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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2017-04-26

Docket: C53889

Panel: LaForme, Epstein and Huscroft JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Richard Speers Appellant

Representation

Richard Speers, acting in person

Brian Snell, appearing as duty counsel

Michael Fawcett, for the respondent

Hearing

Heard: April 3, 2017

On appeal from: the conviction entered by Justice Elizabeth Quinlan of the Superior Court of Justice, sitting with a jury, on February 17, 2011.

Decision

Epstein J.A.:

Overview

[1] Following a four-day jury trial, the appellant, Richard Speers, was convicted of one count of sexual assault. He admitted having engaged in sexual touching with the complainant, M.H., on the night in question. The only issue for the jury to decide was whether M.H. had consented to the sexual activity. M.H. testified. Mr. Speers did not. Three other witnesses testified. Although all interacted with M.H. soon after the admitted sexual touching, none were in a position to provide any direct evidence on the question of consent. Thus, the case essentially came down to M.H.'s testimony, and the attempts by the defence to attack her credibility during cross-examination.

[2] The argument on appeal focused on the jury charge. Duty counsel on behalf of Mr. Speers takes the position that the charge to the jury was unfair as it was unbalanced. The trial judge summarized the Crown's position over two pages. The summary focused on the Crown's case, and not the frailties exposed during cross-examination.

[3] The Crown's position is that, in the context of this case, particularly given Mr. Speers called no evidence, the charge provided the jury with the tools needed to determine the issue of consent.

[4] For the reasons that follow, I would dismiss the appeal.

Closing Submissions & Jury Charge

i. Closing Submissions

[5] As I discuss below, the jury charge should be considered together with the parties' closing submissions in considering whether the jury was adequately instructed on the positions of the parties. As the charge is alleged to be unbalanced in favour of the Crown, there is no need to summarize the Crown's closing address.

[6] Defence counsel at trial submitted that the pivotal issue for the jury was M.H.'s credibility. Cross-examination had revealed M.H. to be dishonest and showed that she had embellished, exaggerated, and simply made things up during her testimony. Defence counsel pointed to several alleged examples of M.H.'s wavering in her testimony during cross-examination. It was not believable, counsel submitted, that M.H. had thought Mr. Speers weird and tried to avoid him before the incident, as she claimed, given the history of their interactions. The evidence of the three other witnesses merely showed that something had happened in M.H.'s room that night that had upset her. They provided no evidence that her being upset was because of a sexual assault.

[7] Finally, defence counsel argued that the photos of the room indicated that it was a near physical impossibility for the sexual assault to have occurred as described by M.H. Considering M.H.'s serious drug addiction and criminal record, she was simply not a credible or reliable witness. Based on all the evidence, the Crown had not established beyond a reasonable doubt that M.H. had been sexually assaulted that night.

ii. Charge to the Jury

[8] The charge, as a whole, is slightly more than 42 transcript pages long.

[9] Considering the admission that there had been sexual touching, the trial judge charged the jury that in order for there to be a conviction, the Crown was required to prove two things beyond a reasonable doubt: 1) that M.H. did not consent to the touching; and 2) that Mr. Speers knew that M.H. did not consent to the touching.

[10] At page 29, in discussing the issue of whether M.H. had consented, the trial judge summarized M.H.'s evidence concerning the issue of consent, as follows:

The evidence of M.H. is that on the night in question she had a few drinks with Mr. Speers and his friend Chris. Chris left at nine or ten p.m. M.H. had enough, and said she was going to bed. Mr. Speers tried to get her to stay up, but she did not want to be with him alone. She went to sleep. At around midnight she could feel something. She woke up. She saw Mr. Speers holding a beer and wearing a red robe. He had his hand in her pants and his fingers in her vagina. She said "What the fuck are you doing? Get the hell out of my room." M.H. testified that she did not consent to the sexual encounter.

[11] The trial judge charged the jury that if they had a reasonable doubt whether M.H. had consented, they must find Mr. Speers not guilty. On the other hand, were the jury satisfied beyond a reasonable doubt that M.H. had not consented, they must turn to the second question – whether Mr. Speers had known that M.H. had not consented. At page 32, the trial judge instructed the jury with respect to M.H.'s evidence, as follows:

The evidence of M.H. is that on the night in question she only had a drink to be nice and civil. She was only out in the kitchen area when Chris was there. At no time did Richard Speers come into her room to drink beer with her. As soon as Chris left, she went to bed because she did not want to be alone with Mr. Speers. M.H. went to sleep and woke up to find Mr. Speers' fingers inside her vagina.

[12] At this point, at page 33, the trial judge noted that "it is Richard Speers' position that M.H. consented to the sexual activity with him that forms the basis of the charge". However, the trial judge did not mention any of the arguments defence counsel had advanced in her closing address. The trial judge merely noted that the burden was on the Crown to prove beyond a reasonable doubt that M.H. had not consented. The trial judge continued to discuss consent. At page 34, the trial judge repeated word-for-word the summary of M.H.'s evidence that she had given at page 29 (see above).

[13] The trial judge then provided the position of the parties. The following five paragraphs are what the trial judge said about the Crown's theory of the case:

The Crown's position is that a sexual assault took place. The only issue in this case is whether M.H. consented to the accused, Richard Speers, touching her vagina. The DNA report that has been filed on consent confirms the presence of M.H.'s DNA on the accused's right middle finger. The evidence of the sexual assault is the uncontradicted testimony of M.H. Although many suggestions were made to her in cross-examination, she did not agree with any of those scenarios.

The Crown's position is that it was very clear that M.H. did not consent. She had gone to bed because she did not want to be alone with the accused. She was in her own room asleep. She woke up because she could feel the accused's fingers inside her vagina. The words she spoke upon waking further clearly communicated the absence of any consent. The accused's reaction by repeatedly saying "I'm sorry" and leaving, confirmed that she did not let him touch her, and he went ahead and touched her anyway, and he knew that he had done wrong. The apology shows that he had done something he felt sorry for, the unwanted sexual contact.

Although M.H. had a criminal record, and had at one brief time in her life been a user of heroin, these facts alone do not diminish her credibility. You can find her to be a reliable witness because she was very clear and sincere when she gave her evidence in court. She was obviously still distraught about what the accused did to her.

The Crown's position is that her distress and upset was also clear on the night that the accused sexually assaulted her. She became sick to her stomach. She was observed by her roommate Barry Donnell to be distressed, worried and in tears. M.H. called her aunt, Cynthia Palmer, who said that M.H. seemed very distraught and it took a few minutes for her to calm down enough to say what had happened. She said she had a tone in her voice that she had never heard in her niece's voice before. She sounded very upset and scared.

Constable Sarah Frith arrived shortly after the events in question. She observed M.H. to be crying hard. M.H. was wearing a zip-up sweater but it was undone. The officer said that M.H.'s hands were shaking too much to do the zipper up, and so the officer helped her do up the sweater. Those observations further serve to confirm that what happened was exactly as M.H. told the court. She had been sexually assaulted by the accused.

[14] The trial judge then summarized the defence's theory of the case in the following two paragraphs:

The defence takes the position that the alleged sexual assault could not have taken place as described by the complainant.

The defence takes the position that the complainant is not credible and should not be believed. As such, the Crown has failed to prove its case beyond a reasonable doubt and Mr. Speers should be acquitted.

[15] I note that neither counsel objected to the charge.

Analysis

Applicable Legal Principles

[16] There is considerable jurisprudence from this court on the question of unbalanced jury charges. Sharpe J.A. in R. v. Mahalingan (2006), 80 O.R. (3d) 35 (C.A.), at para. 15, acknowledged that "there is no simple template that can be uniformly applied when instructing a jury and no simple formula by which an appellate court can assess the adequacy of a jury charge". In R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.), Doherty J.A. explained that what matters is that by the end of the instruction, the jury must understand:

1. the factual issues which had to be resolved;
2. the law to be applied to those issues and the evidence;
3. the positions of the parties; and
4. the evidence relevant to the positions taken by the parties on the various issues.

[17] It is clear that the issue is really a holistic one: is the jury sufficiently informed about the case as put forward by the defence?

Principles Applied

i. Evidence Relevant to the Positions Taken by the Parties

[18] The appellant argues that in this case the charge was deficient in relation to the third and fourth factors in MacKinnon.

[19] I deal first with the fourth factor – the evidence relevant to the positions taken by the parties on the various issues. At first glance, this case might appear to have much in common with R. v. Li (2004), 183 C.C.C. (3d) 48 (Ont. C.A.). There, Borins J.A. held that the trial judge had failed to charge the jury in accordance with the fourth requirement from MacKinnon. Borins J.A. made the following comments, at para. 42:

Having chosen to review the Crown's evidence in substantial detail, the trial judge was obliged to provide a similar review of the defence evidence in order to maintain an appropriate balance. A trial judge's duty to give a jury balanced instructions is based on the need to ensure trial fairness. In my view, the trial judge's failure to place the appellant's defence and the evidence capable of supporting it before the jury, undermined the defence and materially prejudiced the appellant.

[20] However, in Li the accused had testified, and an expert witness had also testified on his behalf on the key issue of whether the touching had been sexual or medical in nature. Here, Mr. Speers did not testify. As previously noted, the three independent witnesses could not provide direct evidence on the key issue of consent. Insomuch as they testified that M.H. was upset after the incident, their evidence would tend to support her accusation, and not his defence. The fact that Mr. Speers did not testify or lead evidence distinguishes this case from many of the authorities on unbalanced jury charges.

[21] However, a similar situation is found in R. v. Belic, 2011 ONCA 671, another case in which the appellant neither testified nor led evidence at trial. There, the appellant submitted that the trial charge was unfair, unbalanced, and prejudicial because the trial judge had emphasized evidence favouring the Crown. In rejecting this submission, the court noted, at para. 22, that: "in a case where the accused does not testify and calls no evidence, it is almost inevitable that the judge's summary of the evidence as it relates to each issue will focus on the evidence led by the Crown".

[22] Likewise, in R. v. Zebedee (2006), 81 O.R. (3d) 583 (C.A.), the various appellants submitted that in terms of the review of the evidence, the charge consisted of a summary of the evidence called by the Crown in chief, and failed to review the deficiencies and frailties they had exposed during cross-examination. Writing together, LaForme and Moldaver JJ.A. stated, at para. 100:

The appellants are correct that the overview of the evidence was essentially a summary of the evidence led by the Crown in chief. But that is precisely what it was meant to be. The trial judge was not, at this juncture, explaining the position of the parties. He was merely alerting the jury to the events giving rise to the counts under consideration. That would have been apparent to the jury. In our view, there was nothing untoward or improper about the format used by the trial judge.

[23] Similar comments were provided by Watt J.A. in R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 139:

In some cases, evidence that tends to show an accused committed an offence far exceeds the evidence to the contrary. A balanced charge does not require a trial judge to ignore evidence that implicates an accused. Nor is a trial judge obliged to spin a web of exculpatory inferences, turning each piece of circumstantial evidence every which way to reveal its every possible inference. This proposition is all the more applicable where the defence position appears to be that the cumulative effect of all the evidence falls short of proof beyond a reasonable doubt. [Citation omitted.]

[24] In my view, the reasoning of Watt J.A. in Stubbs applies here. Mr. Speers did not lead any evidence. This was a case where the only issue was consent and only one of the parties involved in the admitted sexual touching provided evidence on what had occurred. The facts that M.H. was a drug addict and had a criminal record, while relevant to her credibility, were not direct evidence about whether she had consented to the sexual touching.

[25] As I see it, the trial judge fulfilled her obligations to the jury in summarizing the evidence. I therefore turn to the third factor in MacKinnon – the position of the parties.

ii. The Position of the Parties

[26] In her instructions, the trial judge spent about four times as long providing the Crown's theory of the case as she did providing the defence's theory of the case. However, according to R. v. Nelson, 2014 ONCA 853, 318 C.C.C. (3d) 476, at para. 47, there is no requirement that the trial judge spend the same amount of time reviewing the position of both sides. It is sufficient if the substance of the defence position is put to the jury.

[27] I note that the entire jury charge took less than an hour, and was delivered following counsel's closing addresses. As stated by Watt J.A. in Stubbs, at para. 137: "it is fundamental that a jury charge does not take place in isolation, but in the context of the trial as a whole. Appellate review of the adequacy of a jury charge encompasses the closing addresses of counsel. Those addresses may fill in some of the gaps, especially of evidentiary references, left in the charge".

[28] In R. v. Zebedee, LaForme and Moldaver JJ.A acknowledged that the trial judge had devoted little time to the position of the appellants in the charge to the jury. However, they held that the charge was sufficiently detailed in the context of the case, considering the closing address, and that fact that the case was not particularly complicated. They stated, at paras. 105-109:

First, although there were five accused and multiple counts, overall, the case was not complicated. Essentially it boiled down to the jury's assessment of the complainants' evidence. There was virtually no technical evidence and what little there was was easily understandable.

Second, the positions of the Crown and defence were straightforward and uncomplicated. Indeed, in the charge proper, the trial judge spent almost as little time on the Crown's position as he did on the defence. The recharge, however, was devoted almost entirely to the defence.

Be that as it may, we cannot stress enough the right, if not the duty of trial judges to take a functional approach to jury charges. Yes, the trial judge could have provided the jury with more details about the defence position, but in the face of five "united front" closing addresses by the defence, one could be forgiven for asking: "What would have been the point?" By the end of those addresses, we have no doubt that the jury could have rhymed off the position of the appellants in their sleep.

In sum, we wish to emphasize that this ground of appeal cannot and should not be approached on a "one-size-fits-all" basis. What will be adequate in one case may not be in another. Trial judges however, are in the best position to gauge how much or how little is required. On appellate review, their assessment of the matter should be afforded considerable deference.

[29] In my view the case most useful in considering this issue is R. v. Pomeroy, 2008 ONCA 521, 91 O.R. (3d) 261. In Pomeroy, the appellant had not testified at trial, and essentially relied on the Crown not having proven its case beyond a reasonable doubt. In finding the charge to the jury sufficient, Weiler J.A. made the following comments, at paras. 115-117:

Appellate courts must adopt a functional approach to reviewing jury charges. The purpose of such review is to ensure that juries are properly — not perfectly — instructed. In conducting an appellate review, the Supreme Court emphasizes in Daley at para. 57:

The extent to which the evidence must be reviewed "will depend on each particular case. The test is one of fairness. The accused is entitled to a fair trial and to make full answer and defence. So long as the evidence is put to the jury in a manner that will allow it to fully appreciate the issues and the defence presented, the charge will be adequate".

The functional approach also requires the appellate court not to divorce the jury charge from the greater context of the trial. The comments of counsel during their addresses, including comments on legal issues should also be considered in assessing whether the charge is adequate: see Daley at para. 58. Here, despite its facial imbalance, the trial judge's charge to the jury, when considered together with the closing addresses of counsel, provided the jury with an appreciation of the factual issues to be resolved, the evidence relating to the issues, the proper law to be applied, and the positions of the parties.

Conclusion

[30] As noted in Zebedee, the decision of the trial judge on how best to structure the jury charge is entitled to deference. Here, as in Pomeroy, despite its facial imbalance, the trial judge's charge to the jury, when considered together with counsel's closing submissions, provided the jury with an appreciation of the factual issues to be resolved, the evidence relating to the issues, the proper law to be applied, and the positions of the parties.

Disposition

[31] I would therefore dismiss the appeal.

Released: April 26, 2017 ("GE")

"Gloria Epstein J.A."

"I agree. H.S. LaForme J.A."

"I agree. Grant Huscroft J.A."