Her Majesty the Queen v. A.T.

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

Ontario Reports

Court of Appeal for Ontario,

Laskin, van Rensburg and Benotto JJ.A.

February 2, 2015

124 O.R. (3d) 161 | 2015 ONCA 65

Case Summary

Criminal law — Trial — Conduct of Crown — Closing address — Accused convicted of attempted murder and conspiracy to commit murder after his three children tried to kill their mother — Crown's theory being that accused used perverted interpretation of Christianity to influence children to try to kill mother — Crown counsel making inflammatory remarks about accused's religious beliefs in his closing address and implying that accused was more likely to have orchestrated murder attempt because of his religious fanaticism — Defence counsel not objecting to Crown's address — Trial judge not correcting Crown's inflammatory remarks and giving jury no guidance about how to properly use evidence of accused's religious beliefs — Crown's remarks and trial judge's failure to respond rendering trial unfair and causing miscarriage of justice.

The accused was convicted of attempted murder and conspiracy to commit murder after his three children tried unsuccessfully to kill their mother. The Crown's theory was that the accused, a devout Mennonite, used his own perverted interpretation of Christianity to influence the children to try to kill their mother. During his closing address, in an attempt to support the notion that an individual can be influenced by another to commit murder, Crown counsel referred to Jim Jones and the Jonestown massacre, Charles Manson, religious zealots such as suicide bombers, and the Third Reich. He compared the "linchpin" of the defence case, the theory that the children planned the murder on their own, to the "Jesus nut" that holds a helicopter's blade to the shaft, and concluded by stating, "When [defence counsel] offers you a ride in his helicopter, my suggestion is you say, no thanks, that Jesus nut looks a little loose to me." Defence counsel did not object, and the trial judge did not comment on the Crown's closing address. The accused appealed his conviction.

Held, the appeal should be allowed.

The use of "Jesus nut" as a metaphor for the "linchpin" of the defence theory was not innocent. In the context of the evidence at trial and the other comments made by the Crown in closing, it was evident that the Crown was calling the accused a "Jesus nut" and inviting the jury to convict because the accused was a religious fanatic and therefore more likely to have orchestrated the murder. The Crown's remarks were inflammatory, vindictive, sarcastic and ridiculing of the accused. They were categorically inappropriate and improper. Despite defence counsel's failure to object, the remarks were so prejudicial that the trial judge had a duty to remedy the potential harm to trial fairness. The trial judge erred in law by failing to correct the suggestion that the accused was a Jesus nut who shared characteristics with cult leaders and notorious religious fanatics. The error was exacerbated by the absence of any direction from the trial judge about how to properly approach the evidence surrounding the accused's religious beliefs. The Crown's remarks and the trial judge's failure to respond resulted in a miscarriage of justice. [page162]

Cases referred to

R. v. Angelis, [2013] O.J. No. 439, 2013 ONCA 70, 99 C.R. (6th) 315, 300 O.A.C. 367, 296 C.C.C. (3d) 143, 105 W.C.B. (2d) 544; R. v. B. (R.B.), [2001] B.C.J. No. 45, 2001 BCCA 14, 152 C.C.C. (3d) 437, 48 W.C.B. (2d) 466; R. v. Boucher, 1954 3 (SCC), [1955] S.C.R. 16, [1954] S.C.J. No. 54, 110 C.C.C. 263, 20 C.R. 1; R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293, [1990] S.C.J. No. 108, 119 N.R. 321, [1990] 6 W.W.R. 554, J.E. 90-1517, 49 B.C.L.R. (2d) 299, 59 C.C.C. (3d) 321, 80 C.R. (3d) 235, 11 W.C.B. (2d) 191; R. v. Ferguson, [2001] 1 S.C.R. 281, [2001] S.C.J. No. 7, 2001 SCC 6, 265 N.R. 201, 142 O.A.C. 92, 152 C.C.C. (3d) 95, 44 C.R. (5th) 305, 48 W.C.B. (2d) 534, revg 2000 5658 (ON CA), [2000] O.J. No. 346, 130 O.A.C. 253, 142 C.C.C. (3d) 353, 35 C.R. (5th) 290, 45 W.C.B. (2d) 293 (C.A.); R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, [1998] S.C.J. No. 66, 163 D.L.R. (4th) 577, 230 N.R. 1, J.E. 98-1956, 113 O.A.C. 97, 127 C.C.C. (3d) 449, 18 C.R. (5th) 135, 39 W.C.B. (2d) 391; R. v. Kostyk, [2014] O.J. No. 2768, 2014 ONCA 447, 312 C.C.C. (3d) 101, 321 O.A.C. 256, 115 W.C.B. (2d) 95; R. v. Mallory, [2007] O.J. No. 236, 2007 ONCA 46, 220 O.A.C. 239, 217 C.C.C. (3d) 266, 72 W.C.B. (2d) 792 (C.A.); R. v. Michaud, 1996 211 (SCC), [1996] 2 S.C.R. 458, [1996] S.C.J. No. 73, 198 N.R. 231, J.E. 96-1648, 107 C.C.C. (3d) 193, 49 C.R. (4th) 292, 31 W.C.B. (2d) 222; R. v. Polimac, [2010] O.J. No. 1983, 2010 ONCA 346, 254 C.C.C. (3d) 359, 262 O.A.C. 91 (C.A.) [Leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 263]; R. v. Romeo, 1991 113 (SCC), [1991] 1 S.C.R. 86, [1991] S.C.J. No. 6, 119 N.R. 309, J.E. 91-198, 110 N.B.R. (2d) 57, 62 C.C.C. (3d) 1, 2 C.R. (4th) 307, 12 W.C.B. (2d) 3; R. v. Rose (1998), 1998 768 (SCC), 40 O.R. (3d) 576, [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, 166 D.L.R. (4th) 385, 232 N.R. 83, 115 O.A.C. 201, 129 C.C.C. (3d) 449, 20 C.R. (5th) 246, 57 C.R.R. (2d) 219, 40 W.C.B. (2d) 192

Statutes referred to

Youth Criminal Justice Act, S.C. 2002, c. 1 [as am.]

APPEAL by the accused from the conviction entered on March 2, 2010 by Ramsay J. of the Superior Court of Justice, sitting with a jury.

Jill R. Presser, for appellant.

Deborah Krick, for respondent.

The judgment of the court was delivered by

BENOTTO J.A.: —

A. Overview

[1] The appellant was convicted of attempt to commit murder and conspiracy to commit murder after his three children -- then ages 11, 14 and 16 -- tried unsuccessfully to kill their mother. The Crown's theory was that the appellant was the mastermind behind the murder plot.

[2] The appellant submits that the trial judge made several errors in his charge to the jury. I would give effect to one of the alleged errors: the trial judge's failure to correct the remarks made by the Crown in his closing address. [page163]

[3] Crown counsel's closing address included inflammatory and prejudicial rhetoric about the appellant's religious beliefs. He invited the jury to convict the appellant on the basis that he was a "Jesus nut", not because he was actively involved in the murder plot. The trial judge did nothing to correct the Crown's inflammatory comments and gave the jury no guidance about how to properly use the evidence concerning the appellant's religious beliefs. This was a legal error which rendered the trial unfair to the appellant. In my view, this is dispositive of the appeal.

B. Background

(1) Factual background

[4] The appellant and his wife had been married for over 20 years. They had three children. The appellant, a devout Mennonite, conducted daily devotions for the entire family, which involved Bible readings and discussions.

[5] By 2007, the marriage was in difficulty. There was evidence that the appellant assaulted his wife on three occasions, one of which resulted in a criminal conviction. When the appellant's wife separated from him, he blamed her for the breakdown of the marriage and was terribly distraught. He discussed the separation and impending divorce with his children, cried in front of them and told them that their mother had broken up the family.

[6] The children became increasingly hostile toward their mother. They subjected her to a barrage of physical and verbal abuse. They threw her clothes out, hit her, wrote abusive notes to her and referred to her as "it". On one occasion, she was forced to call the police. The Crown's theory was that the children's conduct was directed by the appellant, who invoked biblical references to convince them that their mother was evil and that it would be better if she were dead. The children testified that the appellant told them that their mother did not love them, was suicidal and wanted to kill them.

[7] A letter in German, written by the appellant, was entered into evidence. It was addressed and sent to his wife's father. Peppered with biblical references, the letter depicted his wife as crazy, a liar and abusive. Although in the appellant's handwriting, it was signed by the children. The appellant testified that the children dictated its contents to him. He claimed that he never intended to mail it, though it was clear that someone eventually did so.

[8] The children testified that the appellant told them to kill their mother by drowning her in the bathtub. They said that their father assigned a role to each child and even conducted [page164] a rehearsal of the drowning. They also said that he told them that it was okay to kill someone if you asked God for forgiveness.

[9] The appellant testified that he heard about the children's plan to drown their mother in the bathtub. He said that he told the children such talk was unacceptable. He denied that he told them it was okay to kill someone if you ask for forgiveness.

[10] On the evening of November 30, 2007, the children came home from their grandparents' house where they had been visiting with the appellant. After watching TV for some time, the youngest child went upstairs and complained of stomach pain. This was an attempt to draw their mother into the bathroom so they could put her in the bathtub. When she went to her bedroom instead, the other two children grabbed her, dragged her into the bathroom and pushed her into the tub. The youngest put the stopper in the tub. The eldest turned on the water. Their mother was able to turn off the water twice. At some point, the eldest had her in a headlock and was trying to choke her.

[11] It was unclear precisely how the attack ended. Their mother was eventually able to regain her footing. She tried to persuade the children to talk, and was ultimately able to leave the bathroom. The middle child called 911 and told the police that their mother was trying to kill them.

[12] The children did not initially implicate the appellant. However, approximately one week after the attack, they confessed their own roles to the appellant's parents and sister, who involved the police. In addition to the charges laid against the appellant, two of the children were charged under the Youth Criminal Justice Act, S.C. 2002, c. 1. The youngest child had not reached the minimum age for criminal responsibility.

(2) The trial

(i) Examination of the appellant

[13] The appellant's religious beliefs became an issue at trial. During his examination-in-chief, the following exchange took place:

Q: [W]hat is the belief of your church vis-à-vis Satan or the devil?

A: As it's -- also as it's stated in the Bible that Satan is -- is -- first of all Satan is not the monster with horns and pitchfork and that. Satan is a fallen angel and he -- he tempts people and deceives people. Things like that. He also causes people to go against God's law.

Q: So what do you define as evil?

A: Anything that goes against God's law . . . what the Bible says. [page165]

[14] The Crown then made use of this biblical theme during cross-examination of the appellant. The Crown displayed passages from the Bible on a screen in the courtroom and questioned the appellant about them. One passage was taken from a note one of the children sent to his mother, which quoted from Mark 3, verses 22 to 27:

And the teachers of the law who came down from Jerusalem said, he is possessed by Beelzebub! By the prince of demons he is driving out demons. So Jesus called to them and spoke to them in parables: How can Satan drive out Satan? If a kingdom is divided against itself, that kingdom cannot stand. If a house is divided against itself, that house cannot stand. And if Satan opposes himself and is divided, he cannot stand; his end has come.

[15] The appellant was asked if he perceived his house as divided and whether Beezlebub is another name for Satan. He responded yes to both questions. When asked whether he thought his wife was possessed by demons, he answered that he did not. Crown counsel then questioned him on an earlier statement he made to police, where he was more ambivalent on the issue of whether he believed his wife was possessed.

[16] In the same manner, the Crown put to the appellant the quotations from the Bible contained in the German letter. The following exchange took place:

Q: I Corinthians 6 and 7. Do you know about -- do you know what those passages say?

A: I Corinthians 6, that's about believers taking each -- should not take each others (sic) to court because it's secular because it's under -- it's under the world law and -- and it's better to -- to work things out amongst themselves and if they can't, take it to the church and work it out.

Q: Very good. Moral law is supreme over man's law. Right?

A: Yes.

Q: I Corinthians 7. Do you remember that one?

A: Corinthians 7 that's -- that would have to do with marriage.

Q: It does. And what it says is that a woman shall not separate from a man. It's against God's moral law for a woman to separate from a man. That's what it says in Corinthians 7. Right?

A: Yes.

Q: And the only exception to that is in a case of adultery. Right?

A: Yes.

Q: And you believe that, don't you?

A: Of course. [page166]

Q: So if that's true, then by separating from you, you believed that [your wife] was violating God's moral law. Right?

A: Yes.

[17] The apparent purpose of this questioning was to demonstrate that the substantive content of the notes, as well as the letter, reflected the appellant's own beliefs, which would support the Crown's position that he was using these beliefs to influence the children's behaviour.

(ii) The Crown's closing address

[18] Crown counsel fixated on the appellant's religious beliefs in his closing submissions to the jury. It would appear he sought to convince the jury that the appellant had perverted religious beliefs and had used these beliefs to influence the children to kill their mother. In an attempt to support the notion that an individual can be influenced by another to commit murder, he said:

I ask you to consider the Jonestown massacre, November 1978. Over 900 people, men, women and children, died in a mass suicide . . . in Jonestown, Guyana . . . at the instructions of cult leader Jim Jones.

Consider the brutal murders committed by the members of the cult of Charles Manson in the late 1960's.

Perhaps more timely, as -- as [defence counsel] himself alluded to, consider that since September 11th, 2001, and even before, on almost a daily occurrence we've heard of terrible suicide bombings where religious zealots strap on explosive vests and blow themselves up in an effort to kill innocent women and children.

We can even reflect on a much broader scale to the involvement of the German people in the rise and support of the Nazis of the Third Reich who killed millions upon millions of innocent people in the war years and before.

[19] In an apparent self-correction, the Crown then said:

Now in giving you these examples, it's extremely important that you know I am in no way trying to compare [the appellant] to Jim Jones, to Charles Manson, or to a -- a terrorist, or Hitler. I'm not suggesting for a minute that his wrongdoing reaches even close to that level of evil or malevolence.

[20] However, he immediately continued on with his comparative rhetoric:

But what the -- what the examples . . . do show you very clearly is that situations like this often have similar circumstances, similar features[.] The rise of a person of influence in a position of authority. The direction of influence to a narrow or targeted audience of manipulated followers. The fabrication of an external outsider who's described as evil and intending to harm the manipulated. The perversion of religious teachings to support the terrible acts by the leader. [page167]

While there are, of course, vast differences between the examples, the hallmarks or similarities are striking and disturbing.

Given that we all know of examples of this phenomenon arising even in adults, is it any surprise then that three kids, age 11, 14 and 16, could be influenced to perpetrate an act like this over the course of weeks and months by a vengeance seeking father who convinced them that their mother was intent upon killing them, who twisted religious teachings, and who spewed hatred?

He used religion to justify his own actions and theirs. He taught them divorce was forbidden by God. People who wanted to divorce were going against God's word. He taught them that [their mother] . . . was un-Christian, an unbeliever. He taught them that she was listening to the devil . . . that [she] was possessed.

(Emphasis added)

[21] These remarks were made after the Crown had said the following:

The linchpin of the whole defence case is that these three kids got together or colluded with each other to fabricate a story that was designed to implicate [the appellant] in a plan that he had no part in[.]

Now people who work with some kinds of helicopters describe that there's a single piece that holds the helicopter's blade on the shaft that spins. And if that piece comes off, the helicopter's blade flies off the shaft and you're doomed. You're going to crash if you're in that helicopter. That piece is so important they call it the Jesus nut.

The Jesus nut of the whole defence case is the suggestion that these kids are conspiring against [the appellant].

[22] The Crown concluded these remarks with the following:

When [defence counsel] offers you a ride in his helicopter, my suggestion is you say, no thanks, that Jesus nut looks a little loose to me.

[23] Defence counsel did not object to the Crown's closing submissions.

(iii) The charge to the jury

[24] The trial judge's jury charge lasted 49 minutes. He said nothing about the Crown's remarks and gave no instruction on how to approach the evidence surrounding the appellant's religious beliefs.

C. Analysis

[25] On appeal, the respondent acknowledged that the remarks made to the jury were improper, but argued that they constituted mere "rhetorical excess" and did not affect trial fairness. The appellant argued that the Crown's improper comments [page168] rendered the trial unfair by inviting the jury members to engage in impermissible reasoning and distracting them from the ultimate issue of whether it was proven beyond a reasonable doubt that the appellant conspired with, counseled or abetted his children in their murder plot.

(1) Principles governing the Crown's closing address

[26] The Crown occupies a special position in the prosecution of criminal offences, which "excludes any notion of winning or losing" and "must always be characterized by moderation and impartiality": R. v. Boucher, 1954 3 (SCC), [1955] S.C.R. 16, [1954] S.C.J. No. 54, per Rand J., at p. 24 S.C.R., and Taschereau J. (in translation), at p. 21 S.C.R. Crown counsel "must limit his or her means of persuasion to facts found in the evidence presented to the jury": R. v. Rose (1998), 1998 768 (SCC), 40 O.R. (3d) 576, [1998] 3 S.C.R. 262, [1998] S.C.J. No. 81, at para. 107.

[27] As this court summarized in R. v. Mallory, [2007] O.J. No. 236, 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 340, Crown counsel in the closing address should not "engage in inflammatory rhetoric, demeaning commentary or sarcasm, or legally impermissible submissions that effectively undermine a requisite degree of fairness".

[28] In R. v. B. (R.B.), [2001] B.C.J. No. 45, 2001 BCCA 14, 152 C.C.C. (3d) 437, the British Columbia Court of Appeal discussed, at para. 15, the rationale for holding Crown counsel to this standard:

It takes no skill to whip up feelings against the accused in a case like this and it threatens the integrity of the trial. Applying opprobrious labels to the accused, as was done here, does nothing to advance the case; instead it cheapens the dignified position that the Crown should occupy in criminal law.

[29] When improper comments by Crown counsel are sufficiently prejudicial, a trial judge has a duty to intervene, and a failure to do so will constitute an error of law: R. v. Romeo, 1991 113 (SCC), [1991] 1 S.C.R. 86, [1991] S.C.J. No. 6, at p. 95 S.C.R.; R. v. Michaud, 1996 211 (SCC), [1996] 2 S.C.R. 458, [1996] S.C.J. No. 73, at para. 2. The Supreme Court affirmed in Rose, at para. 127, that "where the trial judge fails to redress properly the harm caused by a clearly inflammatory, unfair or significantly inaccurate jury address, a new trial could well be ordered".

[30] A failure by defence counsel to object to improper remarks by Crown counsel is not a bar to a successful appeal: R. v. Ferguson, 2000 5658 (ON CA), [2000] O.J. No. 346, 142 C.C.C. (3d) 353 (C.A.), at paras. 38, 92, revd on other grounds [2001] 1 S.C.R. 281, [2001] S.C.J. No. 7, 2001 SCC 6; [page169] R. v. Angelis, [2013] O.J. No. 439, 2013 ONCA 70, 296 C.C.C. (3d) 143, at para. 61; R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293, [1990] S.C.J. No. 108, at pp. 1308-1309 S.C.R. As Doherty J.A. explained, "[a] legal error remains a legal error even if counsel does not object or even supports the erroneous instruction": R. v. Polimac, [2010] O.J. No. 1983, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 97, leave to appeal to S.C.C. refused [2010] S.C.C.A. No. 263.

[31] It does not automatically follow, however, that a new trial will be ordered when the Crown makes improper comments during a closing address, even where the remarks are not corrected. The question is whether, in the context of the entire trial, the remarks and the trial judge's response or failure to respond caused a substantial wrong or miscarriage of justice: R. v. Romeo, supra, at p. 95 S.C.R.

(2) The Crown's improper remarks

[32] It is important to review the context of the Crown's admittedly improper remarks. The Crown's theory, developed through cross-examination and confirmed in its closing submissions, was that the appellant used a perverted interpretation of Christianity to influence his children to kill their mother. According to the Crown, the appellant convinced them that their mother was possessed by the devil. He allegedly assured them that it was okay to kill her -- they could simply ask God for forgiveness after the fact.

[33] The examination of the appellant put his religious beliefs squarely at issue. In cross-examination, he was asked about the meaning of parables in the Bible. This would have left the jury with the impression that the appellant's beliefs were a significant issue in the case. While on the Crown's theory his beliefs motivated him to have his wife killed, the appellant's interpretation of biblical parables was not the primary issue. The issue was not what he believed, but rather what, if anything, he had told the children.

[34] Having questioned the appellant extensively on his particular beliefs in cross-examination, Crown counsel proceeded to mock them in closing submissions. He called those beliefs "twisted" and likened the appellant to a cult leader and a religious zealot. He made references to notorious murderers who used "perverted" religious teachings to manipulate followers. He referred to the appellant as a "Jesus nut" and tried to pass this phrase off as a metaphor for the "linchpin" of the defence theory.

[35] This was no innocent metaphor. In the context of the evidence at trial and the other comments made by the Crown in [page170] closing, it is evident that he was calling the appellant a "Jesus nut". The Crown then asked the jurors to decline a "ride" on defence counsel's helicopter because the "Jesus nut" looked "a little loose". This was an invitation to convict the appellant because of his bizarre religious beliefs.

[36] In combination with the references to the Jonestown massacre, Charles Manson, Hitler and religious terrorists, the message for the jury was clear: the appellant was a religious fanatic and therefore more likely to have orchestrated the murder.

[37] The impugned comments were categorically inappropriate and improper. Although some latitude is allowed for the occasional lapse into rhetorical flourish in light of the adversarial context (see Mallory, at para. 339), the Crown in this case engaged in multiple instances of prosecutorial misconduct and fell well below the standard expected of Crown counsel. His remarks were inflammatory, vindictive, sarcastic and ridiculing of the appellant.

(3) Did a miscarriage of justice occur?

[38] The trial judge said nothing about the Crown's improper remarks. He did not correct the suggestion to the jury that the appellant was a Jesus nut who shared characteristics with cult leaders and notorious religious fanatics. This was an error of law. The error was exacerbated by the absence of any direction from the trial judge about how to properly approach the evidence surrounding the appellant's religious beliefs.

[39] The jury was tasked with making a relatively straightforward factual determination: was the appellant actively involved in the plot to murder his wife, either by intending to encourage the children to commit murder or by being part of the plan to commit the murder?

[40] However, the appellant's religious beliefs became a significant issue at trial, which the trial judge did not address. He failed to give the jurors any guidance -- corrective or otherwise -- about how to approach the evidence of religion. Absent an instruction about the limited probative value of the appellant's religious beliefs and a clear admonition to ignore the prejudicial remarks by the Crown, it was highly possible that the jurors engaged in impermissible reasoning. There was a potentially straightforward path to conviction: the appellant was a crazy, religious zealot and thus the type of person who would commit this crime.

[41] I note that defence counsel's failure to object to an improper comment at trial can sometimes indicate that the [page171] impact of the comment, in the circumstances, was not so prejudicial as to render the trial unfair: see R. v. Kostyk, [2014] O.J. No. 2768, 2014 ONCA 447, 312 C.C.C. (3d) 101, at para. 42. This is particularly the case where defence counsel is experienced, or the decision not to intervene can be described as "tactical" rather than a mere "lapse": see Ferguson, at paras. 39-40, 92; R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, [1998] S.C.J. No. 66, at para. 100.

[42] However, defence counsel's failure to object in this case does not alter my conclusion that the Crown's uncorrected remarks rendered the trial unfair. The remarks were so prejudicial that the trial judge had a duty to remedy the potential harm to trial fairness.

[43] In the circumstances of this case, particularly where credibility was at issue, the trial judge's failure to provide a proper instruction on these issues rendered the trial unfair to the appellant and caused a miscarriage of justice.

D. Conclusion

[44] I find it unnecessary to address the other grounds of appeal. I would allow the appeal and order a new trial.

Appeal allowed.

End of Document