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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

486.4(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 victim of the right to make an application for the order; and

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

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(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.

486.4(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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2017-02-14

Docket: M47426 (C60818)

Judge: Juriansz J.A.

Parties

Between

Her Majesty the Queen Respondent (Responding Party)

and

Wayne Dyce Appellant (Applicant)

Representation

Wayne Dyce, acting in person

Nader R. Hasan, duty counsel

Michelle Campbell, for the Crown

Heard: February 6, 2017

Endorsement

Application for Assigned Counsel

[1] The appellant, with the assistance of duty counsel, applies for an order under s. 684 of the Criminal Code assigning counsel to act on his behalf on the appeal. The Crown acknowledges he lacks sufficient means to retain legal assistance. The only issue is whether it appears desirable in the interests of justice that the appellant should have legal assistance.

[2] Mr. Hasan submits there are three grounds on the conviction appeal for which the appellant should have legal assistance.

Analysis of Proposed Grounds

First Ground: Propensity Reasoning Instruction

[3] I see no merit in the first submission that the trial judge erred by not instructing the jury on the dangers of propensity reasoning on the multi-count indictment. In my view, this was not a case in which it was legal error to fail to give such an instruction. Both sides presented significant evidence that applied to all counts – for example, the evidence supporting the appellant's position that the complainant had a motive to lie. In any event, the jury evidently understood the trial judge's instruction to consider the charges separately: they acquitted the accused on four of the six charges he faced.

Second Ground: Honest but Mistaken Belief Defence

[4] Nor do I see merit in the submission that the trial judge failed to instruct the jury on the defence of honest but mistaken belief that the complainant consented. In my view there was no air of reality to that defence.

Third Ground: Credibility Assessment

[5] However, I accept it is arguable the trial judge failed to provide the jury with adequate assistance in dealing with the assessment of the parties' credibility (on which the entire case turned).

Credibility and Burden of Proof

[6] First, where, as here, credibility is a "crucial issue" at trial, failure to specifically and adequately instruct the jury on credibility and the burden of proof may constitute a reversible error. As the Supreme Court held in R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 8:

A series of decisions over at least the past 20 years has affirmed and reaffirmed the proposition that where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard. A general instruction on reasonable doubt without adverting to its relationship to the credibility (or lack of credibility) of the witnesses leaves open too great a possibility of confusion or misunderstanding.

[7] This concern has at least arguable merit on this record. The trial judge did review for the jury the appellant's position that the complainant (i) had a motive to fabricate and (ii) might not be reliable due to un-medicated bipolar disorder. She also gave a general instruction that it was up to the jury how much or little they chose to believe, using their common sense, from each witness. But there was no specific instruction on how to assess credibility, or the relationship between credibility and the burden and standard of proof.

The Cell Phone Incident

[8] The necessity of such an instruction in this case may be considered in the context of Count 2 of the indictment. Count 2 charged that the appellant assaulted the complainant. The complainant testified this occurred while she was a passenger in a car the appellant was driving. Dissatisfied with the way she was handling a call to Community Legal Assistance Sarnia, the appellant hit her three times in the head. The complainant testified she told the person to whom she was speaking that she was being hit. By contrast, the appellant testified that he made the call. The secretary of Community Legal Assistance Sarnia was called and testified she received a call from the appellant, not the complainant, and there had been no allegation of any assault.

[9] The trial judge provided no instruction to the jury of the import of this evidence for the complainant's overall credibility in the event they concluded she had fabricated or not told the truth about this event. Rather, in the course of her instructions on Count 2, the trial judge merely told the jury the appellant submitted "that an independent witness… supports his version of events as it relates to the incidents surrounding the cell phone incident."

[10] I consider it arguable that a more fulsome instruction about credibility assessment was required in this case.

Demeanor Evidence

[11] Second, a trial judge should generally instruct the jury on the limits of demeanor evidence in assessing credibility. The Canadian Judicial Council's Model Jury Instructions, Part I, Preliminary Instructions, 4.11 Assessing Testimony includes the following instruction:

What was the witness's manner when he or she testified? Do not jump to conclusions, however, based entirely on the witness's manner. Looks can be deceiving. Giving evidence in a trial is not a common experience for many witnesses. People react and appear differently. Witnesses come from different backgrounds. They have different intellects, abilities, values, and life experiences. There are simply too many variables to make the manner in which a witness testifies the only or the most important factor in your decision.

See also David Watt, Watt's Manual of Criminal Evidence, 2nd ed. (Toronto: Thomson Reuters, 2015), at p. 268.

[12] This model instruction is well founded both in law and common sense. In R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 85, Epstein J.A. cited the growing understanding of the "fallibility of evaluating credibility based on the demeanour of witnesses":

It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.

See also Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66, and R. v. Hemsworth, 2016 ONCA 85, [2016] O.J. No. 505, at paras. 44-45.

[13] In this case the trial judge did not provide any assistance to the jury in their consideration of the parties' demeanour in the assessment of credibility. In fact, the trial judge emphasized the Crown's position regarding the complainant's demeanour: her testimony had the ring of truth; she testified in a manner that was simple and straightforward; she appeared to do her best to answer all of the questions. A submission based on the failure to instruct the jury on the limitations of such evidence in assessing credibility has arguable merit on this record.

[14] I conclude it appears desirable in the interests of justice that the accused should have legal assistance in advancing the ground of appeal that the trial judge provided inadequate assistance to the jury in the assessment of credibility.

Sentence Appeal

[15] I turn now briefly to the sentence appeal. The appellant proposes to appeal sentence on the basis of alleged errors in respect of the trial judge's approach to sentencing on the sexual assault charge. It does not appear desirable in the interests of justice that the appellant should have legal assistance to advance this ground. That is because the sentence he received on the sexual assault charge was concurrent to his sentence on the sexual assault with a weapon charge. Even if the trial judge erred in the manner the appellant alleges, his overall sentence would not be affected.

Conclusion

[16] I direct the appellant to request the Legal Aid Committee to reconsider its refusal in light of these reasons. In the event the Committee maintains its refusal of legal aid, I order Mr. Hasan be assigned counsel for the appellant to advance on the appeal the credibility ground only, and that his fees and disbursements be paid by the Attorney General on the Legal Aid scale.

"R.G. Juriansz J.A."