Her Majesty the Queen v. A.G.

[Indexed as: R. v. G. (A.)]

Ontario Reports

Court of Appeal for Ontario,

Sharpe, Hourigan and Pardu JJ.A.

March 13, 2015

124 O.R. (3d) 758 | 2015 ONCA 159

Case Summary

Criminal law — Mistrial — Accused's mother and sister testifying as defence witnesses at accused's trial — Police court officer informing trial judge in presence of jury that sister was nodding to mother during [page759] mother's cross-examination — Trial judge excluding sister from courtroom as precaution and instructing jury that he was not making any finding that sister had attempted to communicate with mother — Trial judge not erring in dismissing defence application for mistrial — Trial judge's instruction adequately addressing any potential prejudice to accused.

Criminal law — Sentencing — Accused convicted of sexual assault and extortion of employee — Sexual assault conviction stayed and accused sentenced to 27 months' incarceration for extortion — Trial judge not erring in treating impact of offence on complainant as set out in victim impact statement as aggravating factor — Offence very serious and involving abuse of position of authority — Sentence within appropriate range.

Criminal law — Trial — Conduct of Crown — Crown's vigorous cross-examination of accused and defence witness crossing line at several points but being relevant to issue of credibility and not intended to demean or humiliate accused — Defence counsel not objecting to cross-examinations — Isolated incidents of impropriety not rendering trial unfair or resulting in miscarriage of justice.

Criminal law — Trial — Jury trial — Crown expert witness testifying at accused's sexual assault trial that male DNA from three different contributors was found on complainant's underwear but that sources could not be identified — Jury sending note to trial judge after witness' testimony inquiring whether washing underwear on delicate cycle would completely remove all traces of DNA — Trial judge properly refusing to put that question to witness — Questioning of witness by jury permissible in appropriate cases but proposed line of inquiry irrelevant.

The accused was charged with sexual assault and extortion. The complainant, who worked as a server at a club managed by the accused, stole a vodka cooler. She claimed that the accused threatened to call the police if she did not come to his home and that he then forced her to engage in fellatio and intercourse. The accused testified that the complainant showed up at his home unexpectedly after he discovered that she had stolen the cooler, begged him not to fire her or call the police, and started performing fellatio on him. The accused's mother and sister testified for the defence. During the mother's cross-examination, a court police officer informed the trial judge, in the presence of the jury, that the sister was nodding at the mother. The trial judge excluded the sister from the courtroom and instructed the jury that he had done so to ensure that there were no future concerns and that he was not making any finding that the sister had attempted to communicate with the mother. Defence counsel applied unsuccessfully for a mistrial. The accused was convicted of both offences. The sexual assault conviction was stayed, and the accused was sentenced to 27 months' incarceration for extortion. He appealed the conviction and the sentence.

Held, the appeals should be dismissed.

The Crown's cross-examination of the accused's sister was not improper because he asked her whether she believed the accused's version of events. The purpose of that question was not to impugn the accused's credibility or to require the witness to explain the accused's testimony. Rather, the Crown's position was that the accused's sister acted in a manner that was inconsistent with her testimony because she did not call the police when the accused reported that he [page760] had been sexually assaulted. The question was relevant to her own credibility. The Crown did not breach the accused's right to silence by asking him why he had not told the police that the complainant had sexually assaulted him when he was arrested, instead of talking about the complainant's theft. The Crown's suggestion that the accused's statements to the police were not consistent with his position at trial was not an attempt to extinguish his right to silence. The Crown's conduct crossed the line at several points. It was inappropriate for the Crown to impugn the credibility of the accused and his witnesses in sarcastic and disrespectful terms, and he used inflammatory language in both his cross-examination and his closing argument. However, defence counsel did not object at trial. The cross-examination of the complainant was also aggressive, and defence counsel suggested to her that she was not telling the truth. The primary issue at trial was credibility, and it would not have come as a surprise to the jury that the Crown's position was that the accused had fabricated his version of events. The accused's mother was an evasive and argumentative witness. The Crown's cross-examination was not intended to demean or humiliate the accused. The trial judge instructed the jury that the lawyers' questions did not constitute evidence. In all of the circumstances, the Crown's conduct did not render the trial unfair or result in a miscarriage of justice.

The trial judge did not err in failing to declare a mistrial. His mid-trial instruction adequately addressed any potential prejudice arising from the fact that the police court officer made the statement in the presence of the jury.

A Crown expert witness testified that male DNA from three different contributors was found on the complainant's underwear but that the source and profiles could not be determined. The day after the witness' testimony, the jury sent a note to the trial judge requesting clarification from the witness regarding that part of her evidence. They wanted to know whether washing underwear on a delicate cycle in a washing machine would completely remove all traces of DNA. The trial judge refused to put the question to the witness. He erroneously told the jury that they did not have the right to question a witness. Permitting a jury to ask questions of a witness is not prohibited. However, the decision to allow such questioning is within the discretion of the trial judge, and safeguards must be put in place to ensure that only admissible evidence is elicited and that the parties are not prejudiced. In this case, the proposed line of inquiry was irrelevant.

The trial judge did not err in taking into account, as an aggravating factor, the impact of the offence on the complainant as set out in her victim impact statement. There was no suggestion that he used that factor to increase the sentence to an inappropriate level. The offence was very serious and involved an abuse of a position of authority. The sentence was within the appropriate range.

Cases referred to

R. v. Andrade, 1985 3502 (ON CA), [1985] O.J. No. 968, 6 O.A.C. 345, 18 C.C.C. (3d) 41, 13 W.C.B. 289 (C.A.); R. v. Burke, [2002] 2 S.C.R. 857, [2002] S.C.J. No. 56, 2002 SCC 55, 213 D.L.R. (4th) 234, 290 N.R. 71, J.E. 2002-1232, 160 O.A.C. 271, 164 C.C.C. (3d) 385, 2 C.R. (6th) 1, 53 W.C.B. (2d) 300; R. v. Chiasson, [2009] O.J. No. 4682, 2009 ONCA 789, 258 O.A.C. 50; R. v. Daly, [1992] O.J. No. 1504, 57 O.A.C. 70, 16 W.C.B. (2d) 622 (C.A.); R. v. H. (R.), [2013] O.J. No. 871, 2013 ONCA 126; R. v. Henderson (1999), 1999 2358 (ON CA), 44 O.R. (3d) 628, [1999] O.J. No. 1216, 120 O.A.C. 99, 134 C.C.C. (3d) 131, 42 W.C.B. (2d) 138 (C.A.); R. v. Johnson, [2010] O.J. No. 4153, 2010 ONCA 646, 267 O.A.C. 201, 262 C.C.C. (3d) 404, 80 C.R. (6th) 145; 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. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76, 44 D.L.R. (3d) 351, 1 N.R. 322, 15 C.C.C. (2d) 524, 26 C.R.N.S. 1; [page761] R. v. Leduc (2003), 2003 52161 (ON CA), 66 O.R. (3d) 1, [2003] O.J. No. 2974, 174 O.A.C. 242, 176 C.C.C. (3d) 321, 18 C.R. (6th) 167, 108 C.R.R. (2d) 337, 58 W.C.B. (2d) 279 (C.A.); R. v. Lessard, 1992 3103 (QC CA), [1992] J.Q. no 821, J.E. 92-840, 49 Q.A.C. 119, 74 C.C.C. (3d) 552, 14 C.R. (4th) 330, EYB 1992-63928, 16 W.C.B. (2d) 502 (C.A.); R. v. Middleton, [2012] O.J. No. 3643, 2012 ONCA 523, 294 O.A.C. 82, 289 C.C.C. (3d) 55, 103 W.C.B. (2d) 411; R. v. Paris, 2000 17031 (ON CA), [2000] O.J. No. 4687, 138 O.A.C. 287, 150 C.C.C. (3d) 162, 48 W.C.B. (2d) 294 (C.A.); R. v. R. (A.J.) (1994), 1994 3447 (ON CA), 20 O.R. (3d) 405, [1994] O.J. No. 2309, 74 O.A.C. 363, 94 C.C.C. (3d) 168, 25 W.C.B. (2d) 142 (C.A.); R. v. Taylor, 2004 7199 (ON CA), [2004] O.J. No. 3439, 189 O.A.C. 388, 62 W.C.B. (2d) 618 (C.A.); R. v. Toutissani, [2007] O.J. No. 4364, 2007 ONCA 773; R. v. Turcotte, [2005] 2 S.C.R. 519, [2005] S.C.J. No. 51, 2005 SCC 50, 260 D.L.R. (4th) 1, 339 N.R. 32, [2006] 2 W.W.R. 1, J.E. 2005-1769, 216 B.C.A.C. 1, 45 B.C.L.R. (4th) 197, 200 C.C.C. (3d) 289, 31 C.R. (6th) 197, 135 C.R.R. (2d) 256, EYB 2005-95305, 66 W.C.B. (2d) 447; R. v. Varga (1994), 1994 8727 (ON CA), 18 O.R. (3d) 784, [1994] O.J. No. 1111, 72 O.A.C. 141, 90 C.C.C. (3d) 484, 30 C.R. (4th) 78, 23 W.C.B. (2d) 531 (C.A.); R. v. Yakeleya, 1985 5993 (ON CA), [1985] O.J. No. 144, 9 O.A.C. 284, 20 C.C.C. (3d) 193, 46 C.R. (3d) 282, 14 C.R.R. 381, 14 W.C.B. 255 (C.A.)

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, ss. 686(1) (a)(iii), 718.2 [as am.], 722 [as am.]

Authorities referred to

Hill, S. Casey, David M. Tanovich and Louis P. Strezos, McWilliams' Canadian Criminal Evidence, 5th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2013)

APPEAL by the accused from the conviction entered by J.R. Henderson J. of the Superior Court of Justice, sitting with a jury, on February 25, 2011, and the sentence imposed on September 10, 2012.

Vincenzo Rondinelli, for appellant.

Stacey D. Young, for respondent.

The judgment of the court was delivered by

HOURIGAN J.A.: —

Introduction

[1] The appellant was convicted of one count of sexual assault and one count of extortion. The sexual assault conviction was stayed pursuant to the principles in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, [1974] S.C.J. No. 76. He was sentenced to 27 months' imprisonment.

[2] The appellant appeals his conviction on three grounds:

(i) the Crown's cross-examination of the defence witnesses was improper and resulted in a miscarriage of justice; [page762]

(ii) the trial judge erred in refusing to declare a mistrial as a consequence of an interruption in the testimony of a defence witness; and

(iii) the trial judge erred in not allowing the jury to ask a DNA expert witness a question.

[3] The appellant also seeks leave to appeal his sentence. He submits that the trial judge erred in principle by relying on the complainant's victim impact statement as an aggravating factor and in making factual findings that lacked an evidentiary basis.

[4] For the reasons that follow, I would dismiss both the conviction appeal and the sentence appeal.

Background Facts

[5] The complainant worked part-time as a server at a club. The appellant was the manager of the club.

[6] On October 8, 2009, the appellant telephoned the complainant at her home about alcohol that was missing from the club. The appellant and the complainant offered competing versions of the details of that call and the events that followed.

[7] According to the complainant, during the phone call the appellant angrily confronted her about a missing vodka cooler. She admitted to taking one cooler and said that she would reimburse the club. She claimed the appellant said that he had videotaped evidence of her stealing the cooler and if she did not come to his home within 20 minutes he would call the police.

[8] The complainant drove to the appellant's home. She testified that when she arrived she begged him not to inform the police. He told her that she had two options: either she would be arrested or he would "own" her. The complainant believed the reference to being "owned" meant working extra shifts or doing cleaning work at the club, so she told the appellant that he "owned" her.

[9] At that point, according to the complainant, the appellant grabbed the back of her shirt and attempted to pull it off. She asked what he was doing and he responded: "Well, I own you." When she said that was not what she thought he meant, he replied: "Well . . . I guess you want to go to jail." She begged him not put her in that position but he proceeded to take her to his bedroom and remove her pants. At some point he also removed her bra.

[10] The complainant's evidence was that once inside the bedroom the appellant sexually assaulted her. He forced her to engage in fellatio and intercourse. After a few minutes of [page763] intercourse, he told her to get dressed. She was not sure if he ejaculated and she did not see if a condom was used. The appellant had a phone in his hand or close by him throughout the sexual assault. He repeatedly threatened to call the police.

[11] After leaving the appellant's residence, the complainant went to her mother's boyfriend's home and reported the sexual assault to her mother. A 911 call was made and the complainant was taken to the hospital, where a sexual assault kit was completed. Swabs were taken from the complainant's chin, neck and breasts, and her underwear was seized.

[12] The appellant offered a very different version of events. He testified that he was at the club with his sister when he called the complainant to inquire about four missing vodka coolers. She initially denied taking the coolers but admitted to the theft when he threatened to call the police. He told her that she was fired and that he would mail her last cheque.

[13] The appellant did not expect to hear from the complainant again and was surprised when she showed up at his home at around 7:00 p.m. that evening. According to the appellant, the complainant begged him not to fire her or call the police. He told her that it was too late, she was already fired and he and his sister had not decided if they were going to call the police. The appellant claimed the complainant then put her arm around his waist and tried to kiss him while rubbing his penis through his track pants. The appellant pushed her back and told her to leave.

[14] The appellant testified that the complainant then backed him into a chair and kissed him again. She pulled out his penis and put it in her mouth. The appellant pushed the complainant off and told her to get out or he would call the police. Before leaving the appellant's residence, the complainant told him that he would "regret this".

[15] The appellant was arrested the next day and his clothing was seized.

[16] At trial, the complainant's mother testified on behalf of the Crown. She said that on the evening of October 8, 2009, her daughter received a phone call and became very upset. She overheard the complainant begging and pleading as she spoke on the phone. After the call, the complainant rushed out of the house. When the complainant arrived at her mother's boyfriend's home later that evening, she was crying and shaking. Her hair, which had been in a ponytail when she left, was loose and dishevelled.

[17] The appellant's sister testified on behalf of the defence that she was with her brother when he called the complainant at [page764] approximately 6:00 p.m. on October 8, 2009. Her brother told the complainant that she was fired for stealing coolers and that they were going to call the police. The appellant's sister testified that when she saw her brother later that evening, he told her that the complainant had been at his house begging for her job back and had made sexual advances and tried to perform fellatio on him.

Positions of the Parties

[18] The appellant submits that the overall conduct and tenor of the Crown's cross-examination of the defence witnesses was so improper and prejudicial that it rendered the trial unfair and resulted in a miscarriage of justice. Further, the trial judge erred in not declaring a mistrial after a court police officer interrupted the Crown's cross-examination of the appellant's mother to inform the court that he saw the appellant's sister, who was present in the body of the court, nod to her mother multiple times as she testified. The trial judge also erred in failing to allow the jury to ask a question of a DNA expert after she had testified.

[19] The appellant seeks leave to appeal his sentence on the basis that the trial judge erred in principle in relying on the complainant's victim impact statement as an aggravating factor and in finding there was significant psychological and emotional pressure on the complainant without an evidentiary basis to support this finding.

[20] The Crown submits that while some questions posed by the trial Crown during cross-examination may have been unnecessary or improper, they did not deprive the appellant of a fair trial or result in a miscarriage of justice. As a result, there is no basis for appellate intervention. The Crown argues that there was no error in how the trial judge dealt with the mistrial application or the question from the jury.

[21] The Crown further submits that the sentence is fit and that the trial judge did not make any error in principle.

Analysis

(i) Cross-examination by the Crown

[22] The appellant submits that he was denied a fair trial because the Crown's cross-examination of the defence witnesses crossed the permissible bounds of advocacy and resulted in a miscarriage of justice. In considering whether cross-examination resulted in a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, the appellate court must draw the line between conduct that is merely improper and conduct that compromises trial fairness. [page765] Only the latter will justify ordering a new trial. As stated by Labrosse J.A. in R. v. Henderson (1999), 1999 2358 (ON CA), 44 O.R. (3d) 628, [1999] O.J. No. 1216 (C.A.), at pp. 639-40 O.R.:

The line between Crown counsel conduct that is merely inappropriate and conduct that is so prejudicial that it deprives the accused of a fair trial is not easily drawn: see R. v. Daly (1992), 57 O.A.C. 70 and R. v. Yakeleya (1985), 1985 5993 (ON CA), 20 C.C.C. (3d) 193, 14 C.R.R. 381 (Ont. C.A.). This line is particularly difficult to draw in cases that essentially turn on the credibility of Crown and defence witnesses. In such cases, there often appears to be a temptation to cross the line in an effort to attack the credibility of a witness. The prejudice that results is not easily measured. Respect for the administration of justice is not enhanced where the courts appear to condone improper conduct.

[23] Justice Doherty described the role of an appellate court in addressing an allegation of Crown misconduct in the manner of cross-examination in R. v. R. (A.J.) (1994), 1994 3447 (ON CA), 20 O.R. (3d) 405, [1994] O.J. No. 2309 (C.A.), at p. 412 O.R.:

Crown counsel is entitled, indeed in some cases expected, to conduct a vigorous cross-examination of an accused. Effective cross-examination of an accused serves the truth-finding function as much as does effective cross-examination of a complainant.

There are, however, well-established limits on cross-examination. Some apply to all witnesses, others only to the accused. Isolated transgressions of those limits may be of little consequence on appeal. Repeated improprieties during the cross-examination of an accused are, however, a very different matter. As the improprieties mount, the cross-examination may cross over the line from the aggressive to the abusive. When that line is crossed, the danger of a miscarriage of justice is very real. If improper cross-examination of an accused prejudices that accused in his defence or is so improper as to bring the administration of justice into disrepute, an appellate court must intervene: R. v. Fanjoy, 1985 53 (SCC), [1985] 2 S.C.R. 233, 21 C.C.C. (3d) 312; R. v. Ruptash (1982), 1982 ABCA 165, 68 C.C.C. (2d) 182 at p. 189 (Alta. C.A.).

[24] The failure of defence counsel to object at trial to the impugned cross-examination is a relevant consideration, but the lack of an objection does not immunize the cross-examination from appellate scrutiny: R. (A.J.), at p. 416 O.R.; R. v. Varga (1994), 1994 8727 (ON CA), 18 O.R. (3d) 784, [1994] O.J. No. 1111 (C.A.), at p. 797 O.R.; and R. v. Middleton, [2012] O.J. No. 3643, 2012 ONCA 523, 289 C.C.C. (3d) 55, at para. 58.

[25] As noted, improper cross-examination does not necessarily lead to appellate intervention. In determining whether the cross-examination at issue resulted in a miscarriage of justice, the appellate court must look at the overall effect of the improper questions in the context of the full cross-examination and the entire trial: R. v. Daly, [1992] O.J. No. 1504, 57 O.A.C. 70 (C.A.), at para. 27. [page766]

[26] With these legal principles in mind, I turn to a consideration of the impugned cross-examination in the present case. The appellant raises four objections to the Crown's cross-examination:

(i) the Crown invited the appellant's sister to comment on the veracity of the appellant's evidence;

(ii) the cross-examination of the appellant impinged on his right to silence because the Crown questioned him as to why he did not tell the police when he was arrested that he was the one who was sexually assaulted;

(iii) the cross-examination of the appellant was calculated to demean and humiliate him. The Crown engaged in argument and offered his personal opinion regarding the veracity of the appellant's evidence. Examples of this conduct include calling the appellant a liar and a scammer; asking the appellant "what tawdry movie does that scene come from?" when the appellant testified that it was the complainant who sexually assaulted him; and opining that no one would believe "such an outrageous story as you've told"; and

(iv) the cross-examination of the appellant's mother and sister was laced with sarcasm. The Crown also offered his opinion on the veracity of their evidence. Examples of this conduct include asking the appellant's sister why he had to "drag" her evidence out of her; commenting that he had never heard of a woman insisting that she perform oral sex and commenting to the appellant's mother that the Crown's questions would only be confusing to someone who was intent on not telling the truth.

[27] I reject the argument that questioning the appellant's sister regarding whether she believed her brother's version of events was improper. It is generally impermissible to ask one witness to comment on the veracity of another witness's evidence: R. v. H. (R.), [2013] O.J. No. 871, 2013 ONCA 126, at para. 3. However, in this instance, the purpose of the question was not to impugn the credibility of the appellant or to require the witness to explain her brother's testimony. There was no question that the witness believed her brother; she was not being invited to attack his credibility. Rather, when this question is considered in the context of the full cross-examination, it is clear that the Crown's position was that the appellant's sister acted in a manner that was inconsistent with her testimony because she did not call the police when her brother reported that he had been sexually assaulted. The question was relevant [page767] to her own credibility rather than that of the appellant, and was not improper.

[28] I also reject the argument that the Crown's questioning of the appellant regarding his statements to the police at the time of his arrest breached his right to silence. This portion of the cross-examination proceeded as follows:

Q. And upon your arrest by Detective Jason Myers, you chose to talk to him about her stealing, rather than her sexually assaulting you. Right?

R. Because if we would have fired her when we caught her stealing, none of this would have happened.

S. In other words, you are being led away in handcuffs, you've just been told . . . you're under arrest for sexual assault and extortion . . .

A. Of.

Q. . . . by [the complainant], and surely -- surely it would occur to you to say -- what the devil's going on? I'm the guy who got sexually assaulted. You've got the wrong man here, unless the police specialize in arresting victims instead of accuseds. Is that what the story is?

R. No, the story is, is they arrested me and then Mr. Myers told me that if I wanted a lawyer, I could get a lawyer. But as soon as he said the word "extortion", I didn't know what he was actually talking about, about extortion. I didn't know if all of a sudden we started talking about money, if I'm extorting her out of money, or what the -- what the word for the extortion was going for.

[29] In his closing argument, the Crown referred to the appellant's post-arrest statements to the police as part of the argument that the appellant's version of the assault was not believable. The Crown's point was that if the appellant had been the victim of a sexual assault, he would have told this to the police rather than mentioning the theft that provoked the complainant's dismissal. The Crown did not urge the jury to find the appellant guilty due to a failure to assert his innocence or a refusal to answer police questions: R. v. Johnson, [2010] O.J. No. 4153, 2010 ONCA 646, 262 C.C.C. (3d) 404, at paras. 69-71; R. v. Turcotte, [2005] 2 S.C.R. 519, [2005] S.C.J. No. 51, 2005 SCC 50, at paras. 41-42. This questioning also did not suggest that the jury should find the appellant guilty because he did not tell police about his own alleged assault until later.

[30] The Crown was entitled to cross-examine on the statements the appellant made to police, including omissions from the appellant's story. It is true that the Crown must tread carefully when doing so in order to avoid suggesting the accused has a positive obligation to answer police questions: R. v. Paris, 2000 17031 (ON CA), [2000] O.J. No. 4687, 150 C.C.C. (3d) 162 (C.A.), at paras. 41-42. However, when the questions at issue are considered in context, [page768] in my view the Crown did not cross this line. The Crown's suggestion that the appellant's statements to police were not consistent with his position at trial was not an attempt to "extinguish" his right to silence.

[31] Defence counsel did not object to this portion of the cross-examination at trial. In defence counsel's closing address to the jury, he also referred to the appellant's post-arrest statements and made various suggestions as to their significance. In fact, defence counsel urged the jury to find that these statements did constitute an implicit assertion of innocence. Defence counsel encouraged the jury to infer that when the appellant said "[i]t's not like she said" to police after his arrest, what he meant was: "[W]hen she told you that I sexually assaulted her, that's not what happened."

[32] Notwithstanding the foregoing, I am of the view that other portions of the cross-examination of the defence witnesses crossed the line of acceptable questioning and were improper. Indeed, Crown counsel on the appeal concedes this point.

[33] In particular, it was inappropriate for the trial Crown to opine with respect to the appellant's testimony that no one would believe "such an outrageous story as you've told".

[34] Similarly, the trial Crown should not have offered his opinion on the implausibility of the appellant's sister's testimony regarding a woman forcing oral sex on a man.

[35] The trial Crown's statement to the appellant's mother that his questions were only confusing to someone who was intent on not telling the truth was also inappropriate. I note that defence counsel immediately objected to this question and the trial judge ruled it improper.

[36] I also agree with the submission of the appellant that at times the Crown's questioning was sarcastic and disrespectful, and that he used inflammatory language in both his cross-examination and his closing argument.

[37] In considering whether this improper questioning resulted in a miscarriage of justice or impaired trial fairness, some additional context is important.

[38] First, I note that the defence did not object at trial to the cross-examination of the appellant now at issue or suggest that it was unfair or abusive. While a failure to object is not fatal, it does speak to the perception of the fairness of the questions at trial and in the context of the broader testimony: Middleton, at para. 58.

[39] Second, there was aggressive cross-examination of both the appellant and the complainant. The complainant was cross-examined for two and a half days. During the course of that [page769] examination, she was repeatedly admonished by defence counsel for "making speeches". Defence counsel also suggested to her that she was not telling the truth about what happened between her and the appellant. In his closing submission, defence counsel said that the complainant was playing the victim and that her testimony was full of lies.

[40] Third, the primary issue at trial was credibility. The versions of events provided by the appellant and the complainant were diametrically opposed. In these circumstances, it would have been obvious to the jury that both parties could not have been telling the truth: Daly, at paras. 28-29; R. v. Yakeleya, 1985 3478 (ON CA), [1985] O.J. No. 144, 20 C.C.C. (3d) 193 (C.A.), at p. 196. It could not have come as a surprise to the appellant or the jury that the Crown's position was that the appellant had fabricated his version of events: R. v. Khan, 1998 15007 (BC CA), [1998] B.C.J. No. 1450, 126 C.C.C. (3d) 523 (C.A.), at para. 19. The Crown's suggestions that the appellant was not being truthful should be assessed in light of this consideration.

[41] Fourth, on my reading of the transcript, the appellant's mother was a difficult witness. She was evasive and argumentative, and appeared to be reluctant to answer straightforward questions for fear that she would prejudice her son's defence.

[42] Finally, a number of other factors suggest the appellant did not suffer prejudice as a result of the Crown's questioning: the Crown did not otherwise attack the appellant's character; the trial judge instructed the jury that the lawyers' questions did not constitute evidence and the defence did not apply for a mistrial based on this questioning.

[43] In my view, when these factors are taken into account, it is clear that the cross-examination at issue did not result in a miscarriage of justice. This was a vigorously contested trial. The Crown's cross-examination crossed the line at points. However, it was not intended to demean or humiliate the appellant. When viewed in the context of the overall case -- including the failure of defence counsel to object to much of the cross-examination now complained about, the vigorous cross-examination on both sides, the evasiveness of the appellant's mother and the clear conflict between the two competing versions of events -- I am not satisfied that these isolated instances were prejudicial. The Crown's cross-examination did not render the trial unfair or result in a miscarriage of justice.

(ii) Mistrial application

[44] During the course of the Crown's cross-examination of the appellant's mother, the following interaction occurred: [page770]

The Court: Just a second.

Police Court Officer: May I address the court Your Honour.

The Court: Yes.

Police Court Officer: I am watching this witness here [the appellant's sister] give nods to that witness on the stand [the appellant's mother] . . .

A [Identity of speaker unclear]: I didn't do anything.

Police Court Officer: . . . it's also witnessed by the gentleman in the back of the court.

The Court: All right.

Police Court Officer: I have been watching for -- during her entire testimony I have seen it five times, he has seen it twice.

The Court: All right. I'm going to stand down for a few minutes. I am going to excuse you ladies and gentlemen.

[45] The trial judge then received submissions on this issue in the absence of the jury. He decided to provide the jury with a mid-trial instruction, which included the following statement:

I do not know whether there was intended communication with this witness or not, I am not making any finding on that. You know that some people are more animated than others and she may have just been nodding or shaking her head following the evidence. I do not know. . . . I am not drawing any conclusions but I have excluded her from the courtroom to ensure that there are no further concerns.

[46] At the conclusion of the defence evidence and prior to closing arguments, the defence brought an application for a mistrial. Defence counsel argued this was the appropriate remedy as a result of the court police officer's interruption. In dismissing the application, the trial judge observed that a mistrial is a drastic remedy and should only be ordered in circumstances where there is no other suitable course of action. He noted that it would have been preferable if the court police officer had asked if he could address the court in the absence of the jury. However, the trial judge found that his mid-trial instruction was immediate and clear and that it dispelled any prejudicial impact.

[47] After finding that a mistrial was not appropriate in the circumstances, the trial judge stated:

Moreover, to compel everyone to go through this extremely emotional trial again, would be an injustice to all of the parties, the witnesses, their families and the jurors.

[48] The appellant submits that the trial judge erred in principle in dismissing the mistrial application. The appellant argues that the trial judge failed to consider the impact of not [page771] declaring a mistrial on the appellant and that the trial judge's finding of potential injustice was speculative.

[49] The appellant also submits that the decision not to declare a mistrial was clearly wrong because the conduct of the court police officer irreparably damaged trial fairness. This is particularly so, the appellant argues, given that the interruption occurred after the Crown had embarked on a concerted campaign to portray the appellant's sister and mother as liars motivated to help the appellant's case. Further, the appellant argues that excluding the appellant's sister from the courtroom aggravated the prejudicial impact of the incident because it suggested to the jury that she could not be trusted.

[50] As the trial judge correctly noted, a mistrial is a remedy of last resort and should be ordered only where necessary to prevent a miscarriage of justice. Before granting this extraordinary remedy, the court should consider and reject as inadequate other less extreme remedies, such as a mid-trial instruction: R. v. Chiasson, [2009] O.J. No. 4682, 2009 ONCA 789, at para. 14; R. v. Toutissani, [2007] O.J. No. 4364, 2007 ONCA 773, at para. 9; R. v. Burke, [2002] 2 S.C.R. 857, [2002] S.C.J. No. 56, 2002 SCC 55, at para. 77.

[51] Because the determination of whether a mistrial should be granted is a matter within the discretion of the trial judge, an appellate court will only interfere with that decision if it is clearly wrong or based on an erroneous principle: Chiasson, at para. 14.

[52] As stated by the Quebec Court of Appeal in R. v. Lessard, 1992 3103 (QC CA), [1992] J.Q. no 821, 74 C.C.C. (3d) 552 (C.A.), at p. 563 C.C.C., a trial judge is best positioned to assess whether a mistrial is warranted in the circumstances and appellate courts owe trial courts significant deference on that determination:

The trial judge is the person, much more so than the Court of Appeal judges several years later, in the best position to assess its true, concrete and practical impact on the jury, in light of the general atmosphere in which the trial took place, the specific circumstances of the case, of what he may have observed during all the stages of the trial and the reaction of the members of the jury at the time of his comments on the incident. He is also in the best position to find a solution which would neutralize the poison distilled in the minds of the jury. His decision must therefore be given the greatest respect and it is only where the evidence shows that he was clearly mistaken and that he did not properly exercise his discretion that, in my view, a Court of Appeal can and must intervene.

[53] I am not satisfied that the trial judge erred in refusing to grant a mistrial. He properly determined that, given his mid-trial instruction, this was not a situation where the remedy of a mistrial was necessary. I agree with the trial judge's ruling on [page772] the mistrial application that his instruction was clear, concise and prompt. The trial judge specifically cautioned that individuals may nod their heads for a variety of reasons, and that the jury should not draw any conclusions from the court police officer's statements.

[54] In my view, the instruction was fair and adequately addressed any potential prejudice. The trial judge was in the best position to determine whether in the circumstances of this case, including the Crown's improper cross-examination, the drastic remedy of a mistrial was appropriate. The appellant has not identified any error in principle in the trial judge's exercise of his discretion. The incident at issue was brief and relatively innocuous. It was reasonable for the trial judge to conclude this did not necessitate a new trial.

[55] I also fail to see anything inappropriate in the trial judge's comments regarding the injustice of another trial. A trial judge is entitled to consider the broader impact of a declaration of a mistrial. Indeed, it appears to me that his comments are a paraphrase of Laskin J.A.'s comments in R. v. Leduc (2003), 2003 52161 (ON CA), 66 O.R. (3d) 1, [2003] O.J. No. 2974 (C.A.), at para. 154, where he said:

New trials should be avoided where possible. The accused, the other participants in the trial, the criminal justice system and the community at large must all suffer the consequences -- financial, emotional and otherwise -- of going through the proceedings again.

[56] For the foregoing reasons, I would not give effect to this ground of appeal.

(iii) Jury question

[57] At trial, Melanie Richard, a forensic scientist from the Centre for Forensic Sciences, was called by the Crown as an expert witness on bodily fluid identification and DNA interpretation.

[58] Ms. Richard testified that forensic testing of the complainant's swabs and underwear revealed male DNA in such a low level that a suitable profile for comparison with the appellant's DNA could not be determined. There was no semen on the complainant's underwear but amylase, which is often present in saliva, was detected from an unknown source. Further testing revealed male DNA from three different contributors near the waistband of the complainant's underwear, but the source and profiles again could not be determined.

[59] Following Ms. Richard's testimony, the trial judge asked her some follow-up questions to clarify what she meant when she referred to low-level male DNA. Ms. Richard explained that [page773] this meant she was unable to determine a DNA profile and a precise bodily fluid source.

[60] The day after Ms. Richard's testimony, the jury sent a note to the trial judge requesting clarification from Ms. Richard regarding her evidence about the three different DNA contributors identified near the waistband of the complainant's underwear. They wanted to know whether washing underwear on a delicate cycle in a washing machine would completely remove all traces of DNA.

[61] The trial judge consulted with counsel about the note. He then instructed the jury that they did not have the right to ask questions of a witness. He told them that it was the role of counsel to determine what evidence would be led and that it was his role to ensure that the evidence was admissible. The trial judge also reminded the jury that the trial was not over and there may be more evidence on this issue that had not yet been presented to them. Defence counsel did not object to the trial judge's instruction.

[62] The appellant submits that, although rare, jury questioning has been judicially endorsed in Canada. Further, just as the trial judge asked Ms. Richard follow-up questions, the jury should have been afforded the same opportunity.

[63] I accept the appellant's submission that permitting a jury to ask questions of a witness is not prohibited. However, the decision to allow this type of questioning is within the discretion of the trial judge and safeguards must be in place to ensure that only admissible evidence is elicited and that the parties are not prejudiced: R. v. Andrade, 1985 3502 (ON CA), [1985] O.J. No. 968, 18 C.C.C. (3d) 41 (C.A.), at pp. 59-60 C.C.C.

[64] The dangers of permitting a jury to ask questions of a witness are obvious. In addition to potentially eliciting inadmissible evidence, such questioning may run contrary to trial counsel's strategy and an objection by counsel to a question may trigger conflict with the jury or create the impression that important evidence is being hidden. Moreover, there is a risk that a jury empowered to ask questions will move from being judges of the facts to being advocates: S. Casey Hill, David M. Tanovich and Louis P. Strezos, McWilliams' Canadian Criminal Evidence, 5th ed., looseleaf (Aurora, Ont.: Canada Law Book, 2013), at p. 21-177.

[65] While I agree with the appellant that the trial judge's instruction to the jury that they were not permitted to ask questions was incorrect, I would not give effect to this ground of appeal.

[66] The decision to permit a jury to ask a witness a question is discretionary. This practice is not unknown in Canadian law, but it is permitted very rarely. Even questions by judges are [page774] usually limited to the clarification of evidence, as was done by the trial judge in this case.

[67] In my view, this was an appropriate case for the trial judge to refuse to put the jury's question to the witness. The proposed question went well beyond clarification and opened up a new issue regarding the removal of DNA in the laundering process. This issue was not raised in Ms. Richard's evidence.

[68] Moreover, the proposed line of inquiry was irrelevant to the matters at issue in the case. The underwear was not laundered before it was seized by the police. Further, the fact that other DNA profiles were present did not have any impact on what happened between the appellant and the complainant. Permitting the jury to ask these questions would have led the trial into an area that was immaterial and unhelpful.

(iv) Sentence appeal

[69] The appellant's first submission on his sentence appeal is that the trial judge erred in principle in relying on the complainant's victim impact statement as an aggravating factor. I note that this trial took place prior to amendments to s. 718.2 of the Criminal Code, which mandates courts to consider "evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation".

[70] Section 722 of the Criminal Code requires that courts have regard to a victim impact statement in fashioning an appropriate sentence. In R. v. Taylor, 2004 7199 (ON CA), [2004] O.J. No. 3439, 189 O.A.C. 388 (C.A.), at paras. 41 and 42, Blair J.A. considered the issue of whether a victim impact statement could be relied on by a sentencing judge as an aggravating factor:

Similarly, counsel for Mr. Taylor submitted that the trial judge erred in utilizing the victim impact statements presented to him as an aggravating factor justifying a heavier sentence. In my view, this case does not provide a proper record for a full analysis and assessment of the uses of victim impact statements and the ways in which a trial judge may take them into account for the purpose of sentencing. Suffice it to say that in my opinion, the trial judge in this case did not utilize the victim impact statements specifically to increase the sentence beyond what would otherwise be a fit sentence, albeit that he referred to "the permanent residual consequences for the family and the friends of the victim, referred to in the victim impact statements filed" in his list of aggravating factors.

I would observe only that victim impact statements, like criminal records, do not justify double punishment -- once for the crime against society, and again to counterbalance the harm done to the victims (a sort of criminal revenge in lieu of civil damages). Parliament has provided in s. 722 of the Criminal Code, however, that the court "shall consider" such statements "for the purpose of determining the sentence to be imposed on an offender". [page775] The court must therefore take them into account; otherwise there is no point in having them. Whether victim impact statements may be used by the sentencing judge, in themselves, to increase or decrease the fitness of the sentence, is an issue I leave for determination on another day. What they do at least, in my opinion, is help the judge to understand the circumstances and consequences of the crime more fully, and to apply the purposes and principles of sentencing in a more textured context. Here, the trial judge did no more than that. He did not err in his use of the victim impact statements he had before him.

[71] In the present case, the trial judge determined that the appropriate range of sentence was between 18 months' and four years' imprisonment, depending on the circumstances of the offence and of the offender. The appellant has not offered any case law that challenges this range of sentence.

[72] As the trial judge noted, this was a very serious sexual assault involving intercourse and fellatio. The appellant was in a position of authority as the complainant's employer. In these circumstances, I am not satisfied that the trial judge relied upon the victim impact sentence to impose a sentence that was unfit. Like in Taylor, while the victim impact statement was included in the trial judge's list of aggravating factors, there is no suggestion that this factor was used to increase the appellant's sentence to an inappropriate level.

[73] Moreover, in my view, it is not an error in principle for a sentencing judge to determine that the impact of the crime on a victim, as described in a victim impact statement, is an aggravating factor. If it were otherwise, victim impact statements would have limited utility and the mandate to consider them as part of the sentencing process found in s. 722 of the Criminal Code would be rendered meaningless.

[74] The appellant's second argument on the sentence appeal is that the trial judge's finding that there was significant psychological and emotional pressure on the complainant at the time of the assault lacked an evidentiary basis.

[75] I would not give effect to this ground of appeal. These findings were amply supported by the evidence, including

the appellant's threats to terminate the complainant's employment;

the appellant's threats to call the police if the complainant did not have sex with him;

the fact that the appellant was in a position of authority as the complainant's employer; and

the complainant's evidence that the appellant knew "lots of people" while she was a "nobody". [page776]

[76] In light of these considerations, I am not satisfied that the trial judge made any error in principle or that the sentence imposed was unfit.

Disposition

[77] For the foregoing reasons, I would dismiss the conviction appeal. While I would grant leave to appeal sentence, I would also dismiss the sentence appeal.

Appeals dismissed.

End of Document