WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. H.B., 2016 ONCA 953

DATE: 20161216

DOCKET: C59960

Gillese, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

H.B.

Appellant

Ravin Pillay, for the appellant

Christopher Chorney, for the respondent

Heard: September 13, 2016

On appeal from the conviction entered on October 6, 2014 by Justice John McDermott of the Superior Court of Justice, sitting with a jury.

Gillese J.A.:

[1] Following a jury trial, H.B. (the “appellant”) was convicted of sexual assault, sexual interference and invitation to sexual touching for incidents involving his step-daughter (“T” or the “complainant”). The offences were alleged to have occurred between 2008 and 2012, when T was between 11 and 14 years of age and living with her mother (“L”), her sister, and the appellant. The appellant was sentenced to four and a half years in prison.

[2] He appeals against conviction alone.

BACKGROUND IN BRIEF

[3] Two witnesses testified for the Crown: the complainant and Police Constable Ryan Kimens, the investigating officer. L (the complainant’s mother) was not called by either side. The appellant did not testify and the defence elected not to call evidence.

[4] T testified that there were up to ten occurrences of abuse but she could specifically recall five particular incidents. The five incidents can be summarized as follows:

• on two separate occasions, the appellant fondled her breasts over her clothing;

• the appellant called her into the hallway and exposed his penis to her;

• on another occasion, the appellant came into the living room and sat down beside her, while wearing only a bathrobe. He exposed his penis to her and asked her to rub it up and down. After about 10 seconds a white sticky substance came out of his penis onto her hands; and

• on a different occasion, the appellant went into T’s bedroom, pushed her onto the bed, removed her shirt and fondled her breasts. He removed her pants and underwear, penetrated her vagina with his fingers and then inserted his penis into her vagina for around 10 seconds.

[5] Part of T’s testimony was that she had disclosed some of the abuse to her mother but her mother told her not to report it to the police or the Children’s Aid Society (“CAS”) because she and her sister would be taken from their home and put into foster care. T testified that one of the times that she told her mother about the abuse was before the CAS visited the home because of an incident of domestic violence which occurred on March 18, 2012.

[6] At trial, the defence strategy was to portray T as having fabricated the allegations because she did not like the appellant and wanted him out of the home.

[7] In his appeal against conviction, the appellant raises three grounds of appeal. The grounds of appeal are based on: (1) the admission at trial of evidence of the appellant’s prior discreditable conduct; (2) the admission of PC Kimens’s evidence of L’s demeanour; and (3) the corrective instruction that the trial judge gave about comments made by defence counsel in closing submissions (the “Impugned Instruction”). The factual background for each ground of appeal follows.

A. The Discreditable Conduct Evidence

[8] At the outset of trial, the Crown brought an application to adduce evidence of discreditable conduct on the part of the appellant that:

(a) showed he was abusive towards L;

(b) he assaulted L on March 18, 2012, T overheard the assault, and the assault resulted in a criminal conviction for the appellant and his removal from the home; and

(c) he assaulted L on another occasion which T actually observed.

[9] The defence was willing to permit T to testify as to her observations on March 18, 2012, but objected to the admission of the balance of the discreditable conduct evidence.

[10] The trial judge found that the prejudicial effect of the discreditable conduct evidence outweighed its probative value. He ruled that, with one exception, neither the Crown nor the defence could lead evidence of the discreditable conduct. The one exception was that the Crown was permitted to lead evidence, through T, of her perceptions of the March 18, 2012 incident, but not of police involvement or the conviction arising from that incident. I will refer to this as the “original ruling”.

[11] During cross-examination, defence counsel made a number of suggestions to T, with which she agreed, to the effect that the appellant had never been physically violent or threatening towards T or her sister and that L would not tolerate the appellant acting like that toward her children.

[12] At one point, defence counsel was cross-examining T about some incidents which she said were “minor”. She said that in those incidents the appellant was “hugging and kissing me. He didn’t go as far as the other ones”. The following question and answer then took place:

Q. Okay. So, it’s hugging, so, for you, when you say, “minor”, what, it didn’t bother you as much, is that what you’re saying?

A. No, not as much, no, ‘cause he got arrested, durin’ the March break.

[13] Shortly afterwards, defence counsel asked if the court might recess early for the lunch break as there was a point he wished to discuss in the jury’s absence. The trial judge excused the jury for the lunch recess. He then asked defence counsel what he wished to raise and defence counsel indicated that he was concerned because T let it “slip out about the arrest of March”. The trial judge and counsel then discussed the matter and how it might be handled.

[14] When the jury returned after lunch, they gave the trial judge two questions. The first question read as follows:

In March 2012, why was CAS called/what was the complaint? Why was [HB] arrested? Defence stopped [T]. Was it related to this case? Defence said [HB] was not violent, so, why was he arrested?

[15] Based on T’s “slip” and the first jury question, defence counsel sought a mistrial. The trial judge refused to grant it, saying that T’s statement about the appellant’s arrest arose from defence cross-examination. Instead, the trial judge instructed the jury that the issue of the arrest was unrelated to the case and not relevant to the charges before the court. He told the jury to disregard the reference to the arrest and to not speculate as to what might have led to the arrest being made.

[16] Defence counsel then continued cross-examining T for the balance of the day and court adjourned for the weekend.

[17] When court resumed on Monday morning, Crown counsel brought an application to re-open her motion in respect of the appellant’s discreditable conduct. The Crown’s position was that defence counsel’s cross-examination of T had put his good character in issue and changed the “landscape”. She submitted that the questions indicating that the appellant had never assaulted or threatened T or her sister and that L would not have permitted the appellant to show any violence towards her daughters suggested to the jury that the appellant was not a violent man.

[18] The trial judge accepted the Crown’s submission. Relying on R. v. Adams, 1995 56 (SCC), [1995] 4 S.C.R. 707, he found that there had been a material change in circumstances which empowered him to vary his earlier ruling. He viewed the material change in circumstances to have resulted from the questions that defence counsel put to T in cross-examination about the appellant’s propensity to violence. The trial judge stated that the jury’s question, which included a statement that the “[d]efence said [the appellant] was not violent”, made the change in circumstances “apparent”.

[19] The trial judge ruled that the Crown could re-examine T only on issues raised by the defence on cross-examination. He acknowledged that the Crown had agreed to limit the scope of questioning on re-examination to the March 18, 2012 incident and ruled:

Therefore, Crown counsel is permitted proper re-examination questioning on any propensity to violence respecting the children as well as the issue of why [L] did not remove [the appellant] from the home, again, only considering the incident of March 18, 2012.

[20] The trial judge then told the jury that he had made a ruling as a result of their first question which meant that there might be certain questions asked of T about the March 18, 2012 incident, both in cross-examination and re-examination, to provide context and assist in the trial narrative. He instructed the jury that they could only use the evidence to assess credibility and to assess the facts of the case. He stressed that the evidence could not be used to conclude that the appellant was the type of person who would be likely to commit the offences with which he had been charged.

[21] In re-examination, T indicated that a few days after the appellant’s arrest for the March 18, 2012 incident, the appellant started living with them again and she asked her mother why she stayed with the appellant. T responded that her mother said she didn’t have much choice and “she was afraid of what he might do to [them]”.

[22] In his charge to the jury, the trial judge again instructed the jury on this matter, saying:

As I advised you during the trial, the evidence was permitted to allow you to understand what [T] thought occurred on March 18, 2012 and to understand, in part, the reasons why [L] may not have removed [H.B.] from the home. You cannot use the evidence of the arrest, however, to determine that [H.B.] was violent, or of bad character, or to find that he was the type of person who would be disposed to commit the type of offences with which he has been charged.

B. PC Kimens’s Evidence

[23] T testified that on January 4, 2013, she had a verbal altercation with the appellant about what L was making her for dinner. The altercation ended with T telling the appellant to “mind his own business” and the appellant threatening to cut off T’s mobile phone access. T was upset and went to her room. After some time passed, she called the CAS, despite L having told her not to do this on a previous occasion when T told her of the abuse.

[24] A CAS worker and two police officers – one of whom was PC Kimens – went to the home to pick up T for questioning at the police station. The appellant, L, a family friend and the two children were at the home. PC Kimens spoke to L privately about T’s allegations. In examination in chief, he testified:

A. I explained to [L] briefly about the allegation that we had received from CAS about [the appellant] inappropriately touching [T]. Her reaction was, was not surprise.

Q. What do you mean? Please explain that.

A. There was no real change in her demeanour, protesting, or, facial expressions, and, in my experience, as a police officer....

[25] At that point, defence counsel objected and submissions were made in the absence of the jury and the witness.

[26] Defence counsel did not object to PC Kimens testifying about his observations of L’s demeanour. His objection was to PC Kimens expressing an opinion about L’s demeanour based on his experience as a police officer in the unit that deals with crimes against children.

[27] The trial judge allowed the question to be answered.

[28] When the jury returned, PC Kimens was asked to continue with his answer. He said:

Based on my experience, as a police officer, when telling others of allegations of this nature there’s usually a reaction, whether it be rage, denial, um, but, again, what I noticed was, was the fact that there was no real surprised look, and that struck me as odd.

[29] PC Kimens then testified that he explained to L the role of the police when they receive information of this kind and the steps that would follow – both children would be taken that evening to the York Regional Police building in Aurora because that facility enabled the police to videotape conversations and interviews. He told L the location of the police building and that she was free to attend if she wished.

[30] PC Kimens testified that L asked if the children would be returning and he told her that he was not able to answer that but he could tell her that they would be going with the CAS. The next question and answer were as follows:

Q. Did [L’s] demeanour change at all during the course of this interaction that you had with her?

A. No. And, again, in, in harkening to my experience, in that, there weren’t a lot of questions. Normally, when an allegation of that nature is brought out, people have a lot of questions in terms of the specifics and what next.

[31] He further testified that he told L that she could attend at the police station but L declined to do so.

[32] PC Kimens also testified that after T and her sister had been taken to the police station and interviewed, he telephoned L and told her that he needed to interview her. He said that he was surprised that L did not want to go to the police station that evening (Saturday), for the interview. As PC Kimens was not available on Sunday, L went for the interview on Monday.

[33] Defence counsel cross-examined PC Kimens extensively on his demeanour observations. The officer admitted that he had no special training, education or expertise in psychology, human conduct or facial expressions, and he readily agreed with the suggestion that people react to shocking news in different ways.

[34] In her closing submissions, Crown counsel referred to PC Kimens’s testimony that when he told L of T’s allegations, L had no change in her facial expression and that her lack of reaction to being told that her partner was abusing her daughter struck him as odd. She said:

I would submit that Officer Kimens’[s] evidence is significant, as it suggests that [L’s] purpose, throughout the police investigation, was to conceal the truth, and to prevent the authorities from learning the truth. Her conduct on January 4^th to January 7^th of 2013, in my respectful submission, is consistent with [T’s] evidence surrounding [L’s] words and actions throughout the years that [T] describes having been abused, years that her mother knew about the ongoing abuse.

I submit to you, that the only logical conclusion that you can draw from the evidence you have heard is that [L] already knew about the abuse, because [T] had told her.

I would submit there’s no other explanation for [L’s] conduct in this matter, conduct which is reprehensible, conduct which cannot be condoned. As I mentioned earlier, [L’s] conduct was a failure to protect her own daughter from harm, and based on [T’s] evidence, which is, again, uncontroverted, and uncontradicted, [L] told [T] not to tell anyone so she wouldn’t get in trouble.

[35] In his closing submissions, defence counsel argued that little weight should be attached to PC Kimens’s evidence about L’s demeanour on learning of the allegations that the appellant had sexually assaulted T. He also referred to T’s evidence about her mother’s caring and loving conduct toward her and her sister and that her mother was protective of her daughters and would want to ensure that they were safe. He urged the jury to accept that such a caring and loving mother would not tolerate the abuse if it had been disclosed to her.

[W]hy would this mother who loves her daughters in every sense of what a loving mother would, tolerate such behaviour from [H.B.]? She would prefer the abuses to continue then to have her children in foster care? Does that make sense to you?

We have heard that in an eight year relationship with [L], [H.B.] has never threatened, or assaulted [T], or [T’s sister], and, according to [T’s] own evidence, he would not do it because he would get in trouble with mom.

If [L] would not tolerate that physical abuse, how could [L] tolerate the sexual abuses which would be considered more abhorrent? Does that make sense?

[36] In his charge, the trial judge instructed the jury about the closing submissions of the Crown and defence counsel, saying:

Crown counsel spoke of [T’s] evidence that she had told [L] about at least one of the alleged incidents, and stated that [T] was essentially betrayed by her mother’s failure to advise her to go to the police. Defence counsel spoke extensively about the fact that [L] was not called as a witness to corroborate [T’s] evidence. He also mentioned that there was evidence that [L] was a good mother, and asked why she would fail to protect her daughter under the circumstances.

Firstly, I would note that although defence counsel can comment on the failure of the Crown to call [L] as a witness, or ask you to consider why the Crown did not call her as a witness, this does not mean that the Crown was, in any way, obligated to call [L] as a witness.

And what of the suggestion that [L’s] evidence would or would not corroborate the evidence of [T]? That suggestion calls for speculation as to what [L] may or may not say in evidence. As I have noted, she was not called as a witness.

Although you may infer certain facts from the evidence, you are not permitted to speculate on what a witness might say, were he or she called to the stand.

You are permitted to infer [L’s] role in this matter from the evidence of both Officer Kimens and [T], taking into account all of the circumstances of this case, but only so far as that evidence is relevant to the issues before you.

C. The Impugned Instruction

[37] The trial judge gave corrective instructions in relation to the closing addresses of both the Crown and the defence. The appellant complains that the differences in the nature of the corrective instructions caused him prejudice. The missteps by each counsel and the trial judge’s corrective instructions follow.

[38] In her closing address, Crown counsel misstated a point of law. She said:

When considering defence counsel’s submissions on [T’s] motive to fabricate, know that the law recognizes that allegations of sexual abuse, made by children of tender years, bear a special stamp of reliability and that children are unlikely to concoct, but because they are, generally, not adept at reasoned reflection, or, at fabricating tales of abuse, they’re unlikely to use their reflective powers to concoct a deliberate untruth.

[39] In his charge, the trial judge gave the jury the following corrective instruction:

You also heard Crown counsel, during her closing address, state the proposition that because [T] was a child when the alleged offences occurred, that when she gave her testimony her evidence had, what Crown counsel referred to as the, “stamp of reliability”.

There is no legal rule that evidence at trial from a child has any greater reliability than that of any adult witness, or that because the evidence came from a child, the evidence has some sort of special reliability on its own. Crown counsel has argued that this child’s evidence is reliable because she, as a child witness, may be less likely to fabricate evidence because of her age. This is not, however, a legal rule. Legally, you may not attribute to the evidence of [T] any sort of increased reliability. You must treat her evidence as you would treat the evidence of any other witness, however, taking into account her age, the evidence itself, and the other factors that I’ve mentioned elsewhere in this charge and previously.

[40] In his closing address, defence counsel made two comments to the jury to which the Crown took exception.

[41] The first comment was that the complainant had been “coached”. Defence counsel said:

We know [T] had an internet boyfriend when she was 11. We know she was internet savvy enough to find a boyfriend, and when she had this boyfriend she’s not above scheming and lying, because when confronted with this, at first, by her mom, she lied to her mom, and she admitted she lied to her mom. Now, the Crown tried to, well, re-examined her on this issue, and tried to sort of rehabilitate this part of her evidence, and she says, “Yeah, you know, I lied just, if only to receive a benefit”. I’m not sure if somehow that makes any of this better, but, let’s examine that. First of all, it sounds almost like a legal answer, so, you have to wonder was she ever coached in regards to that answer.

[42] The second comment was that the prosecution had accepted T’s version of events because it had “tunnel vision” and “blinders on”. Defence counsel said this:

And, again, I was saying the lack of corroboration is a disturbing aspect of this case. How could a mother who loved her children in every respect allow such abuses to continue? The simple answer is this: is that the abuses never happened. [L] never saw any abuses, and [T] never reported any to her mom. From [T’s] own evidence, her mom would not tolerate any physical abuse from [H.B.] against her children. If she would not tolerate that physical abuse, how could she tolerate the sexual abuses which would be considered more abhorrent? Does that make any sense? But, the prosecution cannot see this possibility, or the simple answer, because it has bought [T’s] story hook, line, and sinker. They cannot see the possibility that exists that [L] never witnessed the abuses and that [T] never reported them to her mom. In legal circles, we call that, “tunnel vision”. In laymen terms, you may have heard it’s called, “having blinders on”. And that is the reason it has taken the effort, the tortured evidence of Officer Kimens, to support its case, just twisting it.

[43] The Crown immediately raised concerns about both sets of comments, saying that they were an attack on her personal and professional integrity.

[44] The trial judge discussed the first comment with counsel and defence counsel agreed to retract it. When the jury returned, defence counsel told them that the comment that T had been coached was not meant to impugn Crown counsel, either personally or professionally. Shortly thereafter, court adjourned for the day.

[45] Crown counsel reviewed the court recording that night and the following day she raised the propriety of the second comment, saying that it, too, had impugned her integrity.

[46] The trial judge agreed and gave the jury the Impugned Instruction before defence counsel continued with his closing submissions:

You’ll recall, ladies and gentlemen, that there was a statement made by [defence counsel] during his final address yesterday regarding some implication by, made by him, that Crown counsel had influenced [T] prior to her giving an answer to a question in testimony. He apologized for this statement and confirmed that he had not intended it as a personal attack on the Crown and confirmed, as well, that there was no intention to impugn the behavior of the prosecution in this matter.

There were, as well, ladies and gentlemen, several other statements made by defence counsel in his closing argument. These were with regard to the issue of whether there was another explanation for [T’s] evidence.

[Defence counsel] said several things. He said that the prosecution had bought [T’s] story, “hook, line, and sinker”. He said that the prosecution had, “blinders on”, with regard to whether they considered another version of events as might have been corroborated by [L].

He said that, “in legal circles we call it, ‘tunnel vision’”. Counsel further stated that this was the reason that the prosecution took efforts to, “torture the evidence”, torture “the evidence of Officer Kimens for this case” or to, “twist”, his evidence.

I’m [going to] let you know, Crown, that there’s no [question] that defence counsel is entitled to vigorously present his case, and his client’s case to the jury during his address. The court is not a tea party, or a social outing. It is a tough forum where counsel are entitled to strenuously present a case of his or her client to the jury.

As part of this, defence counsel is entitled to attack the credibility of Crown witnesses, or question why a witness might not have been called by the Crown. That being said, statements, such as those described, may be interpreted as an attack on the integrity of both Crown, the Crown-prosecutor, as well as the investigating officer. These comments appear to have the cumulative effect of doing so. They are outside of the rules and should not have been said.

You are to ignore those comments in your deliberations. [Defence counsel] will make no further comments of a similar nature as he concludes his address to you.

THE GROUNDS OF APPEAL

[47] The appellant raises three grounds of appeal. He submits that the trial judge erred:

1. in permitting the Crown to re-examine T regarding the appellant’s prior discreditable conduct against L on March 18, 2012;

2. in permitting the Crown to introduce evidence of L’s demeanour and PC Kimens’s opinion of it, and in his instructions to the jury on the permissible use of that evidence; and

3. by allegedly undermining defence counsel before the jury through the Impugned Instruction.

GROUND #1 THE DISCREDITABLE CONDUCT EVIDENCE

[48] The appellant submits that the trial judge erred in permitting the Crown to re-examine T about the incident leading to the appellant’s arrest on March 18, 2012. The appellant makes two arguments in support of this submission. I accept neither.

A. The First Argument

[49] The appellant first argues that the trial judge should not have viewed the jury’s first question as evidence that the appellant was holding himself out as a non-violent individual. He contends that the questions which defence counsel posed when cross-examining T did not amount to a general assertion of the appellant’s good character. Rather, they were limited to whether T had observed the appellant act violently towards her or her sister. The appellant further submits that even if the questions put on cross-examination constituted a material change in circumstances, the prejudicial effect of T’s evidence about the March 18, 2012 incident outweighed its probative value.

[50] This argument is a challenge both to the trial judge’s right to reconsider his original ruling and the ruling flowing from that reconsideration (the “later ruling”). Neither challenge can succeed.

[51] A trial judge can vary or revoke any order relating to the conduct of a trial if the circumstances that were present at the time the order was made have materially changed: Adams, at para. 30. The trial judge found that defence counsel’s questioning of T led to a material change in circumstances because it raised the risk that the jury would be left with a distorted view of: (i) whether the appellant was a violent person; and (ii) the complainant’s home life, including whether her mother would have permitted the appellant to remain in the home if T had told her of the alleged sexual abuse. Thus, given the material change in circumstances, the trial judge was entitled to reconsider his original ruling on the appellant’s prior discreditable conduct.

[52] The appellant’s challenge to the validity of the later ruling also fails. This court must accord a high degree of deference to the trial judge’s decision to admit the discreditable conduct evidence: R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at paras. 22-23. I see no basis on which to interfere with the trial judge’s decision.

[53] Correcting a potential distortion of this type is a valid ground for admitting evidence of discreditable conduct: R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 89.

[54] Moreover, the later ruling allowed only a narrow expansion of the scope of discreditable conduct evidence permitted by the original ruling. It will be recalled that the original ruling precluded counsel from leading evidence of the appellant’s prior discreditable conduct subject to one exception: the Crown was permitted to lead evidence, through T, of her perceptions of the March 18, 2012 incident. That exception was necessary to the narrative of the case so that T could explain a previous encounter with CAS and her mother’s instructions at that time not to report the abuse by the appellant.

[55] The trial judge carefully crafted his later ruling to expand the scope of admissible discreditable conduct evidence only so far as was necessary to correct the distortion created by defence counsel’s cross-examination of T which suggested to the jury – as they indicated by their first question – that he was not a violent person and that L would have removed him from the home had he harmed one of her children. The later ruling struck an appropriate balance between the probative value of the discreditable conduct evidence and its prejudicial effect. In this regard, it is to be noted that there were other allegations of more egregious abuse and general evidence of abuse that was not admitted.

[56] Finally, I note that the trial judge gave an appropriate limiting instruction in respect of this evidence, both mid-trial and in his final charge to the jury. Those instructions are set out above in the background to this ground of appeal so need not be repeated.

B. The Second Argument

[57] The appellant’s second argument is that the Crown was obliged to object to the questions at the time that defence counsel put them to T and, having failed to do so, the Crown was not entitled to ask the trial judge to revisit his original ruling.

[58] I do not accept this argument.

[59] Defence counsel’s questions were not, in themselves, objectionable. They were proper questions and they did not violate the original ruling. They did, however, result in evidence being put before the jury that, while admissible, left the jury with a distorted view of the matter of violence in the home and what L might have done in the face of the appellant harming her children. The Crown was entitled to address the situation by asking the judge to reconsider his original ruling and correct that distortion.

[60] The appellant relies on three authorities as support for his second argument: R. v. Kutynec (1992), 1992 7751 (ON CA), 7 O.R. (3d) 277 (C.A.); R. v. Gundy, 2008 ONCA 284, 231 C.C.C. (3d) 26; and R. v. Enden, 2007 SKCA 100, 304 Sask. R. 283.

[61] None of these cases assist the appellant. Kutynec deals with the appropriate procedures to be used by an accused person when bringing an application to exclude evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms. In Gundy, Rosenberg J.A. held that defence counsel’s s. 24(2) Charter argument made during closing submissions – one month after the close of the Crown’s case – came too late. And Enden was concerned with the sufficiency of a trial judge’s reasons.

[62] Accordingly, I would dismiss this ground of appeal.

GROUND #2 PC KIMENS’S TESTIMONY

[63] This ground of appeal is based on two aspects of PC Kimens’s testimony: his observations of L’s reaction to being told of T’s allegations against the appellant (the “demeanour evidence”) and his opinion about L’s reaction. The appellant makes four inter-related arguments on this ground of appeal.

A. The First Argument

[64] First, relying on R. v. Badgerow, 2014 ONCA 272, 119 O.R. (3d) 399, leave to appeal refused, [2014] 3 S.C.R. v, the appellant argues that the demeanour evidence was implied hearsay by conduct and, therefore, presumptively inadmissible. Had the Crown wished to introduce it, the appellant maintains that the Crown was required to bring an application after which the court had to conduct a principled analysis to determine whether its probative value exceeded its prejudicial effect.

(1) R. v. Graat

[65] In my view, R. v. Graat, 1982 33 (SCC), [1982] 2 S.C.R. 819, is determinative of the first argument. However, because Graat is also critical to a determination of the third argument on this ground of appeal, I pause now to discuss Graat in some detail.

[66] In Graat, the accused was convicted of driving a motor vehicle while impaired by alcohol. At trial, the two police officers who stopped the car that the accused was driving gave their opinions on whether the accused’s ability to drive was impaired by alcohol. The appeal to the Supreme Court of Canada depended on the admissibility of that opinion evidence.

[67] Dickson J., as he then was, writing for the court, began by canvassing the Canadian jurisprudence on lay opinion evidence as well as that of England, Ireland, Northern Ireland, Australia, and New Zealand. Thereafter, he examined the leading texts and the recommendations of various Canadian law reform commissions on the matter.

[68] Dickson J. then drew a series of conclusions on the admissibility of lay opinion evidence. For the purposes of this appeal, I would highlight three, which can be found at pp. 835-37 of Graat.

[69] First, there is a lengthy list of recognized subjects upon which lay witnesses are allowed to express opinions. He set out the following non-exhaustive list:

i. the identification of handwriting, persons and things;

ii. apparent age;

iii. the bodily plight or condition of a person, including death and illness;

iv. the emotional state of a person – e.g. whether distressed, angry, aggressive, affectionate or depressed;

v. the condition of things – e.g. worn, shabby, used or new;

vi. certain questions of value; and

vii. estimates of speed and distance.

[70] Second, removing the artificial and “frequently false” distinction between fact and opinion permits the witness to provide a more accurate impression of the events the witness seeks to describe. Dickson J. summed this up by saying, at p. 837:

I can see no reason in principle or in common sense why a lay witness should not be permitted to testify in the form of an opinion if, by doing so, he is able more accurately to express the facts he perceived.

[71] Third, the admissibility of lay opinion evidence is to be determined first by asking whether the evidence sought to be admitted is relevant, a matter of applying logic and experience to the circumstances of the particular case, and then determining whether the evidence must be excluded by a clear ground of policy or law.

[72] Dickson J. held that the opinion evidence in question was admissible because: it was relevant; its probative value was not outweighed by policy considerations; the police officers had personally observed the accused; their opinion evidence did not decide the ultimate issue; and, the trier of fact could accept all, part or none of their evidence (at p. 836).

[73] Dickson J. then addressed the appellant’s submission that the opinion evidence was “superfluous, irrelevant and inadmissible” (at p. 837). He flatly rejected this submission. He also flatly rejected the suggestion that it was testimony that called for an expert, saying that the opinion in question was not a matter for which scientific, technical or specialized knowledge was necessary. Rather, he said, it was a matter which the modern jury could intelligently resolve on the basis of common ordinary knowledge and experience. Consequently, the guidance of an expert was unnecessary (at pp. 837-38).

[74] In my view, in determining whether the trial judge erred in admitting the demeanour evidence, this court need not go further than to refer to the list in Graat, reproduced above. That list sets out accepted categories upon which lay witnesses are allowed to express opinions. Item (iv) of that list is evidence of “the emotional state of a person – e.g. whether [a person was] distressed, angry, aggressive, affectionate or depressed”.

[75] The demeanour evidence in this case was PC Kimens’s opinion of L’s observable emotional state on being told of the allegations T had made against the appellant. Because the demeanour evidence falls squarely within list item (iv) in Graat, it was admissible.

(2) Cases Relied on by the Appellant

[76] Furthermore, the cases that the appellant relies on as support for the proposition that demeanour evidence generally ought not to be admissible do not apply. He points to: R. v. T.E., 2007 ONCA 891; R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.); and R. v. Baltrusaitis (2002), 2002 36440 (ON CA), 58 O.R. (3d) 161 (C.A.).

[77] Those cases relate to an accused person’s demeanour. That is not what is in question in this case. PC Kimens’s evidence was not about H.B.’s demeanour. Rather, it was about the demeanour of L, the complainant’s mother.

(3) Demeanour Evidence is not Implied Hearsay

[78] Finally, I do not accept the appellant’s submission that the demeanour evidence is implied hearsay by conduct.

[79] At para. 106 of Badgerow, this court explains that, although hearsay typically consists of spoken words, it can consist of conduct. Such conduct can be of two types: assertive and non-assertive.

[80] Assertive conduct refers to non-verbal conduct that is intended as an assertion. Examples of assertive conduct include nodding the head (indicating “yes”) and pointing to someone or something. Assertive conduct is conduct that is tendered in evidence to prove the truth of an assertion (Badgerow, at para. 107).

[81] Non-assertive conduct describes conduct, whether by words or deeds or both, from which the trier is asked to infer a statement based on the “declarant’s” belief (Badgerow, at para. 109).

[82] It is clear that the demeanour evidence is not assertive conduct. A person’s facial expression (or, in this case, non-expression) is not non-verbal conduct like a nod of the head or pointing at something.

[83] Nor was the demeanour evidence hearsay by non-assertive conduct.

[84] The demeanour evidence, standing on its own, had relevance to the chronology and narrative of T revealing her allegations to the authorities. As a matter of logic and human experience, L’s reaction on being told of the allegations was relevant to whether she had prior knowledge of the allegations her daughter made. If L had prior knowledge of those allegations, that supported T’s credibility. Thus, in combination with other evidence, it was open to the Crown to ask the jury to draw an inference that L already knew of the abuse, consistent with T’s testimony. Simply because the Crown asked the jury to draw an inference from the demeanour evidence does not render that evidence an implied statement of belief adduced for the truth of its contents.

[85] For the reasons revealed by defence counsel’s cross-examination of PC Kimens, the Crown’s desired inference was only one of many possible explanations for L’s lack of facial expression. PC Kimens readily agreed that people react to shocking news in different ways. L’s lack of expression cannot simply be reduced to an implied statement that she knew of the abuse, although that inference was available to the jury. Rather, there was a range of inferences that could be drawn from this aspect of the narrative.

[86] It was open to the defence to argue, as it did, that L’s demeanour was inconsistent with prior knowledge of the abuse because: L was confronted in the middle of the night with allegations that were difficult to register; people react differently to surprising news; she was processing information that did not fit with her perception of the appellant, with whom she had been in a relationship for eight years; and she knew her daughter’s character.

[87] The demeanour evidence was some circumstantial evidence from which the jury could draw inferences either consistent with L’s knowledge of the abuse or inconsistent with such knowledge. The defence at trial articulated its concerns with the demeanour evidence as a matter of weight and not admissibility. The defence then used that circumstantial evidence to fit within its theory of the case. The demeanour evidence was not hearsay any more than was T’s evidence, in cross-examination, of past protective and nurturing acts by L, from which the defence requested an inference that L did not know of and would not have tolerated the abuse.

[88] I would simply conclude on this argument by noting that, at trial, defence counsel expressly conceded that PC Kimens was entitled to give the demeanour evidence.

B. The Second Argument

[89] Second, the appellant argues, for a variety of reasons, that it was improper for the Crown to lead the demeanour evidence and not call L as a witness. One of the reasons advanced by the appellant for this argument is that it enabled the Crown to evade the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.). That rule, the appellant says, would have required the Crown to put to L the theory that she had reacted without emotion to being told about T’s allegations against the appellant because she was already aware of the misconduct. The appellant also complains that the trial judge should have commented on the Crown’s failure to call L as a witness.

[90] I see nothing in this argument.

[91] The Supreme Court held in R. v. Cook, 1997 392 (SCC), [1997] 1 S.C.R. 1113, at para. 55, that the Crown does not have a duty to call all material witnesses. Therefore, there was nothing improper in the Crown’s strategic choice not to call L.

[92] Furthermore, the trial judge made no error in his instructions to the jury on this matter. He observed that although L was not called as a witness at trial, both counsel referred to her extensively during their respective closing addresses. The trial judge then specifically instructed the jury that defence counsel could both comment on the failure of the Crown to call L as a witness and invite the jury to consider why the Crown had not called her as a witness. However, he also explained that this did not mean that the Crown was obligated to call L as a witness. The trial judge then correctly instructed the jury on corroboration and told them that they were not to speculate as to what L might have testified to, had she been called as a witness.

C. The Third Argument

[93] Third, the appellant argues that PC Kimens should not have been permitted to offer his opinion about L’s demeanour.

[94] For the reasons that follow, I would not give effect to this argument.

[95] I begin by considering this argument in the trial context.

[96] At trial, defence counsel objected to PC Kimens being allowed to express an opinion about L’s reaction, but the basis for his objection is not clear. When the trial judge asked him for the reason, defence counsel said:

Your Honour, from her questioning it appears the area she’s going into is, what is his experience as a police officer when he advises parents of this kind of nature, this conduct, and what, what the normal reaction may be. I’m not sure that’s appropriate. Maybe that’s an area of an expert in terms of, I mean, for you to say, I mean, his experience, obviously, is not encompassing of all officers’ experience, human, he’s not an, sorry, an expert in human psychology, human behaviour, human conduct, Your Honour, for him ….

[97] When Crown counsel was invited to respond to the objection, she said that it appeared that defence counsel was taking the position that this type of evidence had to be given by an expert.

[98] However, when the trial judge heard from defence counsel in reply on this point, defence counsel did not pursue the objection based on the notion that it required expert evidence. He simply pointed to the fact that PC Kimens had only been with the unit dealing with crimes against children for about two months when he went to the complainant’s home on January 4, 2013.

[99] In the absence of an identifiable legal basis for the objection, the trial judge then ruled that PC Kimens could answer the question that had been posed – that is, that he could offer his opinion about L’s reaction.

[100] I next consider the cases to which the appellant points in support of this argument: R. v. Quazi, 2014 ONCA 94; and R. v. J.F. (2006), 2006 20836 (ON CA), 210 C.C.C. (3d) 405 (Ont. C.A.). These cases do not assist him.

[101] In Quazi, this court held that a police officer’s opinion that the accused’s demeanour during his police interview was indicative of guilt, was irrelevant and therefore inadmissible. In J.F., a mother testified that she believed her daughters when they disclosed sexual abuse to her. This court held that the evidence was inadmissible because it offended the rule against oath-helping and was irrelevant.

[102] In the present case, PC Kimens’s opinion evidence did not relate to the accused (as was the case in Quazi) nor did it contain an expression about whether PC Kimens believed T (as was the case in J.F.).

[103] Graat, on the other hand, does provide assistance in determining whether the trial judge erred in permitting PC Kimens to offer his opinion on L’s demeanour. As we have seen, in Graat, the Supreme Court explained that the admissibility of lay opinion evidence must be determined using appropriate legal principles:

Admissibility is determined, first, by asking whether the evidence sought to be admitted is relevant. This is a matter of applying logic and experience to the circumstances of the particular case. The question which must then be asked is whether, though probative, the evidence must be excluded by a clear ground of policy or of law.

[104] In accordance with Graat, in my view, the trial judge should have determined whether PC Kimens’s opinion evidence was relevant and, if so, whether its probative value was outweighed “by such policy considerations as [the] danger of confusing the issues or misleading the jury”. This would include an assessment of whether the probative value of that evidence was outweighed by the prejudicial effect of its admission.

[105] Had the trial judge performed such an assessment, because of the highly subjective nature of the evidence, he might well have exercised his discretion to exclude it on the basis that the prejudicial effect of the evidence outweighed its probative value.

[106] That said, in my view, the admission and use of the impugned evidence in this case did not impair a fair trial. I say this for two reasons.

[107] First, the impugned evidence was very limited. The full extent of PC Kimens’s opinion evidence is the following:

A. Based on my experience, as a police officer, when telling others of allegations of this nature there’s usually a reaction, whether it be rage, denial, um, but, again, what I noticed was, was the fact that there was no real surprised look, and that struck me as odd. [Emphasis added.]

Q. Did [L’s] demeanour change at all during the course of this interaction that you had with her?

A. No. And, again, in, in harkening to my experience, in that, there weren’t a lot of questions. Normally, when an allegation of that nature is brought out, people have a lot of questions in terms of the specifics and what next. [Emphasis added.]

[108] Second, I see no basis for believing that the jury would have attached undue weight to the impugned evidence. The defence’s effective and thorough cross-examination of PC Kimens served to diminish its weight and any prejudice that the opinion evidence might have occasioned. Through that cross-examination, it was clearly demonstrated that PC Kimens had no special training in psychology, human emotions or facial expressions, and he readily admitted that people react to shocking news in different ways. It also exposed the limits of PC Kimens’s experience and education in forming his opinion, which served to address the policy consideration identified in Graat, namely, that the evidence might mislead the jury.

[109] For these reasons, I would not give effect to the appellant’s third argument.

D. The Fourth Argument

[110] Fourth, the appellant argues that the trial judge erred in his instructions to the jury on the permissible use of the demeanour evidence. He says that the Crown’s closing address improperly invited the jury to find that the demeanour evidence corroborated T’s evidence and that the trial judge erred by failing to tell the jury that it could not serve as corroboration.

[111] I see no error in the trial judge’s instructions in this regard.

[112] It is important to place in context the Crown’s remarks in her closing address about the demeanour evidence. In each of their closing addresses, the Crown and defence counsel invited the jury to draw inferences based on L, even though she had not been called as a witness. While the Crown invited the jury to find that the demeanour evidence corroborated T’s evidence that she had told her mother of some of the abuse, defence counsel relied on L’s caring behavior for her daughters to suggest that the jury draw the inference that as a good and loving mother, L would not have known of the abuse and allowed it to continue.

[113] Defence counsel did not challenge, before the trial judge, the Crown’s suggestion that the demeanour evidence corroborated T’s testimony that she had told her mother of some of the abuse. Indeed, neither counsel argued to the trial judge that the other’s inferences were unreasonable or speculative and therefore required a corrective instruction.

[114] Furthermore, as already noted, the trial judge gave proper instructions on corroboration, reasonable inferences and impermissible speculation, with particular regard to the evidence concerning L. It was for the jury to decide whether they could draw the inference that L already knew of the sexual abuse at the time PC Kimens disclosed it to her and, if so, what weight to attach to that inference.

GROUND #3 THE IMPUGNED INSTRUCTION

[115] The appellant submits that the trial judge treated defence counsel harshly in the Impugned Instruction but did not treat Crown counsel harshly for committing similar errors. In so doing, the appellant contends, the trial judge diminished defence counsel’s standing before the jury and prejudiced the appellant.

[116] I see nothing in this submission. The errors that each counsel made were markedly different in nature and number, and called for different types of corrective instructions.

[117] The trial judge’s instruction on Crown counsel’s single misstatement of the law was both measured and appropriate.

[118] So, too, was his corrective instruction regarding defence counsel’s multiple comments. It is impermissible for defence counsel to impugn Crown counsel’s integrity in the course of closing submissions: R. v. Trakas, 2008 ONCA 410, 233 C.C.C. (3d) 172, at para. 32. It was for the trial judge to consider the defence comments in the context of the entire trial to determine how the jury would perceive those comments, and to determine the appropriate remedy if those comments were found to have risked distracting the jury from its task of determining the charges before the court (Trakas, at para. 33).

[119] In any event, there is nothing to support the appellant’s submission that the differences in the wording of the two corrective instructions in any way prejudiced the jury against the appellant.

DISPOSITION

[120] For these reasons, I would dismiss the appeal.

“E.E. Gillese J.A.”

“I agree. Paul Rouleau J.A.”

Brown J.A. (Concurring):

I. Overview

[121] I concur with my colleague that the appeal should be dismissed. I agree with my colleague’s analysis and disposition of Grounds 1 and 3 concerning the re-examination of the complainant on the appellant’s prior discreditable conduct and the Impugned Instruction. As to Ground 2 – the evidence of PC Kimens – I respectfully cannot agree with parts of my colleague’s analysis.

[122] Ground 2 concerns the Crown’s introduction through PC Kimens of evidence about how the complainant’s mother reacted when the police told her about her daughter’s allegations against the appellant. The officer gave two distinct, but highly inter-related, pieces of evidence. First, PC Kimens testified the mother’s reaction “was not surprise,” “there was no real change in her demeanour” (the “demeanour evidence”). Defence counsel did not object to the admission of that evidence.

[123] PC Kimens then started to express a view about the lack of change in the mother’s demeanour based on his experience as a police officer. The defence objected. The Crown submitted the officer was entitled to give “his interpretation of her demeanour.” The trial judge recognized the issue in play was whether the mother’s reaction was a “normal reaction.” He allowed the question, holding “that this is a question that could be answered, frankly, by anyone who was confronting someone with an allegation of this sort.”

[124] PC Kimens then testified that based on his experience as a police officer, “the fact that there was no real surprised look…struck me as odd” (the “departure from the norm” evidence).

[125] In her closing to the jury, Crown counsel described PC Kimens’ evidence as “significant” and “crucial.” His evidence that the mother’s demeanour did not change on being told of the allegations and her odd reaction tended to corroborate the complainant’s evidence that she had told her mother about the abuse shortly after it happened and her mother knew about the ongoing abuse.

[126] My colleague concludes, in effect, that the trial judge did not err in admitting either PC Kimens’ demeanour evidence or his departure from the norm evidence. I agree with my colleague’s treatment of the “implied hearsay” issue and of the Browne v. Dunn issue. I also agree with my colleague that the admissibility of PC Kimens’ demeanour and departure from the norm evidence fell to be determined pursuant to the principles set out in R. v. Graat, 1982 33 (SCC), [1982] 2 S.C.R. 819, at p. 835.

[127] The appellant did not object to the admission of the demeanour evidence. However, in considering the appellant’s objection to the admissibility of PC Kimens’ departure from the norm evidence, the trial judge did not conduct a Graat analysis. In failing to do so, he committed an error of law.

[128] As my colleague points out, at para. 105 of her reasons, had the trial judge performed such an assessment, he might well have excluded what I have termed the departure from the norm evidence. However, he admitted it. In my view, admitting the departure of the norm evidence was an error in light of the use the Crown proposed to make of it.

[129] Notwithstanding that error of law, I am persuaded that no substantial wrong or miscarriage of justice occurred because of the instructions the trial judge gave in his charge. As a result, I would dismiss the appeal.

II. Analysis

[130] Ground 2 calls for a consideration of the scope and use of lay opinion evidence. The law of evidence has long recognized that lay witnesses may give opinion evidence in certain circumstances. In the original edition of their evidence text published less than a decade before the Graat decision, Sopinka and Lederman wrote that to rule certain inferences made by a lay witness inadmissible “would conflict with the natural mental processes which translate a man’s perception into words”. So, “with respect to matters of common experience, a lay witness will be allowed to express an opinion if he possesses personal knowledge of the facts upon which that opinion is based”: John Sopinka and Sidney N. Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworth & Co. (Canada) Ltd., 1974), at pp. 299 – 301.

[131] The Graat case considered the admissibility of evidence from police officers that a person’s ability to drive was impaired by alcohol, based on the officers’ observations of the person’s manner of driving and indicia of intoxication. The Supreme Court recalled the law of evidence permits the non-expert witness to give opinion evidence on certain subjects, including the emotional state of a person – e.g. whether a person appeared “distressed, angry, aggressive, affectionate or depressed”: p. 835.

[132] In Graat, the Supreme Court took the view that such opinion evidence was “an abbreviated version of the witnesses factual observations” or a “compendious statement of facts” admissible, in part, because “it may be difficult for the witness to narrate his factual observations individually”: at pp. 837 – 840. In the case of a lay opinion about the degree of intoxication of a driver, the court also adopted the jurisprudence that the driving of motor vehicles had become “a matter of everyday experience for ordinary people”: at p. 839.

[133] Graat anchored the admissibility of opinion evidence given by a non-expert witness in broad principles, stating, at p. 835:

Admissibility is determined, first, by asking whether the evidence sought to be admitted is relevant. This is a matter of applying logic and experience to the circumstances of the particular case. The question which must then be asked is whether, though probative, the evidence must be excluded by a clear ground of policy or of law.

[134] The practical consequence of this more principled approach to the admission of lay opinion evidence is summarized in Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman & Bryant – The Law of Evidence in Canada, Fourth Edition (Toronto: LexisNexis, 2014) at §12.14:

Courts now have greater freedom to receive lay witnesses’ opinions if: (1) the witness has personal knowledge of observed facts; (2) the witness is in a better position than the trier of fact to draw the inference; (3) the witness has the necessary experiential capacity to draw the inference; that is, form the opinion; and (4) the opinion is a compendious mode of speaking and the witness could not as accurately, adequately and with reasonable facility describe the facts she or he is testifying about. But as such evidence approaches the central issues that the courts must decide, one can still expect an insistence that the witnesses stick to the primary facts and refrain from giving their inferences. It is always a matter of degree. As the testimony shades towards a legal conclusion, resistance to admissibility develops.

[135] Although the law of evidence is open to admitting lay opinion evidence about the demeanour of another person, it increasingly has become cautious about the use to which such evidence may be put. In three cases, this court has sounded a warning about using evidence of an accused’s demeanour as evidence indicative of guilt.

[136] In R. v. Levert (2001), 2001 8606 (ON CA), 150 O.A.C. 208, 159 C.C.C. (3d) 71 (C.A.), the Crown adduced evidence about the accused’s reaction when confronted with allegations of sexual touching of the minor complainant. The gist of the evidence was that the accused was “very, very, very calm.” Rosenberg J.A. expressed grave concerns about the admissibility of such evidence when the Crown sought to use the accused’s reaction as evidence of consciousness of guilt. He observed the probative value of that type of evidence is “highly suspect” and “should be admitted at a criminal trial with caution” because “perceptions of guilt based on demeanour are likely to depend upon highly subjective impressions that may be difficult to convey to the jury and in any event the significance of the reaction will often be equivocal.”

[137] In R. v. Trotta (2004), 2004 34722 (ON CA), 191 O.A.C. 322, 190 C.C.C. (3d) 199 (C.A.), this court recognized the probative value of demeanour evidence is, in many circumstances, “more apparent than real” because it assumes there is a “normal” range of reaction to highly stressful situations applicable to all individuals and that outward appearance accurately reflects an individual’s state of mind or emotional state: para. 40. As put by Doherty J.A. at para. 41:

Evidence of demeanour offered as evidence indicative of a state of mind must be received with caution ... The circumstances surrounding the proffered evidence must be such as to make that evidence sufficiently unambiguous and demonstrative of a relevant state of mind so as to overcome concerns that a trier of fact may too easily equate what is perceived to be an “unusual” reaction with a guilty mind. [Emphasis added].

[138] Finally, in R. v. Quazi, 2014 ONCA 94, [2014] O.J. No. 495, this court held the trial judge should not have permitted the jury to hear the opinion of a police officer who characterized the appellant’s demeanour during his police interview as indicative of guilt. This court held, at para. 7, that “[s]uch an opinion was irrelevant and should not have been permitted. Its intrusion into the trial record was highly prejudicial and contributed to the overall unfairness of the appellant’s trial.”

[139] In R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, the Supreme Court of Canada stressed the highly problematic nature of evidence of an accused’s demeanour. At paras. 75 and 76, Rothstein J., writing for the majority, described the “hallmark flaws associated with ‘demeanour evidence’” that may so seriously taint the evidence that it becomes irrelevant:

Such hallmark flaws are generally associated with evidence in the form of a witness's impression of the accused's mental or emotional state (e.g. appeared calm or nervous), as inferred by the witness from the accused's outward appearance or behaviour. The accused's mental or emotional state is then submitted as suspect and probative of guilt…

A problem with such evidence is that the inferential link between the witness's perception of the accused's behaviour and the accused's mental state can be tenuous. The witness's assessment depends on a subjective impression and interpretation of the accused's behaviour … Moreover, it appears to involve an element of mind reading …Additionally, insofar as the witness is inferring the accused's state of mind from the accused's outward appearance, there may be a legitimate concern that this is inadmissible lay opinion evidence. This is to be contrasted with evidence of objective conduct that allows the jury to draw its own inferences about the accused's state of mind.

[140] In her concurring reasons Charron J., at para. 107, agreed “that inferences drawn by a witness, based on his or her observation of the accused’s demeanour, may well call for a special caution or be subject to an exclusion order in accordance with these principles.” Binnie J. echoed similar concerns in his dissent: paras. 141 – 142.

[141] Unlike White, Levert, Trotta and Quazi, the present case does not involve evidence about an accused’s demeanour and the inferences one can draw from it about the accused’s state of mind. Here, the use of the evidence against the accused is more indirect. The Crown urged the jury to use PC Kimens’ opinion of the mother’s “odd” reaction when informed of the allegations against the appellant as evidence supporting the complainant’s credibility – i.e. the mother’s odd reaction confirmed the complainant had disclosed ongoing abuse by the appellant to her mother.

[142] Nevertheless, the line of reasoning employed by the Crown in respect of PC Kimens’ departure from the norm evidence suffers from the same “hallmark flaws” as those associated with inferences drawn from demeanour evidence about an accused. The dangers of such evidence and inferences are the same in both cases: a witness’s assessment of a person’s state of mind or knowledge depends on a subjective impression and interpretation of the person’s behaviour. As put by Rothstein J. in White, such reasoning appears to involve an element of mind-reading. In my view, mind-reading remains mind-reading, whether the object of observation is the accused or some other person.

[143] PC Kimens’ evidence about the mother’s reaction to the allegation of sexual abuse against the appellant – that it “was not surprise” – perhaps was his compendious way of expressing the mother’s appearance and, as such, admissible lay opinion evidence. However, his testimony that the mother’s reaction was “odd” was more akin to an editorial comment on how far the mother’s demeanour departed from the expected reaction of a “normal” person. How a person reacts to allegations of sexual abuse made against another family member is not a matter of common or everyday experience, the primary basis for the admission of lay opinion evidence. Nor did PC Kimens possess a wealth of experience in observing or assessing such reactions, unlike the emergency room physician in Trotta who had a great deal of experience observing parents who brought their young children to the hospital.

[144] Parenthetically, it strikes me that to the extent one relies on the special experience or training of a person as a basis for admission of his or her opinion, one is moving into the realm of expert opinion evidence, thereby bringing into play the standard factors governing the admissibility of that type of evidence.

[145] The tenuous probative value of PC Kimens’ departure from the norm evidence was vastly outweighed by its prejudicial effect. His evidence about the mother’s “odd” reaction amounted to nothing more than irrelevant “mind reading” by the police officer of the mother’s state of knowledge about any abuse by the appellant of the complainant. The trial judge should not have admitted it.

[146] Notwithstanding that error of law, the use the jury could make of PC Kimens’ demeanour and departure from the norm evidence about the complainant’s mother was the subject of extensive discussion at the pre-charge conference. In the result, the trial judge repeatedly instructed the jury not to speculate about what the complainant’s mother might have said had she testified, and he specifically instructed the jury they could not “speculate about whether she might or might not corroborate [the complainant’s] evidence.” He also reiterated that counsel’s submissions did not constitute evidence for them to consider.

[147] Those instructions in the charge adequately mitigated the prejudice caused by improperly admitting the departure from the norm evidence given by PC Kimens. As a result, I am satisfied that notwithstanding the trial judge’s error of law, no substantial wrong or miscarriage of justice occurred: Criminal Code s. 686(1)(b)(iii).

[148] Accordingly, I agree with my colleague that the appeal should be dismissed.

Released: December 16, 2016 (“E.E.G.”)

“David Brown J.A.”