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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19

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: 20210608 DOCKET: C64938

Doherty, Trotter and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Roseanne Whalen Appellant

Counsel: Peter Copeland, for the appellant Tracy Kozlowski, for the respondent

Heard: May 31, 2021 by video conference

On appeal from the conviction on a charge of second degree murder on April 8, 2014, after a trial by a jury presided over by Justice Robert B. Reid of the Superior Court of Justice.

REASONS FOR DECISION

[1] Two-year-old Marissa, the appellant’s daughter, was repeatedly assaulted over many days, and perhaps weeks, by Rainbow Hill, the appellant’s girlfriend. Eventually, Rainbow killed Marissa. She subsequently pled guilty to second degree murder.

[2] Although there was no evidence the appellant physically assaulted Marissa, she was charged with second degree murder. The Crown alleged the appellant caused Marissa’s death by failing in her duty as a parent to protect Marissa from the physical abuse repeatedly perpetrated against her by Rainbow. The Crown alleged the appellant did so with the state of mind required for murder under s. 229(a)(ii) of the Criminal Code.

[3] The jury convicted. The trial judge imposed a sentence of life imprisonment without eligibility for parole for 15 years. The appellant appeals conviction only.

[4] After hearing oral argument, the court dismissed the appeal with reasons to follow. These are the reasons.

(1) The Crown’s Closing Argument

[5] Counsel for the appellant submitted, that because of the evidence heard by the jury, there was a real risk the jury could allow their empathy for the very young victim, and their disgust with the conduct of the appellant and Rainbow, to overwhelm their obligation to objectively and rationally assess the evidence in accordance with the legal principles provided by the trial judge. Counsel contends some of the arguments made by the Crown and the language used by the Crown in his closing jury address substantially increased the risk of a verdict based on an emotional response to the evidence. Counsel argues that the Crown’s closing address resulted in an unfair trial and a miscarriage of justice.

[6] At trial, the defence sought to depict the appellant as a person of limited intelligence who was manipulated, victimized and abused by Rainbow. In his closing address, Crown counsel made a vigorous and repeated attack on the viability of that defence.

[7] In the main, Crown counsel’s submissions remained within the boundaries of proper advocacy. For example, the Crown’s argument that the evidence showed the appellant to be a cunning and streetwise liar was in direct response to the portrayal of the appellant presented by the defence. The Crown’s characterization found support in the evidence. Whether the Crown’s argument would ultimately carry the day, was for the jury to decide.

[8] Crown counsel did use strong language at times in his closing argument. In many circumstances, that language accurately reflected the state of the evidence. Some of Crown counsel’s comments, however, were arguably overly dramatic, and potentially inflammatory. The Crown also misstated the evidence of one witness, although the evidence was far from central to the case.

[9] We are satisfied that any shortcomings in Crown counsel’s closing did not put the fairness of this trial at risk. There was no objection to Crown counsel’s closing and no request that the trial judge address in his instructions to the jury any of the remarks made by Crown counsel.

(2) The Instruction on the Mens Rea Required for Murder

[10] The Crown relied on s. 229(a)(ii). The mens rea of murder under that section has three components:

• the appellant must have intended to cause bodily harm to Marissa;
• the appellant must have known the bodily harm was likely to cause Marissa’s death; and
• the appellant must have been reckless as to whether death ensued.

[11] Counsel for the appellant argues that Crown counsel wrongly described the mens rea component of s. 229(a)(ii) in his closing argument, and that the trial judge’s instructions did not adequately correct the misapprehension created by Crown counsel’s closing.

[12] In his closing argument, Crown counsel referred to the necessary intent required under s. 229(a)(ii) as “recklessness”. He then went on to argue that the appellant had the necessary intent for several reasons. Counsel submitted, the appellant knew Rainbow presented a “clear and present danger to Marissa”. Crown counsel further argued that the appellant was present virtually every time Rainbow assaulted Marissa. Next, the Crown contended the appellant made no attempt to intervene or protect Marissa in the face of those repeated beatings. Finally, the Crown submitted the appellant’s conduct showed she knew Rainbow would kill Marissa. All of the Crown’s submissions were grounded in the evidence.

[13] Crown counsel’s reference to the necessary intent as “recklessness” was, as a matter law, incorrect. Crown counsel was not, however, purporting to instruct the jury on the law. He made it clear to the jury they would take their legal instructions from the trial judge. Crown counsel was making submissions as to the factual findings, which he urged the jury to make to justify a finding the appellant had the necessary mens rea for murder. Considered in that context, Crown counsel’s submissions were neither inappropriate nor misleading.

[14] The trial judge referred to the mens rea requirement in s. 229(a)(ii) several times in the course of his instructions. In his first reference, the trial judge wrongly told the jury that the requirement the appellant know the bodily harm was likely to cause death and the requirement of recklessness as to whether death ensued were alternative requirements. Both are required to establish the required mens rea under s. 229(a)(ii).

[15] The trial judge, however, correctly outlined the mens rea required in several subsequent passages in his instructions to the jury. The first correct reference to the required mens rea appears in the sentence immediately following the sentence containing the error. The trial judge correctly put the mens rea requirement to the jury three times in the page and one-half of transcript following his initial misstatement of the mens rea.

[16] In addition to the repeated correct oral instructions, the jury had the trial judge’s instructions in writing. The required mens rea was accurately set out in those instructions.

[17] There was no objection to the trial judge’s instructions on s. 229(a)(ii).

[18] In any event, the recklessness component of s. 229(a)(ii) was essentially surplusage on the facts of this case. If the jury was satisfied the appellant intended to cause Marissa bodily harm by failing to protect her from the repeated serious assaults inflicted by Rainbow, and if the jury was satisfied the appellant knew those assaults were likely to cause Marissa’s death and did not intervene, as she was obligated to do, the jury would inevitably have found the appellant to have been reckless as to whether Marissa died as a result of the assaults.

(3) The Trial Judge’s Review of the Evidence Relating to the Appellant’s Mens Rea

[19] Trial judges are required to relate the relevant evidence to the issues raised in the case. Counsel for the appellant submits the trial judge was obligated to refer to certain text messages when outlining the evidence relevant to the mens rea issue. Those text messages passed between the appellant and Rainbow in the few days immediately preceding Marissa’s death.

[20] The content of the text messages cut both ways. Parts were potentially inculpatory and parts were potentially exculpatory. While the trial judge did not refer to the specific passages put forward on appeal, he did refer to the text messages in a more general way in his instructions.

[21] Trial judges are not obligated to refer to all of the evidence that may have relevance to an issue at trial. Certainly, the trial judge could have referred to the passages from the text messages relied on by the appellant. He probably would have done so, had he been asked to do so at trial. His failure to do so does not constitute reversible error.

[22] In holding that the failure to refer to the text messages did not constitute reversible error, we place significance on the position of the defence at trial. Counsel fully and forcefully argued the case for the appellant at trial. There is no suggestion the appellant was not properly represented. Trial counsel did not ask the trial judge to specifically refer to the parts of the text messages which are now put forward as crucial to an understanding of the appellant’s position with respect to mens rea.

[23] When considering what evidence should be related to the various issues, trial judges are entitled to look to counsel for assistance in identifying the parts of the evidence which counsel regard as crucial to a proper understanding of their position on any issue. If, as the appellant now contends, one piece of evidence is crucial to an understanding of the defence case, one would expect trial counsel to say so. Trial counsel does not appear to have viewed the passages from the text messages as nearly as significant as does appellate counsel. We cannot say he was wrong in that assessment.

[24] The trial judge adequately dealt with the evidence relevant to mens rea and did so in an even-handed manner.

(4) The Instruction on the After-the-Fact Conduct

[25] The trial judge instructed the jury that the appellant’s conduct after Marissa’s death could constitute circumstantial evidence of the appellant’s guilt. He identified three parts of the evidence as potentially after-the-fact conduct:

• the appellant’s participation in the attempts to prevent the first responders from seeing Marissa when they attended at the apartment in response to the 9-1-1 call;
• the appellant’s participation in the burying and then re-burying of her daughter; and
• the appellant’s attempts to keep Marissa’s death secret.

[26] The trial judge instructed the jury, at some length, on the proper approach to be taken to evidence of after-the-fact conduct. He stressed, that while an inference of guilt could be drawn, the jury must be careful to consider all other possible inferences first. He further instructed the jury that even if the appellant was motivated by “feelings of guilt”, those feelings could be attributable to “something other than the offence with which she is now charged”.

[27] In the course of his instruction on the requisite mens rea, the trial judge instructed the jury that the evidence which he had earlier outlined as after-the-fact conduct was relevant to the issue of intent. The trial judge did not go into any more detail.

[28] The trial judge vetted his jury instructions with counsel before giving the jury those instructions. Counsel were content with the after-the-fact instruction. On appeal, counsel argues the trial judge was required to go into considerably more detail with the jury as to the possible uses and the prohibited uses of that evidence.

[29] The appellant was not prejudiced by the manner in which the trial judge approached the after-the-fact conduct evidence. That evidence, particularly as it related to the appellant’s involvement in the burial and re-burial of her daughter, was potentially powerful evidence of the appellant’s mens rea. A more detailed instruction as to how the jury might use that evidence to infer the requisite mens rea could only have hurt the defence position. That no doubt explains why the defence was satisfied with the proposed instructions and did not request any further instruction on the use of the evidence the trial judge had identified as evidence of after-the-fact conduct. The instructions were adequate and did not prejudice the appellant.

Conclusion

[30] The appeal is dismissed.

“Doherty J.A.”

“G.T. Trotter J.A.”

“J.A. Thorburn J.A.”