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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20220202

DOCKET: C67149

MacPherson, Roberts and Miller JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

B.G. Appellant

James Lockyer and Alexander Ostroff, for the appellant Jennifer Epstein and Jacob Millns, for the respondent

Heard: September 28, 2021 by video conference

On appeal from the convictions entered on February 20, 2019 and the sentence imposed on July 3, 2019 by Justice Leonard Ricchetti of the Superior Court of Justice, sitting with a jury.

B.W. Miller J.A.:

A. Overview

[1] Following a trial by jury, the appellant was convicted of sexual interference, sexual assault and other historical offences committed against his daughter.

[2] The main issue on appeal is whether the Crown counsel at trial invited the jury to rely on impermissible racial or cultural stereotyping through her cross-examination of defence witnesses and through statements in her closing address. The question is whether the absence of a specific instruction to the jury cautioning against impermissible reasoning relying on racial or cultural stereotyping of the defence witnesses resulted in an unfair trial. For the reasons that follow, I conclude that it did and would allow the appeal, set aside the conviction, and order a new trial.

[3] With respect to the appellant’s second submission, however, I do not agree that the trial judge made any error in his W.(D.) instruction to the jury with respect to the burden of proof.

B. Background

[4] In January 2016, the complainant N.G., who was then aged 31, reported to the police that her father, the appellant B.G., had sexually and physically abused her from the time she was 6 or 7 years old until she was 14. The appellant was charged with sexual assault, sexual interference, invitation to sexual touching, and uttering threats. He was convicted as charged, and the trial judge imposed a sentence of 8 years’ imprisonment.

[5] The complainant testified to almost daily sexual abuse by the appellant, and to the appellant regularly beating her and her sister, brother, and mother, as well as the children of the family who lived with them (the B. family). She also testified that over the years she had told members of her family (the G. family) and others about the sexual abuse, and that one of the persons she told – one of the two daughters of the B. family – told the complainant that she too had been sexually assaulted by the appellant.

[6] The appellant testified and denied the allegations. The defence called seven witnesses, including the complainant’s mother, aunt, sister, brother, and the two daughters of the B. family. The complainant testified she had told each of these witnesses about the abuse prior to her eventual disclosure to the police. Each of the witnesses denied this, and each denied having observed any sexual or physical abuse by the appellant or any signs of it. However, it was uncontested at trial that the complainant told a friend in Grade 7 that she was being sexually abused and she believed it was by her father.

[7] The appellant and his wife were immigrants from India. Although the complainant was born in Canada, she spent most of the first three years of her life in India, where she was raised by her grandparents and her aunt and uncle before she was sent back to Canada to live with her parents. It was profoundly shocking to her to be returned to Canada and to discover that her aunt and uncle in India were not actually her biological parents. As she grew up, the complainant frequently clashed with her parents over what she – as well as her parents and siblings – characterized at trial as a traditional Indian upbringing. The complainant’s parents imposed greater restrictions on the complainant than the parents of the complainant’s non-Indian peers at school. The complainant was denied privileges that were common among her peers, such as dating and going with friends to the mall or for sleepovers. There were restrictions on how she could dress and cut her hair and on what she watched on television. There was tension with her parents over her desire to integrate into non-Indian culture.

[8] According to the complainant, the appellant sexually abused her on a regular basis from the time she was around 6 years old and threatened he would kill her if she told. The complainant testified that it was only after sex education class when she was 13 that she realized the nature of what the appellant was doing. It was at that time she told her friend that she was being sexually abused. The claimant testified that the sexual abuse only stopped when she was 14, after she told her mother. She testified there was a family meeting at that time where her mother confronted her father.

[9] When the complainant was 15, she had a boyfriend several years older whom she kept secret from her parents. Her boyfriend would occasionally sneak into the house to see her. The two were eventually discovered. This was traumatic for the complainant’s parents and the complainant was punished and forbidden from seeing her boyfriend again. The evidence diverged as to how the complainant was punished. The parents testified that they yelled in anger at her and she was subjected to a strict curfew, denied television viewing privileges, and given additional household chores. The complainant’s evidence was that she was severely beaten by her father.

[10] A few months later, the complainant ran away from home. The complainant testified that the reason was to escape her father’s physical and sexual abuse. During a group field trip to the Royal Ontario Museum, the complainant separated herself from the group, phoned her boyfriend, and told him she was running away and for him not to look for her. He persuaded her to wait for him instead, and he took his parents’ van, picked up the complainant, and the two ran away to Sarnia. They came to the attention of the police two weeks later after each attempted suicide and were hospitalized for several weeks. The police contacted the parents, but the complainant refused to speak with them. Communicating through the police, the complainants’ parents told the complainant she should marry her boyfriend. The complainant’s evidence was that she had no intention of doing what her parents said. However, her boyfriend seized on the idea, asked her to marry him, and after he persisted, she eventually agreed. After a civil ceremony in Sarnia, they returned to Brampton for a traditional Sikh ceremony. The complainant had a daughter sometime thereafter. Within three years, the complainant was experiencing physical abuse from her husband and left the marriage with her young daughter. Since that time, she has suffered financial difficulty, instability, and poor health. She first brought her allegations against the appellant to the police in 2016.

C. Analysis

[11] An ethnic or national culture consists in part of shared beliefs and norms, social institutions, and patterns of behaviour. It can include duties and obligations, and other beliefs about what ought to be done and not done, and what constitutes a good life. The norms of any particular culture is a question of fact to be resolved according to evidence led at trial, including expert evidence if not a matter of everyday experience of the average person: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 241.

[12] Where relevant to a matter in issue, it is permissible for the trier of fact to consider whether the beliefs and practices of a particular culture provide some evidence about what a particular person believes, or explain that person’s apparent behaviour: R. v. Boswell, 2011 ONCA 283, 277 CCC (3d) 156, at paras. 25-26; R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paras. 124, 128-30, 133, per Cory J. It is, however, impermissible to invite the trier of fact to adopt a stereotype about cultural practices unsupported by evidence and use it to draw conclusions about a witness’s beliefs or actions.

[13] As explained more fully below, at trial the norms of Indian culture as practiced by the appellant’s family and other witnesses were first put in issue by the defence and then by the Crown, although for different purposes. The defence in its cross-examination of the complainant first raised the concept of honour for the purpose of explaining the defence theory: that the complainant married out of a sense of obligation – an obligation rooted in Indian culture – and later blamed the appellant for it. For its part, the Crown advanced three propositions related to the defence witnesses’ culture: (1) the witnesses’ culture – and specifically the concept of honour within their culture – provided them with a motive to lie; (2) one aspect of the witnesses’ culture is that the women of a household are dominated by the men and will do what they are told, and (3) the witnesses’ culture permits lying under oath. The first of these propositions was stated explicitly. The latter two were premises underlying the questions put to the witnesses on cross-examination. None were established by expert evidence, nor were they admitted by the defence witnesses. Only the first of the three – the concept of honour – had any foundation in evidence, and that was only in the context of whether the complainant felt pressure from her parents to marry after running away.

Indian culture in the defence theory at trial

[14] The defence theory at trial was that the complainant ran away from home as the culmination of an on-going rebellion against the strictness of her parents, particularly her father. It was uncontroversial at trial that the complainant’s upbringing was common to “traditional” Indian (and specifically Sikh) households. The defence theory was that the appellant – as a husband and father in a traditional Indian household – parented according to the norms of that culture and the complainant resented it. Furthermore, the defence argued, the complainant attributed all of her difficulties in life – an early and unhappy marriage, early parenthood, drug addiction, poor health, financial problems – to the strictness of her parents, and particularly her father, who provoked her adolescent rebellion and pressured her to get married as a culturally appropriate resolution of the scandal of having run away with her boyfriend. The defence argued that the complainant fabricated the allegations against her father as revenge for the degree of control he had exercised over her life as she was growing up – including his role in pressing her to get married – and the suffering she believed resulted from it.

[15] Accordingly, the fact that the appellant’s parenting style was traditionally Indian was key context for the defence theory, as was the allegation that the complainant submitted to marriage at the instigation of the appellant.

Indian culture in case for the prosecution

[16] In its closing address, the Crown appealed to the witnesses’ participation in Indian culture to make the case that the defence witnesses had a powerful motive to lie:

It doesn’t take a rocket scientist to figure out that anyone would have a motive to lie to protect a family member, regardless of culture. People lie for family members all the time …

Here, the cultural element is but one added dimension. There’s nothing wrong with it , but the reality is that family reputations mean a great deal in the traditional East Indian culture, as a great deal depends on family reputation. The actions of one family member can tarnish the name of the entire family … This is a traditional East Indian family. It is not easy for any family to have the patriarch labelled as a sexual abuser of his own daughter when she was a child, but in a community where the wrongdoing of one member is so significant to the other members of the family if the word gets out, imagine the shame the family is trying to protect themselves from now . (Emphasis added).

[17] Additionally, a frequent premise of the Crown’s questions on cross-examination was that the female defence witnesses were acting under the dictation of men who told them to lie, and that the norms of their culture permitted them to lie. The Crown thus pivoted from the common ground that the family – in common with other “traditional” Indian families – was strict or non-permissive in its parenting, to the contested propositions that this family was also patriarchal, in the highly pejorative sense that the men of the household ruled the women and children, and that it was acceptable according to the cultural norms of the household to lie, particularly in order to protect family honour.

[18] The Crown argued on appeal that this was not a matter of inviting the jury to apply cultural stereotypes, but a matter of drawing individualized judgments about the credibility of the witnesses based on the evidence of how they had behaved.

[19] I do not agree. The cross-examination transcripts show the trial Crown putting questions to the witnesses based on highly pejorative assumptions about the witnesses’ culture that were not established in the evidence. The trial Crown repeatedly used phrases such as “culturally” and “in your culture” in contexts that suggested the witnesses’ answers were not believable because they were contrary to the stereotypical cultural norms – such as preserving family honour through secrecy and dishonesty – that were presumed to govern the witnesses’ behaviour. The most direct example is in the cross-examination of the appellant’s sister:

Q: And you’re saying that if [N.G.] had told you that, instead of trying to deal with it inside the family, you would have called the police.

A: Yes.

Q: You’ll agree with me that culturally that would have been a very difficult position to put yourself in .

A: No, wrong is wrong.

Q: And I’m going to suggest to you that once your husband and your brother found out that you were gonna go speak to the police, they told you that you couldn’t.

A: No, it did not happen that way.

Q: … and furthermore, now they’ve told you that you have to come here and lie and say that [N.G.] never told you this.

A: No one ever told me like that.

Q: I’m gonna suggest to you ma’am, that the male members of your family, both your brothers, your husband, are never gonna let you tell what you know.

A: No, that’s not the truth.

[20] A similar tack was taken with the cross-examination of one of the daughters of the B. family, N.B., after she denied having ever told the complainant that she too had been sexually abused by the appellant. The Crown pressed that she was lying for cultural reasons:

Q: [N.B.], again, I’m sorry to do this to you, but I’m going to suggest that although you were sexually touched by [the appellant] for personal and cultural reasons you never wanted that to be disclosed outside of your sister and your mother, and for personal and cultural reasons and because of some pressure from other people in the family and the community you’ve been told to come here today and say that [N.G.] never told you that she was being sexually abused.

A: No, if it was true I would have said yes. If nothing happened, I cannot say that something happened that never happened. (Emphasis added).

[21] Additionally, the Crown’s argument that the evidence established an individualized basis for concluding the witnesses were dominated by men and therefore willing to lie to hide physical and sexual abuse – primarily the evidence of the circumstances of the witnesses’ marriages – itself relied on negative cultural stereotyping that the witnesses rejected and had no evidential support.

[22] The Crown cross-examined the B. family sisters extensively about the circumstances of their marriages, which were arranged in India by their families according to Indian custom. The B. family had travelled to India for the wedding of their daughter A.B. in 1999, which had been arranged in advance. The parents had expected to return to India the next year to arrange a marriage for A.B.’s sister N.B., but while they were there, an uncle told the family of an educated young man who might be a match for N.B. She ended up marrying as well, two weeks after her sister.

[23] The Crown argued that the circumstances of N.B.’s marriage were consistent with concern that N.B. needed to marry quickly, before the allegations about the appellant’s behaviour became widely known and the B. family’s reputation became damaged as a result of their close association with the G. family.

[24] Additionally, an unstated premise in several of the questions put to N.B. was that the marriage – as an arranged marriage – was something outside of her control and showed her to be under the domination of male relatives.

Q. Okay. So the arranged marriage, did you want to get married in India back then?

A. It was fine with me.

Q. Okay, and your family or your – who picks the guy?

A. Well usually the parents do.

Q. Yes.

A. But we do have a choice of saying yes or no. It’s not like if they pick the guy we have to stick to them. So we have a right to say no if we want to.

Q. All right. So your parents picked the guy?

A. We actually went to see him all together. It’s not like they met him before.

Q. And then your dad just said we’re here, might as well get you done as well.

A. Yeah, you know how Indian parents, they talk to their relatives saying I have a girl, if you know a guy just let me know. So my uncle told him that there’s a guy here. He has done his MB [ph] and stuff so if we want to meet him, so we met him.

Q. Okay. So he was educated so...

A. Yeah.

Q. ...that was a good thing.

A. Yeah.

[25] The Crown then asked:

Q. And how long after you first met him did you actually marry him?

A. Maybe after a week or 10 days, I’m not sure.

Q. And you weren’t upset about that.

A. No, why would I be upset?

[26] It was perfectly legitimate for the Crown to suggest to N.B. that the circumstances of her marriage – a last-minute affair when compared to the lead-time in advance of her sister’s – supported the inference that the family was aware of allegations that the appellant had engaged in sexual abuse as the complainant alleged, and that N.B.’s marriage should be arranged before the word could get out. The premises of that question did not rely on any negative stereotyping.

[27] However, it was not fair for the Crown to suggest through its questioning that the fact the B. sisters married according to the tradition of arranged marriage is evidence they lacked agency. Both N.B. and A.B. objected to this characterization of their marriages and of themselves and there was no evidential support for it.

[28] More broadly, the effect of the Crown’s repeated use of the preface ‘in your culture’ when questioning the defence witnesses had the effect of exoticizing them in the eyes of the jury, of insinuating that they were not only different, but operated according to a different ethical system in which the obligation to tell the truth was subordinate to protecting the family from shame. The witnesses, particularly the B. family sisters – one a pharmacy technician and the other an appeals officer with the Canada Revenue Agency – rejected this stereotype as an accurate depiction of themselves. The witnesses not only denied the direct accusation that they lied to protect the reputation of the appellant, they denied the premises of the questions: that the women were not independent, that arranged marriages are manifestations of patriarchy, and that the concept of family honour would justify lying to protect the appellant.

[29] The Crown was entitled to pursue the theory that the defence witnesses were lying to protect the appellant. Similarly, the Crown was entitled to put to the witnesses that they lacked agency, believed it was permissible to lie to protect family honour, and were in fact lying at the direction of male relatives. But where questioning is so heavily freighted with negative cultural stereotyping – stereotyping that may subconsciously resonate with the jurors even though the questions turned up empty – the questioning itself creates a risk that without some instruction from the trial judge, a jury will seize on the stereotype even though it is not established in evidence. In this case, where the Crown effectively invited the jury to conclude the witnesses were lying because their religion and culture either demanded it or excused it, there was a risk that the jury would leap from the fact that the witnesses were Indian women living in households governed by traditional Indian norms to the conclusion they were therefore less likely to be truthful witnesses. In particular, the jury ought to have been expressly instructed not to reason from the facts that the witnesses were members of “traditional” Indian households that value family honour, and that several of the witnesses had been married in accordance with Indian custom, to the stereotype that Indian women are culturally conditioned to submit to the domination of men, tolerate physical and sexual abuse by the family patriarch, and lie about it under oath to protect family honour.

The failure to object

[30] The defence did not raise any objection to the Crown’s questions on cross-examination and did not ask that the jury be given any cautionary instruction. The Crown argues that this was tactical. The defence not only did not object to the questioning but introduced the idea – through the cross-examination of the complainant – that a refusal to submit to an arranged marriage or marrying outside the community was frowned upon. This was in support of the defence theory that the complainant fabricated her allegations as retribution for being forced into a marriage by the appellant.

[31] I agree that the defence’s failure to ask for an instruction is some evidence that the defence may not have viewed an instruction as necessary. But I do not agree that it was a tactical decision. The defence position was that pressure was put on the complainant to marry to save family honour. It does not follow that the defence was thereby committed to the proposition that arranged marriages are a manifestation of the subjugation of women, and any woman who contracts an arranged marriage – such as the B. family sisters or the complainant’s mother or aunt – are likely dominated by men and lack the necessary agency to tell the truth in court. There was no equivalency between the argument advanced by the defence and the proposition insinuated by the Crown.

[32] Furthermore, the defence did initially object that the Crown’s line of questioning about the B. family’s marriages was irrelevant. The trial judge disagreed, and later explained:

…it’s very clear to me that the Crown is going to be alleging … that the families are tight, that the males dominate, the males control it, that’s part of the Sikh culture, part of the culture from India and that’s why there’s a little more latitude being given as to what happens in India, how they discipline the children and so forth.

[33] The trial judge recognized the stereotype that was put into play, even if he did not perceive why it would be problematic, and it is of less significance that defence counsel did not renew the objection when reviewing the closing charge to the jury, given that the trial judge had been unpersuaded by the objection earlier in the proceeding.

[34] In any event, a failure to object is not determinative and the responsibility for the jury charge ultimately falls on the trial judge: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 47. This court has repeatedly held that trial judges are required to respond through specific corrective instructions where Crown improprieties inject a particular risk that the jury will engage in an impermissible pattern of reasoning: R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at para. 52. In this case, similar to R. v. J.S., 2018 ONCA 39, 140 O.R. (3d) 539, there was a real danger that the jury would accept the proffered stereotypes in place of properly assessing the evidence, and that this would harm the credibility of the defence witnesses in the jurors’ minds, and bolster the credibility of the complainant. The result was an unfair trial

[35] Accordingly, I conclude that the trial was unfair, and would allow an appeal on this basis and order a new trial.

The W.(D.) Instruction

[36] Although it is not necessary for the disposition of this appeal, I do not agree that the trial judge made any error with respect to the W.(D.) instruction to the jury. When the instruction is read as a whole, it is clear that the trial judge instructed the jury to consider the whole of the evidence, including the evidence of the defence witnesses and Crown witnesses, in determining whether any of the evidence raised a reasonable doubt as to the appellant’s guilt. Nothing further was required.

D. Should the Publication Ban be lifted?

[37] Regardless of the outcome of the appeal or the appellant’s position, the complainant, through the respondent, has asked that this court set aside the order made by the preliminary hearing judge, Justice P. Band, on March 27, 2017, under s. 486.4 of the Criminal Code, R.S.C., 1985, c. C-46, that any information that could identify the complainant not be published. The complainant wishes for the ban to be lifted so she can openly speak about this part of her life. The Crown supports the complainant’s request. The appellant takes no position on the request.

[38] The difficulty with this request is that the publication ban ordered by the preliminary inquiry judge may overlap with the trial judge’s publication ban concerning “anything dealing with” the voir dire on evidentiary issues. There was no request to lift the latter ban. As a result, I would decline to make this order. Given my proposed disposition of the appeal, there would be a new trial, and the trial judge would be better placed to determine this issue.

Disposition

[39] I would allow the appeal, set aside the conviction, and order a new trial.

Released: February 2, 2022 “J.C.M.”

“B.W. Miller J.A.”

“I agree. J.C. MacPherson J.A.”

“I agree. L.B. Roberts J.A.”