Publication Ban 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 or 486.6 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152,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, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order; (b) on application made by the victim, the prosecutor or any such witness, make the order; and (c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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; (b) on application of the victim or the prosecutor, make the order; and (c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(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.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall (a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order; (b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and (c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have (a) informed the witnesses and the victim who are the subject of the order of its existence; (b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances: (a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or (b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor, (a) the person knowingly failed to comply with the order; (b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and (c) a warning to the individual is not appropriate.

(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.

Court of Appeal for Ontario

DATE: 20240213 DOCKET: C70422 Rouleau, Hourigan and Monahan JJ.A.

BETWEEN His Majesty the King, Respondent and Shawn Thomas Clyde, Appellant

Counsel: Mark C. Halfyard and Colleen McKeown, for the appellant Brett Cohen, for the respondent

Heard: January 24, 2024

On appeal from the convictions entered by Justice Nancy M. Mossip of the Superior Court of Justice, sitting with a jury, on November 23, 2021.

Reasons for Decision

A. Introduction

[1] The appellant was convicted of one count of sexual assault and one count of sexual interference. The background to the convictions may be summarized as follows.

[2] The appellant was in a long-term relationship with the complainant’s mother between 2007 and 2014. The complainant suffered from rashes starting when she was between three to five years old and ending when she was eight or nine. The complainant testified that the rashes were on her buttocks and thighs, but not on her vagina.

[3] The appellant and the complainant’s mother both applied Penaten cream to the rashes, usually in the complainant’s bedroom before bedtime. Since the appellant was frequently with the children at night, he was often responsible for this task. According to the complainant, the cream was not applied to her vagina. However, both the appellant and the complainant’s mother testified that they applied cream to the complainant’s vagina.

[4] The complainant testified about two incidents that form the basis of the charges. In the first, she alleged that the appellant came into her room, took off her pants, massaged her breasts, and massaged her vagina for three to five minutes. In the second incident, she says that he came into her bedroom and began massaging her vagina. The complainant’s testimony was that the incidents of sexual touching were distinct from the cream applications. The incidents of the alleged touching occurred when the complainant was between seven to nine years old; at the time of trial, she was 17 years old.

[5] The appellant testified that he never touched the complainant for a sexual purpose. At trial, the defence did not attack the complainant’s credibility. Instead, the focus was on the reliability of her evidence. The position of the defence was that the complainant was misremembering the appellant’s involvement in her hygiene care.

[6] The appellant asserts three grounds of appeal, all related to the jury charge: (i) the trial judge failed to provide a corrective instruction after the Crown’s closing invited the jury to engage in several paths of impermissible reasoning; (ii) the trial judge misdirected the jury by confining their consideration of the first and second branches of R. v. W.(D.), [1991] 1 S.C.R. 742 to only the appellant’s evidence; and, (iii) the trial judge erred in instructing the jury that they could consider each witness’ interest in the outcome of the case – without regard to the danger this poses when the accused testifies.

[7] At the conclusion of oral argument, we granted the appeal for reasons to follow, set aside the convictions and ordered a new trial. These are our reasons.

[8] In summary, we grant the appeal based on the first ground of appeal. In the circumstances of this case, the trial judge had an obligation to provide a corrective instruction regarding the Crown’s closing, and the failure to provide that instruction necessitates the ordering of a new trial. Given this conclusion, we do not address the second and third grounds of appeal.

B. Analysis

(1) The Crown Closing and Jury Charge

[9] It is undisputed that the complainant viewed the appellant as a father-figure, and that they had a good relationship. The appellant played a parental role, and when the complainant was between the ages of six to ten, the appellant was frequently home with the complainant and her brother in the evenings, owing to their mother’s work schedule. In his closing address, the trial Crown sought to rely on this close relationship in support of the Crown’s case. The pertinent portions of the closing are as follows:

There’s no suggestion that she or her mom concocted evidence or lied or made things up or were any less than sincere. And I respectfully suggest that it’s not reasonable, not reasonably possible or possible at all that [K.] is mistaken or misremembers what had happened. Mr. Clyde, [K.] said, was a father figure to her. They were, Mr. Clyde said, “very close.” … It was his job to protect [K.]. Mr. Clyde agreed with me that she was, [K.] was “a very bright” girl. Why would she remember, misremember what happened in the first first place and why would she remember what Mr. Clyde of all people did? The defence has not suggested, much less explained how or why [K.] could have misinterpreted the application of cream for therapeutic purpose with sexual offences.… Why would a very bright young woman impute sexual dimensions to innocent care afforded by a father figure that she was apparently fond of and had good reason to be fond of?

And in closing, the main reason you should believe her entirely and reject what Mr. Clyde had to say is this, if she had the slightest doubt she was misremembering or had misperceived what had happened, if her protector or father figure could possibly be innocent, do you think she would have spoken to the police and then come to court to give evidence against the man who had been so kind and decent to her even after the breakup? Unless she was as certain as she said she was, why would she cling to a possibly false memory that could harm and harm terribly her father figure and protector? The only logical conclusion is that she could not possibly have misremembered or misperceived what had happened as my friend has suggested. She was telling the truth. Mr. Clyde was lying. And ladies and gentlemen of the jury, I would suggest that Mr. Clyde is guilty of the charges before the court and you should so find. Thank you for your attention.

[10] In the absence of the jury, the trial judge raised concerns with this part of the Crown closing, asking whether the Crown invited the jury “several times” to look for an answer from the appellant for why the complainant accused him. The court then took a brief recess to consider this issue. When the trial judge returned, she stated that she would not provide a corrective instruction. After commenting that she “can’t think of how to say something,” she indicated as follows:

There’s no evidence of animus and there’s only evidence of a good relationship. So, I don’t think there was anything improper in how it was put to the jury about that. He didn’t ask them to, he asked it as a, it could be a reason, it could be a factor they consider, which it can be anyways, a factor they could consider. Just like the defence is a factor they can consider is that it was her memory is old on that and she’s changed her memory over time and misperceiving the events.

[11] The trial judge provided counsel with the afternoon to further consider the issue and invited them to make further submissions if they wished to do so. Ultimately, the defence did not request a specific instruction on this issue.

[12] In the jury charge, the trial judge summarized the positions of the parties. In the section regarding the Crown’s position, she stated, in part, as follows:

Moreover, all the evidence suggests that she had a very good relationship with Mr. Clyde that continued long after his breakup from her mother and that he was very kind to her while they were living together and after the breakup. If she had the slightest doubt in the reliability of her memories, she would not have come forward to incriminate her “protector”.

(2) Motive, Reliability, and Credibility

[13] The appellant submits that the Crown’s closing was problematic in several respects as it invited the jury to engage in impermissible lines of reasoning. His primary complaints are: (i) the Crown relied on the appellant’s good relationship with the complainant and the absence of evidence regarding the complainant’s motive to fabricate to bolster the reliability of her testimony, and (ii) the Crown improperly relied on absence of evidence of motive to fabricate to enhance the complainant’s credibility. While we have concerns about the Crown’s closing regarding the latter point, we restrict our analysis to the former point.

[14] As the Crown fairly conceded in its factum, “there is no logical connection to be made between the absence of evidence of a motive for a witness to fabricate and the reliability of that witness.” Despite this concession, the Crown’s position is that any concerns about the submission regarding reliability would have been adequately addressed by the trial judge’s instruction that a credible witness is not necessarily a reliable witness. In particular, the Crown relies on the following instruction:

Testimony of a witness must be assessed firstly for credibility and then for reliability or accuracy. Credibility relates to the truthfulness of the witness. The reliability of a witness relates to the witness’ ability to observe, recall and recount the events to which the witness testified.

Obviously, a witness who is not credible cannot give reliable evidence. However, a credible witness, who is doing his or her best to tell the truth, may not be reliable. He or she could be mistaken.

[15] We are not persuaded by this submission. The Crown’s closing invited the jury to link an absence of motive with reliability. In fact, the Crown went so far as to tell the jury that “the only logical conclusion” that could be drawn from the appellant’s good relationship with the complainant was that “she could not possibly have misremembered or misperceived what had happened”. A corrective instruction was required to explain to the jury that this line of reasoning was impermissible. The general instruction relied on, which did not highlight the problem with the Crown’s closing, would not have sufficiently brought home to the jury that they could not equate an absence of motive with enhanced reliability. This is especially the case given that, as noted above, later in her charge, the trial judge repeated the Crown submission that if the complainant had “ the slightest doubt in the reliability of her memories, she would not have come forward to incriminate her ‘protector’.”

[16] As this court stated in R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 184, an appellate court must look at whether, “considered in the context of the trial as a whole, including evidence adduced and the positions advanced, the substance or manner of the Crown’s closing address has caused a substantial wrong or miscarriage of justice, including by prejudicing the accused’s right to a fair trial.” In this case, we are satisfied that the appellant’s right to a fair trial was compromised.

C. Disposition

[17] The appeal is allowed. The convictions are set aside, and a new trial is ordered.

Signatures

“Paul Rouleau J.A.”

“C.W. Hourigan J.A.”

“P.J. Monahan J.A.”