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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).
(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.
(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(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.
(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); 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.
(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
DATE: 20200304 DOCKET: C65145
Watt, Huscroft and Jamal JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
J.H. Appellant
Counsel: Ian B. Kasper, for the appellant Megan Petrie, for the respondent
Heard: August 20, 2019
On appeal from the conviction entered on December 7, 2017 by Justice Graeme Mew of the Superior Court of Justice, sitting with a jury.
Watt J.A.:
[1] In June, 2014 C.H. told J.H. (the appellant), her husband of 15 years: “Our marriage is over”. The appellant left the house. C.H. and the couple’s three children remained there.
[2] After a few hours of drinking, the appellant returned to the house. He got into bed with C.H. Despite her protests – “You can’t do this anymore” – and resistance, the appellant allegedly ripped C.H.’s underwear off and forcibly had sexual intercourse with her. He said: “You’re my wife, I can do whatever the hell I want with you”.
[3] About six months later, after the appellant had moved out of the house, a second incident of alleged sexual assault occurred. The appellant told C.H.: “I’m gonna make you pay for what you have done”.
[4] A jury found the appellant guilty of two counts of sexual assault.
[5] The appellant appeals his conviction. He advances several grounds of appeal. These reasons explain why I have concluded that his appeal should be dismissed.
The Background Facts
[6] The grounds of appeal advanced do not require a detailed recounting of the troubled relationship between the appellant and C.H. which preceded its demise. A brief reference will suffice. To the extent greater detail is required to understand a ground of appeal, it will be added there.
The Early Years
[7] C.H. and the appellant met when both were students at a community college. They married in 1999 and, over the next several years, had three children.
[8] It was apparent to C.H. early in the relationship that the appellant’s consumption of alcohol was problematic. She testified that “[t]here were multiple occasions that he got into trouble, some bars, some pubs.”
The Military Postings
[9] In 2000, the appellant joined the Canadian Armed Forces. The family moved frequently due to his military postings. On occasion, the appellant was aggressive towards one of the children.
[10] The appellant’s military postings included two tours of duty in Afghanistan. During these tours, C.H. remained in Canada with the couple’s children. During one tour of duty in Afghanistan, the appellant was injured. Later, he was diagnosed with Post-Traumatic Stress Disorder (PTSD).
Deterioration of The Marital Relationship
[11] Over the years, the marriage deteriorated. The appellant’s abuse of alcohol continued. He was absent from the marriage and the home for several periods because of foreign military postings. When he returned, he abused alcohol, C.H., and their children, two of whom had serious health issues. He also engaged in extra-marital affairs.
[12] The appellant was critical of C.H. He faulted her for anything that went wrong in the household or with the children. As a result, she sought counselling and assistance from various individuals and agencies.
The Marriage Breakdown
[13] The family moved to Kingston, where the appellant was posted in 2012. The appellant promised C.H. that they would make a “fresh start” and that he would stop drinking.
[14] The appellant’s promises did not come to fruition. His drinking continued. He became more aggressive towards C.H. and their children. He admitted an extra-marital affair. He became more distant in his relationship with C.H.
[15] In December, 2013 C.H. told the appellant to leave the house. He declined to do so.
The First Sexual Assault
[16] One day in June, 2014 C.H. told the appellant that the marriage was over. The appellant left the house. He went out drinking. He returned several hours later, after midnight.
[17] On his return, the appellant got into bed with C.H. He began touching her intimately. She told him that she could not do that anymore and to leave her alone. The appellant ripped C.H.’s underwear. He ignored her resistance. He said, “You’re my wife, I can do whatever the hell I want with you” and forced sexual intercourse upon her.
[18] C.H. did not report this incident because of concerns she had about her children. The couple remained together with the children in the same house.
The End of The Marriage
[19] A couple of months later, C.H. again asked the appellant to leave the house. Once again, he refused. The appellant ultimately agreed to attend an out-of-province in-patient facility to be treated for his alcohol addiction.
[20] When the appellant returned home, C.H. told him that their relationship was over. Some further problems with one of the children had resulted in the Children’s Aid Society (“CAS”) getting involved. C.H. continued to seek assistance from various agencies.
[21] The appellant and C.H. finally separated in mid-November, 2014.
The Second Sexual Assault
[22] One evening a few weeks after they had separated, the appellant called C.H. who was at home with their children. He asked C.H. for a ride to the place where he was living. C.H. agreed. En route, the appellant persuaded C.H. to let him stay with her and the children. She agreed.
[23] The appellant entered the bedroom where C.H. was in bed with all three children. She was fully clothed. The appellant picked C.H. up, carried her to another bedroom and threw her down on the bed. He tried to undress C.H. He touched her all over her body, including her private areas, despite her physical resistance and screams to stop. The appellant told C.H.: “I’m gonna make you pay for what you have done.” Shortly thereafter, the appellant fell asleep on top of C.H. She slipped out from under him and returned to bed with her children. The appellant left the next morning.
The Grounds of Appeal
[24] The appellant advances five grounds of appeal. He contends that the trial judge erred:
i. in failing to declare a mistrial because of the erroneous reception of evidence of the appellant’s uncharged disreputable conduct;
ii. in failing to restrict the trial Crown’s improper questioning of C.H. about her experience disclosing and testifying about the appellant’s conduct;
iii. in failing to instruct the jury on the permissible and impermissible uses of evidence of prior consistent statements and hearsay;
iv. in failing to instruct the jury on the differences between lack of evidence of a motive to fabricate and the absence of a motive to fabricate; and
v. in failing to provide corrective instructions about improprieties in the trial Crown’s closing address to the jury.
Ground #1: The Failure to Declare A Mistrial
[25] This ground of appeal challenges the trial judge’s failure to take remedial steps, in particular to declare a mistrial, because of the nature and extent of evidence of the appellant’s extrinsic disreputable conduct introduced at trial in C.H.’s testimony. An essential part of the complaint is that the evidence was received without a proper admissibility inquiry prior to its introduction.
The Additional Background
[26] To better understand the nature of the appellant’s complaint, some further background is helpful.
The Pre-Trial Proceedings
[27] Prior to jury selection, no pre-trial application was brought to determine the admissibility of any evidence of uncharged disreputable conduct on the part of the appellant. Put differently, neither party asked the trial judge to rule on the admissibility of this evidence before it was introduced during C.H.’s testimony.
The Discussion Prior to Jury Openings
[28] After the jury had been selected, but before either the trial judge or the Crown gave their opening remarks, the Crown (not counsel on appeal) alerted the trial judge to two evidentiary issues that would arise in the course of the trial.
[29] The Crown explained that the complainant would be testifying about the appellant’s disreputable conduct towards her prior to the commission of the offences charged. The Crown argued this evidence should be received on the basis that it tended to show the history of the couple’s relationship and the appellant’s animus towards her, and explained her delay in reporting the sexual assaults. No details of the proposed evidence were provided. However, the Crown did say that the conduct involved was not of the same magnitude as the offences charged.
[30] Defence counsel (not counsel on appeal) described the proposed evidence, the full extent of which he claimed not to know, as a double-edged sword. He had no objection to the evidence about excessive alcohol consumption and marital infidelity which preceded the first alleged sexual assault. However, he expressed concern about the extent of the evidence to be tendered and its use to explain the delay in reporting and in the complainant leaving the relationship. Counsel also requested the trial judge to instruct the jury on the use of this evidence.
[31] The trial judge was not asked to make and did not make any ruling on admissibility. He cautioned the Crown to be disciplined in his introduction of the evidence and told defence counsel to object if he saw things heading in a direction with which he was not comfortable.
The Admissibility Inquiry
[32] Neither counsel sought, nor did the trial judge direct, an inquiry into the admissibility of the evidence of the appellant’s prior disreputable conduct.
The Opening Addresses
[33] In his opening address, the Crown made some references to the appellant’s disreputable conduct, but provided little detail. Defence counsel did not object to the opening or suggest to the trial judge that an admissibility inquiry should be held to determine the extent of this evidence that the jury could hear.
The Evidence of Disreputable Conduct
[34] The evidence about which the appellant complains involves four types of conduct:
i. the rifle on the freezer;
ii. running from the police;
iii. absentee parenting; and
iv. aggression towards one of the children.
A brief description of each will suffice.
[35] C.H. testified that among several factors that caused her to take a leave of absence from work and led to the deterioration of the marital relationship, was her discovery of a rifle at the family home. Crown counsel elicited no further details. In cross-examination, C.H. agreed that she had no idea whether the rifle was operable. Shortly after the rifle was discovered, the appellant arranged for its disposal.
[36] C.H. gave evidence about how the appellant’s behaviour changed when he had been drinking. She illustrated what she meant by referring to a time when the appellant and a friend were in England on a military assignment. Both men were chased by the police. The Crown did not elicit any further details.
[37] In cross-examination, defence counsel suggested that the appellant's pursuer was a “London pimp”, not the “London police”. The complainant disagreed. She added that the appellant was also involved with the police in Halifax although he had not been charged with any offence. The trial judge intervened and instructed the complainant to confine her responses to the questions asked. Defence counsel used the latter exchange in his closing to the jury to illustrate C.H.’s telling of a “story” to discredit the appellant.
[38] The complainant also testified that, at various times during their relationship, the appellant had been absent from the family home, leaving her to parent their children. However, other evidence revealed that the appellant had been deployed twice to Afghanistan and that, even after separation, he had returned to assist in getting their older son to school.
[39] C.H. gave evidence that the appellant pushed or shoved their older son. The Crown did not expressly elicit this testimony; rather the complainant mentioned it as part of a more expansive answer about the appellant’s conduct prior to the assaults. Defence counsel suggested to C.H. that she had also been aggressive with their son.
The Motion for A Mistrial
[40] On the first day of trial, the complainant testified in-chief. Her testimony attracted no objection from defence counsel while the jury was present. However, at the end of the day, after the jury had been excused, defence counsel alerted the trial judge to several aspects of the complainant’s evidence that were of concern to him. The extensive evidence of narrative and context. Some hearsay. Leading questions by the Crown. And evidence of discussions the complainant recounted with a doctor, CAS staff, and a social worker. Counsel did not bring a mistrial application at that time, but foreshadowed one because, in his submission, the harm caused by the evidence could not be undone by the simple expedient of a limiting instruction.
[41] The following day, in the absence of the jury, defence counsel applied for a mistrial. He pointed out that evidence of extrinsic disreputable conduct was presumptively inadmissible. It was incumbent on the Crown to satisfy the judge, on a pre-trial application, that the probative value of this evidence outweighed its prejudicial effect. The Crown had failed to do so. Although counsel had discussed the admissibility issue at the pre-hearing conference, and had agreed on a course to circumnavigate the conduct underlying the appellant’s prior convictions, the volume of evidence of disreputable conduct adduced at trial far exceeded what counsel anticipated and caused prejudice which a limiting instruction could not cure.
[42] The trial Crown acknowledged that it would have been preferable to have had the admissibility issue litigated and decided by pre-trial application. On the other hand, the evidence was plainly admissible on several grounds and any moral or reasoning prejudice occasioned by it could be cured by limiting instructions.
The Ruling of The Trial Judge
[43] The trial judge dismissed the mistrial application. He acknowledged that the admissibility of the evidence should have been determined on a pre-trial application by the Crown. But, he was “pretty confident” that, had such an application been made, it would have been granted.
[44] Before the complainant was recalled to complete her examination in-chief and cross-examination, the trial judge instructed the jury how they must not use the evidence of extrinsic disreputable conduct. Neither counsel took issue with the content of this instruction.
The Arguments on Appeal
[45] The appellant says that the trial judge erred in dismissing the mistrial application. This error occurred because the trial judge reached the wrong conclusion about the admissibility of this evidence.
[46] The appellant contends that the disputed evidence was presumptively inadmissible. It was incumbent on the Crown to establish a case for admissibility on a pre-trial application by establishing, on a balance of probabilities, that the probative value of this evidence exceeded its prejudicial effect. The trial judge’s dismissal of the mistrial motion resulted from three errors related to the admissibility of the uncharged disreputable conduct evidence:
i. the failure to conduct a voir dire to determine admissibility;
ii. the failure to conduct a proper balancing of probative value and prejudicial effect; and
iii. the reception of evidence to establish animus and motive that lacked probative value on those issues.
[47] The respondent rejects any suggestion of error in dismissal of the mistrial motion. The evidence of disreputable conduct was relevant and admissible as narrative; to establish animus and motive; and to provide context for evidence about the offences charged.
[48] In prosecutions involving allegations of domestic abuse, the respondent says, evidence of uncharged disreputable conduct may be relevant to show the nature and dynamics of the relationship; to prove animus or motive; to explain the delay in reporting; and to rebut a claim that the allegations have been fabricated. In this case, the respondent continues, the evidence adduced was relevant to and properly admissible on each of these issues.
[49] The respondent takes issue with the appellant's claim of prejudicial error in the failure of the Crown to request, or the trial judge to conduct, an inquiry into the admissibility of this evidence prior to its introduction before the jury. Before trial, the parties discussed and reached a “give and take” agreement about the admissibility of this evidence. Each wanted to avoid disclosure of any conduct which had resulted in the appellant’s prior convictions. This was done. And the evidence of uncharged disreputable conduct adduced at trial did not exceed the expectations of either party.
[50] It is well established, the respondent continues, that decisions on whether to declare a mistrial involve the exercise of judicial discretion. It follows that decisions on this issue are subject to substantial deference when challenged on appeal. In this case, the trial judge applied the proper principles and concluded that a less drastic remedy – a limiting instruction – was sufficient to contain any prejudice which might arise from the introduction of the evidence. Decisions about the adequacy of alternative remedies are also discretionary, thus are equally entitled to deference on appeal. In neither case should we interfere.
The Governing Principles
[51] To evaluate this ground of appeal requires consideration and application of principles governing evidence of uncharged disreputable conduct and the procedure to determine its receivability. And we must take into account not only the test to be applied on a motion for a mistrial, but also the standard we are to apply on reviewing decisions rendered on those motions.
The Receivability of Evidence of Uncharged Disreputable Conduct
[52] To be receivable in a criminal trial, evidence must be relevant, material and admissible. Evidence is relevant if it tends to prove what it is offered to prove. Evidence is material if what it is offered and tends to prove is something with which the law is concerned. And evidence is admissible if its reception does not offend any exclusionary rule of evidence and its probative value exceeds its prejudicial effect: R. v. Calnen, 2019 SCC 6, 374 C.C.C. (3d) 259, at paras. 107-9; R. v. J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 49.
[53] When evidence of uncharged disreputable conduct is tendered by the Crown, the evidence is generally, but not always, inadmissible: R. v. Robertson, [1987] 1 S.C.R. 918, at p. 941; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 31, 36; and R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 221. The general prohibition arises because of the baggage – moral and reasoning prejudice – this evidence brings with it. We prohibit prosecutorial use of character evidence, and thus evidence of uncharged disreputable conduct to establish character, as circumstantial proof of conduct: Luciano, at paras. 116, 221; Handy, at para. 31.
[54] Like other admissibility rules, this general rule of exclusion capitulates on occasion. It yields where the probative value of the proposed evidence exceeds its prejudicial effect: Handy, at para. 55; Luciano, at para. 222; and J.A.T., at paras. 51, 54. Whether the evidence will be admitted by exception or excluded under the general rule is a function of the circumstances of each case. These circumstances determine where the balance as between probative value and prejudicial effect will settle, not some prefabricated rule or exclusive list of exceptions: J.A.T., at para. 54.
[55] Despite the absence of any such rule or list of exceptions, evidence of uncharged disreputable conduct has often been received in prosecutions alleging assaultive behaviour in a domestic relationship, including charges of sexual assault. Among the issues upon which this evidence has been admitted are these:
i. as part of the narrative of relevant events;
ii. to provide context for other evidence;
iii. to facilitate understanding of the nature of the relationship between the principals;
iv. to demonstrate motive or animus on the part of the accused for committing the offences;
v. to explain the failure of the complainant to leave the relationship or to report the abuse earlier; and
vi. to rebut a claim of fabrication.
See R. v. F., D.S. (1999), 43 O.R. (3d) 609 (C.A.), at pp. 616-17; R. v. R., B.S. (2006), 81 O.R. (3d) 641 (C.A.), at para. 38.
The Procedure to Determine Admissibility
[56] The admissibility of evidence tendered for reception in a criminal trial is for the trial judge to determine: R. v. B. (G.), [1990] 2 S.C.R. 57, at p. 71; R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, at para. 115. After all, admissibility is a legal concept governed by rules that are primarily exclusionary, but subject to inclusionary exceptions. In a jury trial, the presiding judge has the duty to ensure that only relevant, material and admissible evidence gets before the jury: J.A.T., at para. 50; R. v. B. (F.F.), [1993] 1 S.C.R. 697, at pp. 735-36.
[57] In trials in the Superior Court of Justice, any party who seeks admission of evidence that a common law or other rule renders presumptively inadmissible must apply to the trial judge for an order permitting its reception. This is the effect of rr. 30.01 and 30.02(1) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, as amended by SI/2014-5, s. 17. Rule 30.01(a) applies specifically to evidence of disreputable conduct by an accused, other than the conduct charged in the indictment.
[58] The prevailing practice in this province is to invoke s. 645(5) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, together with rr. 30.03-30.05, to have the application heard and determined in advance of jury selection. Scheduling is done at or after the mandatory pre-hearing conference under s. 625.1(2) of the Criminal Code. The form the admissibility inquiry will take is for the judge to decide: R. v. Evans, 2019 ONCA 715, 147 O.R. (3d) 577, at para. 148.
[59] It may not be necessary in all cases to conduct an admissibility inquiry in accordance with the procedure prescribed by the Criminal Proceedings Rules. An express waiver by counsel of the necessity for an inquiry, and an admission that the proposed evidence is admissible, may obviate the necessity for an inquiry: R. v. Park, [1981] 2 S.C.R. 64, at pp. 73-74.
[60] The failure to conduct an admissibility inquiry may amount to procedural error capable of vitiating a conviction: Park, at pp. 69-70. But whether such a consequence will ensue from the failure will depend on the circumstances of each case. In some instances, the failure may be rendered harmless by the application of a curative proviso: R. v. D.A.R., 2012 NSCA 31, 314 N.S.R. (2d) 331, at para. 19.
Mistrial Applications
[61] A mistrial is a remedy of last resort, ordered only where it is necessary to prevent a miscarriage of justice. A mistrial should be declared only after a trial judge has considered and rejected as inadequate other less extreme remedies, such as mid-trial limiting or curative instructions: R. v. A.G., 2015 ONCA 159, 124 O.R. (3d) 758, at para. 50; R. v. Chiasson, 2009 ONCA 789, 258 O.A.C. 50, at para. 14; and R. v. Burke, 2002 SCC 55, [2002] 2 S.C.R. 857, at paras. 75, 77.
[62] The trial judge is best positioned to determine whether a mistrial should be granted or whether some lesser remedy, such as a mid-trial instruction, is an adequate antidote to the prejudice that has seeped into the trial. On this issue of choice of remedy, appellate courts owe substantial deference to the trial court and should intervene only in cases where the conclusion is clearly wrong or is grounded on an erroneous principle: A.G., at paras. 51-52; Chiasson, at para. 14.
The Principles Applied
[63] I would not give effect to this ground of appeal. My assessment of it proceeds through a series of steps.
[64] At the outset, recall that it was uncontroversial at trial that throughout the marriage, especially in its waning stages, the appellant abused alcohol, C.H., and – at times – his children. He had extra-marital affairs. The relationship had become toxic. Both parties, as individuals and together, had attended or sought the assistance of individuals or organizations for counselling. Evidence of these efforts and the reasons underlying them was before the jury.
[65] The appellant’s principal arguments in support of this ground of appeal relate to four items of evidence:
i. the rifle on the freezer;
ii. running from the police;
iii. absentee parenting; and
iv. pushing or shoving one of the children.
At least three of these incidents were uncontroversial. There was no doubt that each had occurred. The fourth – running from the police – appears to be hearsay since it is unclear that C.H. was present to witness these events.
[66] First, admissibility.
[67] Leaving to one side the incidents involving the rifle on the freezer and running from the police, the other incidents tend to show the nature of the marital relationship of C.H. and the appellant; thus they provide context for the other evidence and assist in unfolding the narrative.
[68] Evidence about possession of a rifle and running from the police in Halifax and in London, England lacked relevance on any material issue. On the other hand, neither of these items of evidence were likely to engender any moral or reasoning prejudice. There was no evidence that the rifle was operable, much less used as an instrument of intimidation. The appellant arranged for its disposal. And it was made clear that the London incident did not involve any allegations of criminal conduct. The incidents were markedly less serious than the offences charged. The details revealed to the jury about each were sparse, briefly recounted, and not the subject of protracted questioning.
[69] In the result, I am not satisfied that introduction of the evidence about the four incidents which form the core of this complaint compromised the validity of the verdict or the fairness of the appellant’s trial.
[70] Second, the failure to hold an admissibility inquiry.
[71] The record on appeal does not disclose any discussions about the admissibility of evidence of uncharged disreputable conduct that may have occurred at the pre-hearing conference required under s. 625.1(2) of the Criminal Code. This deficiency underscores the importance of pre-hearing conferences and, more particularly, delivery of the pre-hearing conference report and its review by the trial judge in advance of trial. This enables discussion and, where necessary, resolution of evidentiary issues in advance of jury selection.
[72] What does appear from the record is that counsel had discussed the evidence of uncharged disreputable conduct in advance of trial. They agreed to refrain from introducing evidence of the conduct upon which the appellant’s prior convictions had been based. The extent of the agreement beyond that is unclear.
[73] What occurred in this case – an after-the-fact complaint about evidence of uncharged disreputable conduct and a motion for a mistrial – was avoidable. The uncertainty could and should have been resolved in advance of jury selection. A simple statement of the nature of the agreement. A discussion clarifying any areas of uncertainty. At bottom, it was for the Crown to establish a case for admissibility and for the trial judge to settle the issue after inquiry. Neither occurred.
[74] Despite these omissions, I am not persuaded that the failure to conduct an admissibility inquiry resulted in the introduction of inadmissible evidence that tainted the validity of the jury’s verdict or otherwise compromised the fairness of the trial.
[75] It is well-settled that the failure to conduct an admissibility inquiry does not, without more, preclude upholding on appeal the verdict rendered at trial. Such a failure is a procedural irregularity, and thus within the potential reach of the proviso in s. 686(1)(b)(iv) of the Criminal Code.
[76] In this case, no miscarriage of justice occurred as a result of this procedural omission. The only aspects of the evidence of uncharged disreputable conduct that was inadmissible – the rifle and the encounters with police – were unlikely to engender propensity reasoning. The entire package of evidence of uncharged disreputable conduct was the subject of a mid-trial instruction enjoining impermissible use. The instruction was repeated in the charge. And this was evidence well-known to defence counsel.
[77] Finally, the failure to declare a mistrial.
[78] Decisions on motions for mistrials involve the exercise of judicial discretion. A mistrial is a remedy of last resort. It is appropriate only in cases in which it is necessary to prevent a miscarriage of justice when all other less extreme remedies have been rejected as inadequate. The trial judge was there. We were not. His decision to decline to order a mistrial, and to instead provide and later repeat a specific instruction enjoining prohibited reasoning, is entitled to deference. That decision was not unreasonable. Nor was it compromised by consideration of any erroneous factor, or a failure to consider any relevant factor. In the absence of error, this ground of appeal fails.
Ground #2: Improper Questioning of the Complainant
[79] This ground of appeal challenges the propriety of several questions the Crown asked the complainant in concluding her examination-in-chief. The questions, unchallenged at trial, are now said to have been improper, the answers they elicited from C.H., inadmissible, and the result, a fatal blow to the appellant’s entitlement to a fair trial.
The Essential Background: The Impugned Questioning
[80] On the second day of trial, immediately after the trial judge had instructed the jury about the permitted and prohibited use of evidence of uncharged disreputable conduct, the Crown continued his examination-in-chief of the complainant for a further 20 minutes.
[81] During this time, the Crown asked three questions to which objection is now taken:
Q. [C.H.], can you tell us how you feel about testifying today?
Q. Okay. Looking back on it now, can you think of anything good that has coming out of – come out of telling police about what happened?
Q. Okay. And if you had it – looking back on all of this right up to today, if you had [to do it] over again, would you have told police?
[82] After a brief adjournment, defence counsel cross-examined C.H. At no point in the trial did defence counsel complain about this aspect of the examination-in-chief or seek any remedial instruction about it.
The Arguments on Appeal
[83] The appellant says that the excerpted questions were improper. The evidence the examiner sought to elicit was irrelevant and therefore inadmissible. C.H.’s “general experience testifying” at trial was of no assistance in assessing her credibility as a witness or the reliability of her testimony. Equally so her experience with the criminal justice system, and the reaction of her children to her disclosure and testimony. And her statement, “The truth is the truth”, amounted to nothing more than oath-helping and should not have been permitted.
[84] The examiner’s questions represented a not-so-subtle attempt to inflame the jury’s emotions, to invite the jurors to decide the case based on their sympathy for the complainant, rather than by an objective assessment of the evidence. The trial judge should have intervened. His failure to do so caused a miscarriage of justice.
[85] The appellant adds that the impropriety of this questioning was exacerbated by the Crown’s closing address, which emphasized that by reporting her allegations and testifying the complainant had done a “hard thing” for which she had paid a huge price. These submissions also warranted judicial intervention and remedial instructions. But, once again, the trial judge did nothing. This failure, coupled with the Crown’s questioning and jury address, compromised the fairness of the trial and caused a miscarriage of justice. A new trial is necessary.
[86] The respondent submits that the relevant inquiry on appeal is whether what occurred caused a miscarriage of justice. Whether considered alone or together, the questioning and closing address fall well short of this standard.
[87] The respondent says there is a distinction between Crown conduct that is improper and conduct that compromises trial fairness. This is a case of impropriety, at worst.
[88] Several factors suggest that trial fairness was not compromised. Experienced defence counsel did not object to the questioning or the jury address. He did not move for a mistrial. He did not seek a curative instruction. The questions and answers were but a small part of the complainant’s evidence. They were followed by a comprehensive cross-examination. Finally, the charge to the jury emphasized the irrelevance of sympathy and prejudice to the jury’s evaluation of the evidence and their process of reaching a verdict.
The Governing Principles
[89] Several principles are of service in resolving this ground of appeal.
[90] First, the role or duty of Crown counsel in criminal prosecutions.
[91] Counsel for the Crown occupies a special position in the prosecution of criminal offences, a position which excludes any notion of winning or losing: Boucher v. The Queen, [1955] S.C.R. 16, at pp. 21, 24; R. v. A.T., 2015 ONCA 65, 124 O.R. (3d) 161, at para. 26; R. v. Brown, 2001 BCCA 14, 152 C.C.C. (3d) 437 (“Brown (BCCA)”), at para. 15; and Pisani v. The Queen, [1971] S.C.R. 738, at p. 740. Although most often associated with other aspects of the trial process, such as cross-examination of an accused witness or the closing address to the jury, the authorities direct Crown counsel to eschew appeals to emotion: Brown (BCCA), at para. 15.
[92] Nor is counsel for the Crown entitled to advance legally impermissible submissions that invite legally prohibited reasoning or effectively undermine trial fairness: R. v. Mallory, 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 340; A.T., at para. 27; see also R. v. Ahmed, 2015 ONCA 751, 330 C.C.C. (3d) 60, at para. 43.
[93] Second, bolstering credibility.
[94] The rule against oath-helping prohibits the reception of evidence solely for the purpose of establishing the truthfulness of a witness: R. v. Llorenz (2000), 145 C.C.C. (3d) 535 (Ont. C.A.), at para. 27. This rule applies to evidence that tends to prove the truthfulness of the witness rather than the truthfulness of the witness’ evidence: Llorenz, at para. 27; see also B. (F.F.), at p. 729.
[95] It is not always easy to determine when evidence crosses the line into impermissible oath-helping. The authorities distinguish between evidence about credibility – e.g., a witness’ opinion that another witness is telling the truth – and evidence about a witness’ behaviour or testimony, which may be admissible despite the likelihood that it will affect the trier of fact’s ultimate determination of the issue of credibility: Llorenz, at para. 28.
[96] Third, evidence of victim’s character.
[97] In criminal trials the victim’s character is not generally relevant. Thus evidence on this issue is not admissible – although it may be in some cases: R. v. Jack (1992), 70 C.C.C. (3d) 67 (Man. C.A.), at p. 86; R. v. White, 2014 ONCA 64, 305 C.C.C. (3d) 449, at para. 171, leave to appeal refused, [2014] S.C.C.A. No. 500.
[98] Fourth, the obligation of the trial judge with respect to the introduction of evidence.
[99] As explained above, that obligation is to ensure that only relevant, material, and admissible evidence is received: J.A.T., at para. 50; B. (F.F.), at pp. 735-36. It is also incumbent upon counsel conducting a case, whether prosecuting or defending, examining in-chief, cross-examining or re-examining, to adduce evidence that is relevant, material and admissible: Evans, at para. 100.
[100] Finally, the effect of a failure by counsel to adhere to the rules respecting the introduction of evidence.
[101] At trial, the presiding judge has a duty to intervene to ensure compliance, at least in cases in which the contravention may result in the introduction of evidence prejudicial to the accused: A.T., at para. 29. Failure of defence counsel to object does not bar a successful appeal on this ground. Nor does appellate success inevitably follow. On appellate review, the question is whether, in the context of the entire trial, the evidence or other conduct (including any response or lack of response by the trial judge) caused a substantial wrong or miscarriage of justice: A.T., at paras. 30-31; R. v. Romeo, [1991] 1 S.C.R. 86, at p. 95.
The Principles Applied
[102] I would not accede to this ground of appeal.
[103] It is difficult to determine on what basis the trial Crown considered these questions were proper. The evidence they elicited was not relevant. Or material. Or admissible. The questions should not have been asked. Their answers should not have been reviewed in the Crown’s closing address to the jury. The questions and their predictable responses invited jurors’ emotional reaction to the evidence, not their objective assessment of it.
[104] On the other hand, in this court the question is not about performance, but effect – about whether what occurred resulted in the introduction of evidence which compromised the fact-finding process or rendered the trial unfair. I am not satisfied that it did.
[105] The evidence in issue is brief. It was adduced at the outset of the complainant’s testimony on the second day of trial. It was preceded by a clear, focused instruction about the permitted and prohibited use of evidence of uncharged disreputable conduct. It was followed by a lengthy cross-examination. It attracted no objection from defence counsel and no request for a remedial instruction.
[106] In these circumstances, I would not give effect to this ground of appeal.
Ground #3: Limiting Instructions on Prior Consistent Statements and Hearsay
[107] This ground of appeal relates to evidence of C.H.’s disclosure to various individuals or agencies of her allegations of sexual assault. C.H. was the only witness at trial. None of the recipients of her disclosures testified.
The Essential Background
[108] At trial, C.H. testified about her contact and discussions with persons at various agencies. A social worker. Medical staff. Employees of CAS and a women’s shelter. A lawyer. And ultimately, the police. Few details of the substance of the allegations of sexual assault emerged from her descriptions. To the extent that details did emerge, they were elicited in cross-examination.
[109] No objection was taken to the admissibility of the complainant’s testimony about her disclosure of her allegations of sexual assault. Nor was the trial judge asked, during the pre-charge conference or by objection after the charge was delivered, to instruct the jury in the manner now said to have been essential. In the result, no instruction was provided to the jury about how they were or were not entitled to use this evidence in reaching their decision.
[110] In his charge to the jury, the trial judge repeated his mid-trial instruction about evidence of uncharged disreputable conduct. He also included typical instructions about the prior inconsistent statements of the complainant and explained to the jury how they were to assess the complainant’s evidence.
The Arguments on Appeal
[111] The appellant argues that evidence of the complainant’s disclosures was admitted ostensibly to explain her delay in reporting and in leaving the relationship. But neither was in issue at trial. These disclosures included prior consistent statements and hearsay. Each required limiting instructions. But none were provided. This left the jurors untutored about the permissible use of this evidence, free to use it as they saw fit – including, for example, as confirmation of C.H.’s testimony. The result was an unfair trial and a miscarriage of justice.
[112] The respondent submits that the complainant’s prior disclosures were admissible under the narrative exception to the general rule prohibiting admission of the prior consistent statements of a witness. The evidence assisted the jury in understanding how the complainant’s allegations were disclosed and came to be before the court for the trial of their truth.
[113] The respondent accepts that, as a general rule, this evidence requires a limiting instruction to ensure the jury uses it in a permissible way. But, in some cases, no limiting instruction is required.
[114] This is one such case. No limiting instruction was required, the respondent submits, for several reasons. Few details of the content of the statements were disclosed. To the extent any details of the disclosure were admitted in evidence, that testimony was adduced by defence counsel, a fact about which he can hardly now complain. In fact, the appellant relied on these statements as part of his defence that the complainant was an incredible witness. Further, no concern about self-corroboration arose. The statements were tendered as part of the narrative; no one suggested they could be used as proof the offences were committed.
The Governing Principles
[115] The governing principles are uncontroversial, though the parties differ on the consequences of their application in this case.
[116] First, admissibility.
[117] As a general rule, prior consistent statements of a witness are not admissible in criminal proceedings. This is because they are considered to be at once self-serving and devoid of probative value: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. M.A.J., 2015 ONCA 725, 329 C.C.C. (3d) 149, at para. 45. The statements are considered unhelpful because they add nothing new to the evidence. And they are potentially dangerous because they may mislead the trier of fact into thinking that repetition bespeaks truth: R. v. Divitaris (2004), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28; R. v. D.K., 2020 ONCA 79, at paras. 34-35.
[118] Like most admissibility rules, exceptions exist. Prior consistent statements may be admitted:
i. to rebut an allegation of recent fabrication;
ii. to rebut impeachment of the witness by prior inconsistent statements;
iii. to provide context for other evidence; or
iv. as evidence of narrative.
The list is illustrative, not exhaustive: see M.A.J., at para. 46.
[119] Second, jury instructions.
[120] As with other evidence of limited admissibility, when evidence of prior consistent statements is received in a jury trial, as a general rule, the trial judge must instruct the jury about the permitted and prohibited use of this evidence: Divitaris, at para. 31; J.A.T., at paras. 50, 53.
[121] But once again, an exception. Limiting instructions are not always required. As, for example, where the accused relies on the prior statement. Or it is clear at trial that neither party is relying on the prior statement as evidence of the truth of its contents. Or where no concern about self-corroboration arises: M.A.J., at para. 47; R. v. C.B., 2008 ONCA 486, 237 O.A.C. 387, at paras. 49-51; R. v. P.S. (2000), 144 C.C.C. (3d) 120 (Ont. C.A.), at paras. 24-26, leave to appeal refused, [2000] S.C.C.A. No. 486. Also within the exception are cases in which no detail is given of the statement or where the statement is admitted as narrative: R. v. G.M., [2000] O.J. No. 5007 (C.A.), at para. 2.
[122] Finally, the impact of any errors.
[123] A failure to provide a limiting instruction to the jury where one is required is an error of law. But legal errors are not always fatal. Where the errors do not cause a substantial wrong or result in a miscarriage of justice, the verdict rendered at trial may be sustained by the application of the proviso in s. 686(1)(b)(iii) of the Criminal Code.
The Principles Applied
[124] A combination of factors persuades me that this ground of appeal fails.
[125] First, as to admissibility. No argument is advanced that this evidence was inadmissible. At the very least, it was properly received as part of the unfolding of the narrative of relevant events.
[126] Second, this is not a case in which the jury heard the prior statements in rich detail. Quite the contrary. The Crown elicited little more than the fact of disclosure from the complainant. To the extent that the disclosure was amplified by detail, it tended to emerge in cross-examination. It seems reasonable to say that, to the extent a trier of fact may be inclined to mistake repetition for truth, this is more likely to occur when the details of each prior statement have been repeated before them. But that was not the case here.
[127] Third, defence counsel used this evidence to buttress the defence position that the complainant was an incredible witness who gave unreliable evidence.
[128] Fourth, experienced trial counsel neither sought nor complained about the absence of the instruction now said to have been critical to a reasoned assessment of the complainant’s testimony and the fairness of the trial. The person at trial most attuned to the appellant’s interests saw it otherwise. As do I.
Ground #4: Instructions on Motive to Fabricate
The Essential Background
[129] This ground of appeal focuses on the closing addresses of trial counsel, especially that of the Crown. Some reference to the pre-charge conference, the charge itself, and the objections to the charge will provide sufficient context.
The Closing Addresses of Counsel
[130] Since the defence adduced no evidence, the Crown addressed the jury first.
[131] The Crown portrayed the complainant as a person who had made a difficult decision to report sexual assaults committed by her husband. She made the decision and has lived with it despite it having resulted in the loss of her family – in particular, her children. She was not vindictive and did not make these events up, but rather accurately and truthfully recounted what had happened.
[132] Two passages in the Crown’s closing address illustrate the approach he invited the jury to take in assessing the complainant’s evidence:
It was a horrible truth – in her words, a horrible truth that she had to tell. She has no motive to make this up. There’s nothing in it for her. This was a woman trying to make a relationship work. There was no joy. And you heard her when she turned and talked to you. Who wants to tell their most intimate and personal aspects of their life in a courtroom to strangers including members of the jury? So … is there any basis to question what she was telling you, to have any doubt or to question her credibility, her believability, her truthfulness?
There is no reason to doubt that [C.H.] was telling you the truth. She found her voice. She told you what happened. She did not fabricate. She is not vindictive. She is not nasty. She is not losing her children just for the sake of putting forward a false sexual assault allegation. She is here. She did a hard thing. She has paid a huge price. Her evidence is compelling and convincing. No reason to doubt it. If you believe her evidence, you should have no reasonable doubt and you must convict.
[133] In his closing address, defence counsel vigorously attacked the complainant’s credibility and the reliability of her evidence. He suggested that her testimony was fabricated and that she had perjured herself before the jury.
The Pre-Charge Conference
[134] At the pre-charge conference, the Crown sought an instruction on motive as it related to motive on the part of the appellant to sexually assault the complainant. Defence counsel resisted an instruction about the appellant’s motive, but acknowledged that the standard instruction on the issue was balanced.
[135] As for the complainant’s motive to fabricate, defence counsel emphasized that he was under no obligation to prove that C.H. had any such motive. He did not seek an instruction on this issue. Counsel expressed concern that an instruction on motive would deflect the jury’s attention from the essential issue, which was whether the sexual assaults alleged by the complainant had in fact occurred.
The Charge and Objections
[136] In his charge, the trial judge said nothing about the motive, or absence of motive, of the complainant to fabricate her allegations of sexual assault.
[137] Defence counsel did not object to the absence of an instruction on motive. The jury did not ask any questions on this issue.
The Arguments on Appeal
[138] The appellant submits that in his closing address at trial, the Crown relied extensively on the complainant’s lack of a motive to fabricate her accounts of sexual assault. But the law distinguishes between a lack of evidence of a motive to fabricate and a proven lack of a motive to fabricate. What we have here, the appellant says, is the former. And that is not the equivalent of evidence that the witness is telling the truth. Nor is it evidence that the witness does not have a motive to fabricate.
[139] In his closing address, the Crown argued that the complainant had no motive to fabricate her evidence. He emphasized the negative consequences of her reporting the sexual assaults. In these circumstances, the trial judge’s failure to give a corrective instruction warrants a new trial.
[140] The respondent says that when set in its proper context, the closing address of the Crown did not require a corrective instruction to guard against improper reasoning or ensure the fairness of the trial.
[141] The respondent does not gainsay that the presence or absence of a motive to fabricate is a relevant factor, among many, for the trier of fact to consider in assessing the credibility of a witness and the reliability of their evidence. The problem arises when language is used that suggests the accused has the onus of proving the witness had a motive to fabricate. That did not happen here.
[142] In this case, the respondent contends, the defence position was that the complainant had fabricated her evidence of the sexual assaults and had “put on a show” for the jury. When Crown counsel sought an instruction on motive on the part of the appellant to commit sexual assaults, defence counsel resisted any instruction on motive. The trial judge did instruct the jury on motive, but limited it to the long-standing animus of the appellant towards the complainant as a motive for the appellant to commit the offence charged. The jury was repeatedly instructed on the burden of proof and specifically informed that the appellant was not required to present any evidence. Considered as a whole, the instructions adequately equipped the jury to decide the case.
The Governing Principles
[143] In criminal prosecutions, motive refers to ulterior intention – the reason or purpose underlying a person’s conduct. The term is most often used to refer to the motive of an accused to commit the offence charged.
[144] The authorities considering evidence of motive as a means of establishing the identity or anterior intention of the person who committed the actus reus of an offence emphasize the importance of a proven absence of motive in exculpation of an accused and a proven presence of motive in inculpation: Lewis v. The Queen, [1979] 2 S.C.R. 821, at pp. 825-37. But those same authorities underscore the significant difference between absence of proven motive and proven absence of motive: Lewis, at pp. 835-37.
[145] Motive may also be significant in connection with witnesses in criminal trials. The motive of a witness to testify more or less truthfully may be a relevant factor for a trier of fact to consider in assessing their credibility and the reliability of their testimony. Thus, questions may be directed to a witness to show that the witness has a motive to fabricate evidence: R. v. Batte (2000), 49 O.R. (3d) 321 (C.A.), at para. 120.
[146] The distinction between absence of proven motive and proven absence of motive has equal application to the motives of a witness to fabricate evidence. By parity of reasoning with the motive of an accused to commit an offence, the absence of a demonstrated motive to fabricate on the part of a witness does not necessarily mean that there is no such motive. Nor does the absence of a motive to fabricate conclusively establish that the witness is speaking truthfully. The presence or absence of a motive to fabricate is a factor, a single factor, for the trier of fact to consider in assessing credibility: Batte, at para. 121.
[147] Because the presence and absence of a motive to fabricate are relevant factors in the assessment of a witness’ credibility, it is open to counsel to refer to this issue in their closing addresses to the jury. Depending on what is said, it may become necessary for the trial judge to provide a corrective instruction: R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at paras. 40-47.
[148] There is no closed list of circumstances that may require a trial judge to provide corrective instructions when counsel in their closing addresses have made submissions about a witness’ motive to fabricate. The obligation may be engaged where counsel suggests that the presence or absence of a motive to fabricate has been proven, but no such proof exists. Or where counsel invites the jury to focus on what had not been proven, such as a credible motive to lie, rather than what had been proven – creating a risk that the jury would reason that failure to demonstrate a motive to lie means the witness was telling the truth. Or where the address suggests that the accused has the burden of demonstrating a motive on the part of a prosecution witness to fabricate evidence: Batte, at para. 121; L.L., at paras. 42, 47-50; R. v. M.B., 2011 ONCA 76, 267 C.C.C. (3d) 72, at paras. 31-32.
[149] Whether a corrective instruction will be required in light of counsel’s references to the motive of a witness to fabricate evidence depends on the circumstances of each case: Batte, at paras. 123, 126. The absence of an express instruction does not always leave the jury without the tools necessary to consider the presence or absence of a motive as a relevant factor in determining credibility. Juries are repeatedly told to use their common sense and their life experience in assessing the credibility of witnesses. It is difficult to think of a factor that, as a matter of common sense and human experience, would be more telling of a witness’ credibility than the existence – or the absence – of a motive to fabricate: Batte, at paras. 120, 126.
The Principles Applied
[150] Several reasons persuade me that this ground of appeal fails.
[151] First, the appellant’s complaint of prejudicial omission is raised for the first time on appeal. What is more, it represents a reversal of the position taken by experienced counsel at trial. When the Crown sought an instruction on motive, albeit on a different but related issue, defence counsel resisted it. Neither then nor subsequently did trial counsel seek the instruction now said to be essential to a fair trial and critical evaluation of the complainant’s testimony.
[152] Second, this is a complaint about a failure to instruct -of non-direction rather than misdirection. Doubtless, more could have been said than was included in the final instructions. The same could be said of almost every jury charge. But perfection is not the applicable standard. Nor could it be. Final instructions must adequately equip jurors to perform their task. No more is required. No less is sufficient. And that task is to decide the case at hand. On the evidence adduced. In accordance with the governing legal principles. These instructions were adequate to that task.
[153] Third, the subject-matter of the complaint is not estranged from the frequently invoked admonition to jurors to use their common sense and life experience. A motive to fabricate evidence would commend itself to the common sense and life experience of a juror as being of significance in an assessment of a witness’ credibility and the reliability of her evidence. Likewise, the absence of any such motive.
[154] Further, the trial judge’s instructions about the assessment of evidence and the credibility of witnesses made it clear that the assessment required a holistic approach involving the consideration of myriad factors.
[155] Finally, this is not a case in which the closing address of the Crown or the instructions of the trial judge expressly or by necessary implication shifted to the appellant the burden of establishing a motive on the part of the prosecution witness to fabricate. The burden of establishing guilt remained where it should have been, not dislodged by any requirement that the appellant prove a nefarious motive on the part of the complainant.
Ground #5: Closing Address of Crown Counsel
[156] The final ground of appeal also alleges non-direction, a failure of the trial judge to provide an instruction to the jury to remedy things said by the Crown in his closing address to the jury.
[157] A brief reference to the closing address of the Crown and what occurred thereafter will provide an adequate setting for the discussion that follows.
The Essential Background
[158] This was a one-witness trial.
[159] From time to time in his closing address to the jury, the Crown referred to the evidence of the complainant as “uncontested” or “unchallenged”. He also pointed out that C.H. “wasn’t really cross-examined much” on the details she provided about the offences charged.
[160] Trial counsel did not object to the Crown’s closing address nor seek any remedial or corrective instruction to contain or alleviate any prejudice caused by it. The trial judge did not include any corrective directions in his final instructions, but did include references to the burden of proof, the presumption of innocence, and the standard of proof.
The Arguments on Appeal
[161] The appellant says that the address of the Crown improperly urged the jury to consider how the defence was conducted as probative of the appellant’s guilt. This was wrong. It amounted to a subtle shift in the burden of proof. The questions asked, or not asked, by counsel are not evidence. They cannot be relied upon as evidence or a makeweight to satisfy the burden of proof settled upon the Crown. Further, the conduct of the trial is in the hands of counsel, not the accused. How counsel conducts the case – in particular, how counsel cross-examines witnesses – is not and cannot become evidence against an accused.
[162] According to the appellant, these aspects of the Crown’s closing address required remedial correction by the trial judge. None was provided. To the contrary, the trial judge exacerbated the problem by recounting these features of the Crown’s closing as part of the position of the Crown the judge summarized in his charge to the jury.
[163] The respondent contends that an assessment of the impact of any impropriety in the closing address on the fairness of the trial requires a contextual assessment of the trial as a whole. The issue is whether, viewed in this way, the remarks caused a miscarriage of justice. The answer is that no such miscarriage of justice occurred.
[164] An important factor is the position of the appellant at trial. There, experienced counsel did not object to the Crown’s closing. Or seek a mistrial. Or ask for a corrective instruction. While not dispositive, these omissions afford cogent evidence of the complete absence of prejudice arising from the closing address of the Crown.
[165] In a case in which the evidence of the single witness is not the subject of contradictory evidence, there is nothing wrong with a reference in closing that the evidence is “uncontradicted” or “unchallenged”. This statement of the obvious is not a comment forbidden by s. 4(6) of the Canada Evidence Act because it does not invite the jury to use the failure to testify as an item of evidence or a makeweight to assist in satisfying the Crown’s burden of proof. Nor does it shift the burden of proof.
[166] The respondent acknowledges that the submission about the minimal cross-examination on the details of the incident of alleged sexual assault might have been better left unsaid. But no harm ensued. Trial counsel said nothing about it. And the trial judge’s instructions made it clear upon whom the burden of proof rested and where it did not lie.
The Governing Principles
[167] Three principles inform our determination of this claim of error.
[168] First, comments on the failure of counsel to cross-examine a witness on a particular issue – in this case, the details of the allegations.
[169] As a general rule, it is improper to ask an accused about the conduct of the defence. More specifically, it is improper to ask about why a witness was not cross-examined on a particular issue, or to invite the jury to consider this failure in evaluating the defence case or the adequacy of the case for the Crown: R. v. Brown, 2018 ONCA 1064 (“Brown (ONCA)”), at paras. 13, 17.
[170] Where an impropriety of this nature has occurred, it may create a risk that the jury will engage in speculation and, by extension, reverse the burden of proof: Brown (ONCA), at para. 13. Where either of these prospects emerges, a corrective instruction may be required: Brown (ONCA), at para. 18; R. v. Prokofiew, 2012 SCC 49, [2012] 2 S.C.R. 639, at para. 7.
[171] Finally, on its own, use of the terms “not denied”, “unchallenged” or “uncontradicted” in relation to the testimony of a particular witness does not amount to a comment on the failure of an accused to testify which is prohibited by s. 4(6) of the Canada Evidence Act, R.S.C. 1985, c. C-5: see R. v. Noble, [1997] 1 S.C.R. 874, at para. 97; Prokofiew, at para. 5; and R. v. Biladeau, 2008 ONCA 833, 93 O.R. (3d) 365, at paras. 21, 26-27. To run afoul of the prohibition, the comment must invite an inference of guilt from silence: Biladeau, at para. 23.
The Principles Applied
[172] I would not give effect to this ground of appeal.
[173] This ground of appeal arises out of submissions made by Crown counsel in his closing address to a jury at the end of a trial in which one witness testified. These submissions need not have been made to put the case for the Crown to the jury. In a sense, the submissions were a penetrating glimpse into the obvious: the jury was well aware that only one witness testified. They also knew that the accused did not testify and that he was under no obligation to do so. They saw and heard the manner in which defence counsel cross-examined the complainant.
[174] The reference to the manner in which the defence was conducted – in particular, how defence counsel cross-examined the complainant – was of no evidentiary value in the jury’s decision. Submissions about it risk attaching evidentiary significance to a trial event of no evidentiary value, thus risking a shift in the onus of proof.
[175] Characterization of the complainant’s evidence as “unchallenged” or “uncontradicted” does not amount to a comment prohibited by s. 4(6) of the Canada Evidence Act because these terms attach no evidentiary significance to the failure. But, at least in this case, the term “unchallenged” was at best misleading. The complainant’s account was challenged in cross-examination as a complete fabrication, a “show” put on for the jury.
[176] Despite these submissions in the closing address of the Crown, I am not persuaded that the appellant suffered any substantial wrong or that there was a miscarriage of justice as a result. Defence counsel did not object to the closing address of the Crown. He sought no corrective or remedial instruction. The charge to the jury made clear the onus and standard of proof. It also pointed out the presumption of innocence and explained that the accused did not have to testify, call evidence or prove anything. All of these instructions followed the closing address of the Crown. They were sufficient antidote to any residual prejudice that may have ensued from that address.
DISPOSITION
[177] For these reasons, I would dismiss the appeal.
Released: “DW” March 4, 2020
“David Watt J.A.”
“I agree. Grant Huscroft J.A.”
“I agree. M. Jamal J.A.”
