, 2008 SCC 2, J.E. 2008-277, 370 N.R. 284, 76 W.C.B. (2d) 160, EYB 2008-128793, [2008] 2 W.W.R. 1, 289 D.L.R. (4th) 1, 53 C.R. (6th) 207 Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 468, 470(b)(i), 650(1) [as am.], (1.1), (1.2) [as am.], (2), 686(1)(b)(iii), (iv)
Hussein Aly and Aisha Amjad, for appellant. Gregory J. Tweney, for respondent.
[1] WATT J.A.: -- Persons charged with serious criminal offences have the right to be present during the whole of their trial. [See Note 1 below]
[2] F.E.E. (the appellant) had a jury trial. Twice during the trial, the presiding judge excluded the appellant from the proceedings.
[3] The principal issue in this appeal is whether the appellant's conviction of sexual assault can survive because his exclusions from the proceedings were procedural irregularities under s. 686(1)(b)(iv) of the Criminal Code, R.S.C. 1985, c. C-46 that caused him no prejudice. I have concluded that s. 686(1)(b)(iv) cannot save the appellant's conviction. These reasons explain why I would allow the appeal, quash the conviction and order a new trial on the charge of sexual assault. The Background Facts
[4] The complainant alleged a single incident of sexual assault that started out with a back rub, progressed to touching of her breasts, continued with digital penetration of her vagina and concluded with preparations by the appellant for vaginal [page341] intercourse that were interrupted by a knock on the front door of the appellant's home.
The principals
[5] The appellant, a 51-year-old long-distance trucker, lived in his own home with his two sons and the girlfriend of one of his sons. In early 2007, the appellant's eldest son asked whether he, the mother of his child, the child and the complainant could move into the appellant's home temporarily. The appellant agreed and moved out of his own house to live at the home of his friend, Ricco, in the same city.
[6] The complainant slept on a pullout mattress in the living room at the appellant's home.
The offence alleged
[7] The complainant woke up around 11:00 a.m. on March 23, 2007. The appellant was sitting on the sofa at the foot of her bed watching television. When the complainant returned from the bathroom, the appellant asked her whether she wanted a massage. The complainant declined the offer and went back to sleep.
[8] The complainant awakened a second time. The appellant was rubbing her back. She told him to stop and rolled over on her back. The appellant then climbed on top of her. He held her down with his chest. Over her protests and physical resistance, he put his hand up her shirt and felt her breasts over her bra. The appellant then slid his hand down the complainant's pants, inserted his fingers in her vagina, pried her legs open and started to unbutton his pants. The appellant stopped when someone knocked at the front door.
[9] Shortly after the alleged incident, the complainant disclosed her allegations to others. She and the others, who had recently moved into the appellant's home, moved out.
The position of the defence
[10] The appellant testified in his own defence. He denied the complainant's allegations. He advanced an alibi. At first, the appellant claimed that he was out of the country on March 23, 2007. Later, he admitted that he was in the city where the offence occurred, Brantford, on March 23, 2007, but claimed that he did not go to his house that day. He divided his time between moving trailers for his employer and resting at Ricco's place. [page342]
[11] The appellant also called several witnesses who testified about his good reputation in the local Spanish- speaking community. The Grounds of Appeal
[12] The appellant advances several grounds of appeal, which I would consolidate and paraphrase as these allegations of error: (i) excluding the appellant from the courtroom at the request of the prosecutor during cross-examination and from the pre-charge conference; (ii) failing to curtail the prosecutor's cross-examination of the appellant when it strayed into impermissible subjects like propensity and access to disclosure; and (iii) failing to properly instruct the jury on the relationship between reasonable doubt, alibi and the other defence evidence, and about the adverse inference associated with the late disclosure of the appellant's alibi. Analysis
Ground #1: Exclusions of the appellant during trial
[13] A brief description of the circumstances in which each exclusion occurred is essential to an understanding of this ground of appeal.
The exclusion during cross-examination
[14] During cross-examination, the prosecutor sought to put a MapQuest document to the appellant to challenge his testimony about the distances the appellant said he travelled while making some deliveries in Brantford on March 23, 2007. In the presence of the jury, the trial judge asked about the relevance of the evidence to be elicited by the proposed cross- examination. The prosecutor asked that the jury be excluded for the discussion. The judge sent the jury to the jury room.
[15] After the jury had retired, the trial judge asked the prosecutor whether he wanted the witness excluded during the discussion. The prosecutor confirmed that the witness should be excluded. The trial judge ordered the appellant to step into the hallway while the discussion took place. The appellant complied. The appellant's counsel said nothing.
[16] In the appellant's absence, the trial judge told the prosecutor that he had not yet laid the groundwork for the proposed cross-examination. When the trial judge directed the appellant's [page343] return to the courtroom, the appellant's counsel (not counsel on appeal) raised a disclosure issue: the prosecutor had not previously disclosed some cellphone records that had been made a trial exhibit a few minutes earlier. The appellant remained outside the courtroom. The trial judge permitted trial counsel to speak to the appellant about a specific telephone number that appeared in the records, even though the appellant was under cross-examination at the time. The appellant then returned to the courtroom.
[17] The appellant's exclusion during cross-examination lasted for nine minutes.
The exclusion from the pre-charge conference
[18] After counsel had finished their closing addresses to the jury, the trial judge summoned them to his chambers to discuss his final instructions to the jury. The entire pre- charge conference took place in the judge's chambers. The appellant was absent.
[19] When the trial resumed the following day, neither counsel said anything about the pre-charge conference or the appellant's absence from it. The trial judge provided the jury with a written copy of his charge and a decision tree for their assistance during their deliberations. Neither counsel objected to the content of the charge to the jury.
The positions of the parties on appeal
[20] The parties agree that the appellant's exclusions during cross-examination and from the pre-charge conference contravened s. 650(1) of the Criminal Code. They disagree about the availability of the procedural proviso in s. 686(1)(b)(iv) to save the verdict from reversal on this ground.
[21] For the appellant, Mr. Aly reminds us of the bedrock principles that underlie an accused's right to be present during the whole of the trial. The right to be present ensures that an accused hears the case advanced by the prosecutor, and acquires first-hand knowledge of it as an ear and eye witness during its unfolding. The requirement that the accused be present ensures the appearance of fairness of the criminal trial process.
[22] To determine whether s. 686(1)(b)(iv) should be applied, Mr. Aly says, we should consider all the circumstances of each exclusion and assess their individual and cumulative effect on the principles that underlie the appellant's right to be present.
[23] The exclusion during cross-examination meant that the appellant was unaware of the discussion about the admissibility [page344] of the MapQuest map and the Bell Security records. Further, this exclusion deprived the appellant of the opportunity to instruct his counsel about the remedies counsel should seek for the prosecutor's failure to make timely disclosure of the Bell Security records.
[24] The exclusion from the pre-charge conference meant that the appellant had no input into the content of the final jury instructions. The jury would decide, on the basis of those instructions, whether he was guilty or not guilty of the offence charged. When the trial resumed in his presence, no one said anything about what happened at the pre-charge conference.
[25] The appellant says that, taken together, these exclusions impaired the fairness of his trial.
[26] On behalf of the respondent, Mr. Tweney urges the application of s. 686(1)(b)(iv) to preserve the verdict reached by the jury at trial.
[27] Mr. Tweney submits that the exclusion during cross- examination had no effect on the evidentiary landscape of the appellant's trial, caused no actual prejudice and did not impair the fairness of the trial. The initial discussion about MapQuest occurred before the exclusion. The appellant agreed with the facts the prosecutor sought to establish by use of the MapQuest document, both before and after the exclusion. In other words, the exclusion changed nothing. Further, the appellant's own counsel initiated the discussion, in the appellant's absence, about late disclosure of the Bell Security records. The trial judge permitted counsel to discuss these records with the appellant, even though the appellant was under cross-examination. Defence counsel raised no objection to the exclusion when it began and extended it when he raised his complaint about late disclosure.
[28] In connection with the appellant's exclusion from the pre-charge conference, Mr. Tweney repeats that defence counsel was present throughout the discussion and did not object to the venue or to his client's absence from the conference. He argues that we cannot assume prejudice without evidence of what actually occurred, especially where trial counsel did not object to the charge that was provided to the jurors in writing. Nothing that occurred altered the course of the trial, or the defence conduct of it, because the evidence and final addresses had already been completed.
The governing principles
[29] The parties agree that both exclusions of the appellant contravened his right of presence under s. 650(1) of the Criminal Code [page345] and fell outside the exceptions in s. 650(2). Thus, we are required to decide whether the proviso of s. 686(1)(b)(iv) can be invoked to preserve the finding of guilt made by the jury at trial.
[30] Section 686(1)(b)(iv) is permissive. By its terms, the subparagraph permits, but does not require, a court of appeal to dismiss an appeal where three conditions are met: (i) a procedural irregularity occurred at trial; (ii) the trial court had jurisdiction over the class of offence of which the appellant was convicted; and (iii) the court of appeal is satisfied that the appellant suffered no prejudice from the procedural irregularity.
[31] Previous jurisprudence of this court confirms that any error or irregularity to which the proviso may apply must be one that is procedural, rather than substantive in nature, albeit an irregularity sufficiently serious that it can be characterized as fundamental in nature and results in a loss of jurisdiction: R. v. Cloutier, 1988 199 (ON CA), [1988] O.J. No. 570, 43 C.C.C. (3d) 35 (C.A.), at p. 48 C.C.C. See, also, R. v. Joinson, 1986 1195 (BC CA), [1986] B.C.J. No. 1333, 32 C.C.C. (3d) 542 (C.A.), at pp. 547-48 C.C.C. Among the procedural irregularities to which s. 686(1)(b)(iv) can apply is a breach of s. 650(1) by exclusion of an accused from a part of his or her trial: Cloutier, at p. 49 C.C.C.; R. v. Simon (2010), 104 O.R. (3d) 340, [2010] O.J. No. 4723, 2010 ONCA 754, 263 C.C.C. (3d) 59, at para. 122.
[32] The superior court of criminal jurisdiction has jurisdiction to try any indictable offence under s. 468 of the Criminal Code. It also has jurisdiction over the person of any accused who has been ordered to be tried by the superior court of criminal jurisdiction: Criminal Code, s. 470(b)(i).
[33] The term "prejudice" in s. 686(1)(b)(iv) refers not only to prejudice to an individual accused's ability to properly defend her or himself and to receive a fair trial, but also to prejudice in the broader sense of prejudice to the appearance of the due administration of justice: R. v. Kakegamic, [2010] O.J. No. 5671, 2010 ONCA 903, 265 C.C.C. (3d) 420, at para. 36.
[34] Under s. 686(1)(b)(iv), demonstration of a procedural error of the nature described in the subparagraph creates an inference of prejudice without requiring the appellant to establish specific prejudice in every case. This inference of prejudice is rebuttable: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, [2001] S.C.J. No. 83, at para. 16. The test of prejudice under s. 686(1)(b)(iv) is the [page346] same as the "no substantial wrong or miscarriage of justice" standard in s. 686(1)(b)(iii): Khan, at para. 16.
[35] The concluding words of s. 686(1)(b)(iv) make it clear that, although an appellant need not show that she or he has suffered actual prejudice in order to exclude the application of the proviso, if the court of appeal concludes that the appellant has suffered no prejudice from the procedural irregularity, the court of appeal may dismiss the appeal: Cloutier, at p. 51 C.C.C.
[36] It is also important to remember that in determining whether the appellant has suffered any prejudice as a result of the procedural error, it is the opinion of the court of appeal that prevails, not the perception of the appellant that she or he has suffered prejudice: Cloutier, at p. 51 C.C.C. The opinion of the court of appeal is informed by all the circumstances, including but not only the factors listed in Simon, at para. 123.
The principles applied
[37] The determination of this ground of appeal requires us to decide whether the exclusions, alone or together, prejudiced the appellant or impaired the appearance of the due administration of justice to such an extent that the jury's verdict cannot stand.
[38] Consider first the exclusion of the appellant during part of his cross-examination by the prosecutor at trial.
[39] When issues arise about the propriety of an actual or proposed line of cross-examination of a witness in the witness box, it is commonplace for one or both parties to ask and the trial judge to direct the jury and witness to retire while submissions and a ruling are made on the dispute. For the ordinary witness, exclusions do not amount to a procedural irregularity. But an accused who testifies on his or her own behalf is not an ordinary witness. An accused who takes up the mantle of a witness remains an accused whose presence for the whole of the trial is required by s. 650(1) of the Criminal Code. Despite the concurrence of counsel about a witness' exclusion, trial judges must remain vigilant to ensure that the witness they are excluding is not an accused.
[40] The appellant's exclusion during cross-examination began when the prosecutor responded to the trial judge's query about whether the witness should be excluded during the discussion. As I have said, trial counsel for the appellant said nothing.
[41] The issue raised by the prosecutor that formed the basis for the appellant's exclusion was settled quickly. When the trial judge directed that the appellant return to the courtroom, trial counsel for the appellant raised an issue about delayed [page347] disclosure of some Bell Security records. Counsel discussed the issue and the trial judge ruled on it in the appellant's absence. The ruling permitted defence counsel to discuss the subject with the appellant even though the appellant was in the midst of cross-examination.
[42] This exclusion lasted nine minutes. Defence counsel was present throughout and made submissions on the appellant's behalf. Most of the time during the appellant's absence was taken up in the discussion of an issue raised by defence counsel.
[43] Defence counsel did not object to the appellant's exclusion. His submissions on both issues discussed in the appellant's absence were not affected by the exclusion. None of the discussions had any effect on the conduct of the appellant's defence or impaired its advancement.
[44] What happened here was that the intentional and understandable exclusion of a witness resulted in the exclusion of the appellant and a breach of s. 650(1) of the Criminal Code. This should not have occurred. An accused has the right to be present throughout the entirety of his or her trial, including during discussions pertaining to cross-examination. Nonetheless, in the circumstances of this case as I have described them, if this nine-minute exclusion stood alone, I would apply s. 686(1)(b)(iv) to the procedural irregularity and preserve the finding of guilt on the ground that the appellant suffered no prejudice from it.
[45] My conclusion is different, however, in connection with the second exclusion: the result of the trial judge's decision to conduct the entire pre-charge conference in chambers rather than in open court, on the record, in the presence of the appellant and in the absence of the jury.
[46] Pre-charge conferences to discuss the content of final [See Note 2 below] instructions to the jury are part of an accused's trial, thus are subject to the requirement of s. 650(1) of the Criminal Code that the accused be present. These conferences must be held in open court, in the presence of the accused, counsel, the trial judge and the court reporter. The only trial participant excluded from the pre-charge conference is the jury.
[47] Absent exceptional circumstances, s. 686(1)(b)(iv) will not save a breach of s. 650(1) of the Criminal Code caused by the conduct of the pre-charge conference in chambers in the absence of the accused. [page348]
[48] In this case, the record discloses nothing about what happened at the pre-charge conference, nothing about the subjects discussed, nothing about the submissions made and nothing about any agreements that may have been reached. We can infer, from what occurred later, that, in the end, counsel were satisfied with the contents of the charge: neither objected to it. Perhaps the trial judge provided a draft of his proposed charge to counsel, as many judges do, to focus the pre-charge discussion. But of that, on this record, we cannot be certain. Unlike in Simon, where an affidavit from trial counsel furnished some information about what happened in chambers, the cupboard here is bare. Unlike in Simon, where the pre-hearing conference conducted in chambers was preliminary and followed by a full discussion in open court in the presence of the accused, the entire conference in this case took place in chambers in the appellant's absence.
[49] The trial judge decided to conduct the pre-charge conference in chambers. He directed counsel to attend at a specified time. Neither counsel objected. The announced purpose of the conference was to discuss the contents of the judge's charge, the only segment of the trial that remained to be completed before the jury retired to decide the case. When proceedings recommenced the following morning, no one said anything about what happened during the pre-charge conference. No one filed, as lettered exhibits, any draft instructions that may have been provided to counsel for discussion there.
[50] The pre-charge conference took place after the closing addresses of counsel. With the evidence and addresses complete, whatever happened at the pre-charge conference in the appellant's absence could not have affected the conduct of the defence. Some might also query whether the presence of an accused would have any meaningful impact on the submissions made by defence counsel at the conference. But s. 650(2) makes no pre-charge conference exception to the general requirement that an accused be present "during the whole of his or her trial".
[51] The appellant's absence from the pre-charge conference and the conduct of the conference in the judge's chambers impaired the appearance of fairness, compromised the transparency of the trial proceedings and was at odds with the open court principle. Proof of actual prejudice is not a condition precedent to demonstration of a miscarriage of justice. An appearance of unfairness will suffice: R. v. Hertrich, 1982 3307 (ON CA), [1982] O.J. No. 496, 67 C.C.C. (2d) 510 (C.A.), at p. 543 C.C.C.
[52] Final instructions to a jury in a criminal case are of the utmost importance to the person whose liberty is at stake. Those [page349] instructions explain the basis upon which the accused's liability will be decided and his or her defence assessed. An accused is entitled to hear why some instructions are included and others are omitted from the charge -- first- hand, the complete version and not a synopsis after the fact. The exclusion of an accused from the entire pre-charge conference undermines both the appearance and the reality of the due administration of justice.
[53] I would give effect to this ground of appeal and order a new trial as a result.
Ground #2: Cross-examination of the appellant
[54] Since another trial may take place on the indictment, I will also consider the grounds of appeal that relate to the propriety of the cross-examination of the appellant and the adequacy of the trial judge's final instructions to the jury about the position of the defence.
[55] Some further background is necessary to appreciate the complaints about the prosecutor's cross-examination of the appellant. The complaints relate to two issues: the character of the appellant and prosecutorial disclosure.
The character of the appellant
[56] As the cross-examination of the appellant began, the prosecutor asked whether the complainant was an "attractive young woman" or a "fairly attractive young woman". The appellant agreed with the prosecutor's suggestion. The prosecutor then confronted the appellant with his descriptions of the complainant as "trouble" and not "a very nice lady" in his statement to the police. The appellant explained that one of his sons had told him that "a bunch of guys" had come over to the house. The appellant was also asked about his reaction to the sight of another young woman, also "attractive", walking around his house in her panties and bra. The appellant responded: "Yeah, yeah, I got no problem".
[57] In his police interview, the appellant explained that he could not have committed the offence charged. He was an "old man" who didn't "do sex with nobody". On three occasions during the interview, the appellant told the interviewer that he had a wife. The prosecutor then explored the appellant's marital history, which included an ex-wife, an estranged wife living in Nicaragua and a Florida girlfriend.
[58] Defence counsel did not object to the cross-examination. [page350]
The disclosure issue
[59] Defence counsel provided two notices of alibi to the Crown Attorney's office. The first indicated that the appellant was out of Canada on March 23, 2007, the second that the appellant was in Brantford that day, but was making deliveries at the relevant time.
[60] The prosecutor cross-examined the appellant briefly about his receipt and review of disclosure several months before the first alibi notice was provided to the Crown Attorney.
[61] Again, defence counsel did not object to the cross- examination.
The jury instructions
[62] The trial judge instructed the jury on the use that they could make of evidence of good character adduced on the appellant's behalf. He pointed out that evidence of the appellant's good character was relevant to the improbability that the appellant committed the offence and to the appellant's credibility as a witness at trial. The instructions were silent about any evidence that tended to rebut the claim of good character and the diminished propensity value of evidence of good character in prosecutions involving allegations of sexual misconduct by adults with young persons.
[63] The trial judge also instructed the jury on the defence of alibi, but said nothing about the timing of the alibi notices or the fact that the appellant had received and reviewed the prosecution's disclosure prior to giving his first alibi notice.
[64] Neither counsel at trial objected to the charge to the jury.
The governing principles
[65] An accused who testifies in his or her own defence occupies a dual role in a criminal trial. As a witness, an accused is subject to cross-examination, like any other witness who testifies at trial. But, unlike any other witness who testifies at trial, an accused is subject to certain protections to ensure that the trier of fact does not decide the case on the basis of a chain of reasoning that the law forecloses.
[66] As a general rule, the prosecutor is required to establish an accused's guilt by the introduction of relevant, material and admissible evidence of what the accused said or did, not by evidence that shows the kind of person the accused is and asks the trier of fact to infer guilt on the basis that the accused acted in accordance with his or her character. [page351]
[67] Sometimes, however, an accused will adduce evidence of good character and invite the trier of fact to use that evidence circumstantially to enhance the improbability that she or he committed the offence and to support her or his credibility as a witness. An accused who adduces evidence of good character puts his or her character in issue and opens the door to cross-examination on prior conduct, including on prior lies: R. v. McNamara (No. 1), 1981 3120 (ON CA), [1981] O.J. No. 3254, 56 C.C.C. (2d) 193 (C.A.), at p. 350 C.C.C.; R. v. Nealy, 1986 4694 (ON CA), [1986] O.J. No. 997, 30 C.C.C. (3d) 460 (C.A.), at pp. 464-65 C.C.C.
[68] In the prosecution of sexual offences, questions that ask an accused whether he considers the complainant "attractive" are generally impermissible. Sometimes, the questions are ambiguous and unfair. But, more importantly, the questions, freighted with a stereotypical assumption, seek answers that are irrelevant: R. v. F. (M.), [2009] O.J. No. 3441, 2009 ONCA 617, 253 O.A.C. 12, at paras. 20-25; R. v. M. (G.), [2011] O.J. No. 3165, 2011 ONCA 503, at para. 54; R. v. Moose, [2004] M.J. No. 415, 2004 MBCA 176, 190 C.C.C. (3d) 521, at paras. 22-23.
[69] On the other hand, circumstances may occur in which cross-examination of a person accused of a sexual offence about the apparent attractiveness of the complainant may be permissible: M. (G.), at paras. 62-64. For example, the cross- examination may be permissible where the question about attractiveness is unambiguous and a comment about the complainant's attractiveness emerges as part of the complainant's narrative: M. (G.), at para. 63. Further, the cross-examination may be permissible in some cases where the accused has put his character for sexual morality in issue: M. (G.), at para. 64.
[70] Despite the exceptional circumstances described in the last paragraph, a trial judge should not permit a prosecutor to cross-examine an accused charged with a sexual offence about whether the accused considered the complainant "attractive". Answers to these or similar questions yield evidence that is neither relevant nor material. Prosecutors who seek to pursue this line of cross-examination and to argue that it falls within an exception to the general rule should invite the trial judge to exclude the jury and rule on the propriety of the proposed cross-examination in the absence of the jury after hearing submissions from counsel.
[71] Whether cross-examination of an accused about his or her receipt of and familiarity with prosecutorial disclosure is permissible or improper depends on the circumstances of each case: R. v. Thain, [2009] O.J. No. 1022, 2009 ONCA 223, 243 C.C.C. (3d) 230, at para. 24. One instance in which it may be [page352] appropriate for a prosecutor to refer in cross- examination to an accused's receipt of disclosure is to undermine a defence of alibi, thereby to contend that the accused has tailored his or her evidence to fit the Crown's disclosure: Thain, at para. 24; R. v. Khan, 1998 15007 (BC CA), [1998] B.C.J. No. 1450, 126 C.C.C. (3d) 523 (C.A.), at para. 50; R. v. Marshall (2005), 2005 30051 (ON CA), 77 O.R. (3d) 81, [2005] O.J. No. 3549 (C.A.), at paras. 74-75; and R. v. Simon, 2001 11996 (QC CA), [2001] J.Q. no 1328, 154 C.C.C. (3d) 562 (C.A.), at pp. 573-74 C.C.C.
[72] On the other hand, a prosecutor's cross-examination of an accused that is calculated to suggest to the jury that an accused's testimony was suspect because she or he had received disclosure, knew the prosecution's case and had not been asked to reveal her or his own case until testifying at trial is at once improper and potentially prejudicial: R. v. White (1999), 1999 3695 (ON CA), 42 O.R. (3d) 760, [1999] O.J. No. 258 (C.A.), at pp. 767-68 C.C.C.
[73] Where a complaint is made about the propriety of prosecutorial cross-examination of an accused, we must always keep in mind that improper cross-examination of an accused may taint a trial by causing actual prejudice to the accused or by creating the appearance of unfairness: White, at p. 764 C.C.C.
The principles applied
[74] I would not order a new trial on this ground despite the impropriety of the cross-examination of the appellant on whether he considered the complainant attractive.
[75] First, the appellant's police interview was played for the jury. The DVD and a transcript were filed as exhibits. During the interview, the appellant denied any improper conduct with the complainant. Among other things, the appellant made it clear that he considered the complainant promiscuous and unworthy of belief. Further, he suggested that he would not have committed the offence because he was a married man. The prosecutor was entitled to cross-examine the appellant on what he said when interviewed by the police and to demonstrate the falsity of some of the remarks the appellant made during that interview.
[76] The brief reference to the appellant's access to disclosure arose in connection with the appellant's notices of alibi. The cross-examination did not suggest, directly or by implication, that the appellant's evidence was less worthy of belief because he had received full disclosure of the prosecutor's case in advance of trial. The prosecutor was entitled to show through cross-examination that the alibi notices were given after the appellant was made aware of the complainant's allegations, including when and where she said that the assault occurred. [page353]
[77] Second, trial counsel for the appellant did not object to any of the cross-examination about which complaint is now made. Although failure to object cannot convert the improper into the acceptable, the lack of complaint affords some indication that trial counsel did not consider the cross- examination unfair or prejudicial.
[78] Third, the impugned parts of the cross-examination were brief, not lengthy, repetitive or protracted as sometimes occurs. In other words, this is not a case like R. v. Logiacco, 1984 3459 (ON CA), [1984] O.J. No. 15, 11 C.C.C. (3d) 374 (C.A.), where the cross-examination was persistent, abusive, demeaning, likely to distract the jurors from their task and apt to contribute to a manifest appearance of unfairness.
[79] We should also recall that this cross-examination took place during a trial in which the appellant put his character in issue: he said that he was simply not the type of person who would have sexual contact with a young person like the complainant. The prosecutor was entitled to test the veracity of this claim in cross-examination of the appellant.
[80] I would not order a new trial on this ground.
Ground #3: The jury instructions on the position of the defence
[81] The appellant finds fault with the trial judge's final instructions on several issues relating to the defence advanced at trial and the evidence relied upon in support of it. The result, the appellant says, is that the trial judge failed to properly equip the jury to assess the appellant's defence and thereby caused a miscarriage of justice.
[82] The several discrete complaints of non-direction and of non-direction amounting to misdirection are advanced for the first time on appeal. The same holds true for the overarching submission that the trial judge failed to put the position of the defence and the evidence supportive of it to the jury.
[83] Once again, the setting is important.
The background
[84] The appellant denied the complainant's allegations. He said he wasn't at the house when the offence occurred. Besides, he wasn't the kind of person to sexually assault teenaged girls. He testified and said he was elsewhere. Others gave evidence that he wasn't home that day. And some members of the local community gave evidence of his good character.
[85] On June 11, 2008, the appellant's trial counsel sent an alibi notice to the Crown Attorney. This notice indicated that the [page354] appellant had left Canada on March 22, 2007 to travel to the United States, where he was to deliver a load of flower pots. According to various receipts, he purchased fuel in the United States from March 23 to March 28, 2007. At trial, the appellant acknowledged that this version of events was incorrect.
[86] About two weeks later, trial counsel sent another alibi notice to the Crown Attorney. This notice included various records the appellant had compiled. The appellant's routed trip reports suggested that he picked up a load of flower pots in Brantford on March 22, 2007 and delivered them to a Florida customer on March 26, 2007. But the appellant's daily logs suggested that he was off-duty on March 22, 2007, that he worked in Brantford from 10:00 a.m. to noon on March 23, that he left for Florida on March 24 and that he arrived there on March 25.
[87] After another two weeks, trial counsel explained to the Crown Attorney that, after a review of his records, the appellant recalled that he was supposed to leave for Florida on March 23 but he was sick that day. He remained in Brantford that day and moved a couple of trailers before he returned to his friend Ricco's place for the rest of the day.
[88] In his evidence at trial, the appellant testified that he slept at Ricco's house on the night of March 22. When he woke up on March 23, the appellant felt ill. Instead of driving to Florida, he did some deliveries around Brantford between 10:30 a.m. and 12:15 p.m. He returned to Ricco's house for the rest of the day. He also tendered his cellphone records that showed a 23-minute call starting at 10:57 a.m. and no calls between 11:20 and 11:51 a.m.
[89] Several other witnesses testified on the appellant's behalf, including his employer and Ricco. His employer confirmed that the appellant got to work between 9:00 and 9:30 a.m. on March 23 and moved some trailers. The employer could not say where the appellant went or what he did between loads. Ricco said the appellant was away from his home between 10:00 a.m. and 1:00 p.m. on March 23.
[90] Other witnesses, including the appellant's sons, were called to testify about their knowledge of his activities on March 23, 2007. None saw him at his residence, but many of them had no specific recollection of the events of that day.
The jury instructions
[91] In his final instructions to the jury, the trial judge repeated twice the formula suggested by Cory J. in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26. In an early part of the charge, the trial judge referred to "evidence favouring [the [page355] appellant]" when he discussed the onus of proof. He emphasized that the jury were not permitted to decide the case simply by choosing the evidence favouring one side as opposed to the other.
[92] The trial judge approached the positions of the parties by reminding jurors that they were not to make their decision on the basis of whom they found more credible, the complainant or the appellant. He pointed out that the appellant's position was that the events alleged by the complainant did not occur: the appellant was not at his house when the assault occurred, if an assault actually happened.
[93] The trial judge also included an instruction about the use the jurors could make of the evidence of good character. He instructed the jurors that the evidence of good character may make it less likely that the appellant committed the offence and could itself create a reasonable doubt about his guilt. He also reminded the jurors that evidence of good character may make the appellant's testimony more worthy of belief.
[94] Neither counsel objected to the trial judge's final instructions.
The positions of counsel on appeal
[95] For the appellant, Mr. Aly advances three discrete, yet related, errors that he says had the effect of failing to put the defence position fairly and correctly before the jury.
[96] First, Mr. Aly submits, the trial judge failed to tell the jury that, apart from the appellant's testimony and the evidence of good character, the remainder of the evidence adduced on his behalf could itself raise a reasonable doubt about his presence at his house on March 23, and thus his commission of the offence.
[97] Further, Mr. Aly contends, the trial judge failed to link his instructions on reasonable doubt, especially the W. (D.) formula, to the alibi evidence adduced by the appellant.
[98] And finally, the judge also neglected to point out that the jurors could draw no inference adverse to the appellant because he lagged in providing his alibi to the police. The disclosure left plenty of time for investigation and that is all that counts.
[99] Mr. Tweney, for the respondent, resists the appellant's complaints of inadequacy in the trial judge's final instructions. Tested functionally, Mr. Tweney submits, the final instructions were neither incomplete nor misleading.
[100] Mr. Tweney says that, taken as a whole, the instructions made it clear, and the jury would have understood, that they were to make their decision on the basis of the evidence as a [page356] whole, that the burden of proof was on the Crown and that the appellant was required to prove nothing. The trial judge repeated twice the formula recommended in W. (D.). He made it clear to the jury that they were not to decide the case simply by comparing the competing versions of events of the principals and returning a verdict based on their preference. And the position of the defence was left to the jury in a way that attracted no objection from trial counsel.
[101] Mr. Tweney points out that no particular formula is prescribed for an instruction on an alibi. To be more specific, he says that the trial judge did not have to relate the defence of alibi to the instruction on reasonable doubt because the instructions as a whole made the point clear. Further, the trial judge was under no obligation to instruct the jury, expressly, that they could draw no adverse inference from the delay in disclosure of the appellant's alibi.
The governing principles
[102] In a jury trial in which credibility is an essential or a central issue, the trial judge must explain to the jury the relationship between their assessment of credibility and the burden and standard of proof they are to apply in making their decision. The word formula suggested by Cory J. in W. (D.) is one way to convey what the law requires: W. (D.), at pp. 757-58 S.C.R. But the W. (D.) formula is not the only way, as if some magic incantation: R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, [1994] S.C.J. No. 91, at p. 533 S.C.R.; R. v. S. (J.H.), [2008] 2 S.C.R. 152, [2008] S.C.J. No. 30, 2008 SCC 30, at para. 13.
[103] What must be made clear to the jury in the final instructions as a whole is that the burden of proof is borne by and never shifts from the Crown to prove each and every essential element of the offence beyond a reasonable doubt. Substance prevails, not the word formula used. In the end, what counts is whether, from what the judge said, the jury could not have been under any misapprehension about the correct burden and standard of proof to apply: W. (D.), at p. 758 S.C.R.; S. (J.H.), at para. 14; R. v. Y. (C.L.), [2008] 1 S.C.R. 5, [2008] S.C.J. No. 2, 2008 SCC 2, at para. 7.
[104] The principles that underlie W. (D.) are not restricted to cases where an accused testifies and where his or her evidence conflicts with evidence of witnesses for the prosecution. Where, on a vital issue, credibility findings must be made between conflicting evidence called by the defence or emerging from evidence favourable to the defence adduced as part of the Crown's case, the trial judge must relate the principle of reasonable doubt to [page357] those credibility findings: R. v. D. (B.), [2011] O.J. No. 198, 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114. What the jury must understand is that to find an accused not guilty, they need not believe the defence evidence on the vital issue; rather, it is enough that the conflicting evidence leaves them with a reasonable doubt about the accused's guilt in light of all the evidence: D. (B.), at para. 114.
[105] Where alibi evidence is adduced, the principles underlying W. (D.) are engaged, but it is not always necessary to expressly insert the W. (D.) formula in a discrete alibi instruction: R. v. Harriott (2002), 2002 23588 (ON CA), 58 O.R. (3d) 1, [2002] O.J. No. 387 (C.A.), at paras. 17-21.
[106] In instructing a jury on the defence of alibi, a trial judge may point out that a failure to disclose an alibi in sufficient time to permit its investigation by police is a factor that the jury may take into account in assessing the weight they will attribute to the alibi evidence: R. v. Russell; R. v. Dunbar, 1936 350 (BC CA), [1936] B.C.J. No. 4, 66 C.C.C. 306 (C.A.), at p. 322 C.C.C., affd 1936 323 (SCC), [1936] S.C.J. No. 50, 67 C.C.C. 28, at pp. 32-33 C.C.C.
The principles applied
[107] I would not give effect to this ground of appeal.
[108] This was not a complex case.
[109] The complainant alleged that she was sexually assaulted at the appellant's home shortly before noon on March 23, 2007. She said that the person who sexually assaulted her was the appellant.
[110] The appellant denied that he sexually assaulted the complainant. In support of his denial, he relied upon (i) his testimony that he was elsewhere in Brantford at the time the offence allegedly occurred; (ii) the testimony of other family members and residents of his home that he was not at home at the relevant time; (iii) evidence from witnesses about his good character and favourable reputation in the local Spanish-speaking community; and (iv) a submission that the complainant was unworthy of belief.
[111] The trial judge charged the jury twice in accordance with the regime suggested by Cory J. in W. (D.). In addition, the trial judge referred to the "evidence favouring the accused" in his instruction on the burden of proof. Such a description [page358] reasonably embraces all the evidence supportive of the defence position, including the appellant's alibi, the testimony of other family members and the evidence of good character. The W. (D.) instructions were admittedly less expansive, but I am not persuaded that the language used would have confused the jury or left them with the impression that the instruction applied only to the appellant's testimony.
[112] Further, when read as a whole, the instructions leave no doubt about the correct burden and standard of proof that the jurors were to apply in making their decision. The instructions emphasize that the jurors were not to decide the case by simply comparing the competing versions of events and resolving the conflict in favour of their preference. They were reminded at different places in the charge that the burden of proof was settled upon the Crown and never shifted. The jurors also had a written copy of the charge to help them during their deliberations.
[113] In addition, the trial judge gave a specific, perhaps overly favourable, instruction to the jury about the use they could make of the evidence of good character to conclude that commission of the offence by the appellant was unlikely and to enhance the appellant's credibility as a witness at trial. He made no mention, for example, of the common sense observation that the propensity value of character evidence as to morality may be of diminished weight in prosecutions for alleged sexual offences against young persons: R. v. Profit (1993), 1993 78 (SCC), 15 O.R. (3d) 803, [1993] 3 S.C.R. 637, [1993] S.C.J. No. 104, at pp. 637-38 S.C.R.
[114] Neither Crown counsel nor the trial judge said anything about the evidentiary significance of the timing of the alibi notices. Since nothing of evidentiary significance was suggested as a result of the delay, in delivery of the first notice, the trial judge was under no obligation to instruct the jury that the timing of the alibi notices was of no evidentiary import.
[115] It is of no little significance that trial counsel made no objection to the trial judge's charge.
[116] This ground of appeal fails. Conclusion
[117] For these reasons, I would allow the appeal on the ground that the entire pre-charge conference was conducted in the appellant's absence, set aside the conviction and order a new trial on the charge contained in the indictment.
Appeal allowed.
Notes
Note 1: This general rule in s. 650(1) of the Criminal Code is subject to the limited exceptions of s. 650(1.1)-(2). None of the exceptions applies in this case.
Note 2: The same rule applies to discussions about preliminary and mid-trial instructions.