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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 2024-08-30 Docket: COA-22-CR-0235

Judges: Huscroft, George and Copeland JJ.A.

Between:

His Majesty the King Respondent

and

Mahad Geele Appellant

Counsel: Mark Halfyard and Julia Kirby, for the appellant Dana Achtemichuk, for the respondent

Heard: August 27, 2024

On appeal from the conviction entered on April 8, 2022 by Justice Thomas of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] At the conclusion of the appellant’s oral argument we advised counsel that the appeal was dismissed, with reasons to follow. These are those reasons.

[2] The appellant was charged with sexual assault. The complainant testified that the appellant had sex with her, without her consent. The appellant testified and denied that they had sex at all. A jury found the appellant guilty.

[3] Three witnesses testified: the complainant, the complainant’s friend, and the appellant. On the same day that the sexual assault occurred, the complainant and her boyfriend attended a hospital where a sexual assault examination kit (“SAEK”) was administered. The results were disclosed to the defence, but were not presented at trial.

[4] The Crown did not tender the SAEK results nor call evidence to explain that the kit had been administered. The Crown did not mention the SAEK in either its opening or closing address. The SAEK came up when defence counsel cross-examined the complainant about her hospital visit and her police statement. The complainant referred to having the SAEK completed “immediately after” the alleged assault. The appellant did not lead the SAEK results as part of his case.

[5] During the pre-charge conference Crown counsel sought permission to vet defence counsel’s closing submissions about the SAEK to ensure that he would not ask the jury to draw improper inferences. In response, defence counsel confirmed that he would only comment on the fact that a SAEK was completed and that the results were not presented. The trial judge agreed that defence counsel could make that submission.

[6] Then, during his closing address, defence counsel said this:

Now, any evidence can do one of three things. It can confirm the allegation. It can contradict the allegation, or it can do neither. Well, we don’t have any evidence. The police didn’t tell us anything. We have no hospital information. We have no nurse testifying. We have no forensics.

Well, we know something, one thing for sure. It didn’t confirm, that evidence didn’t confirm the allegation of a sexual assault and intercourse . Didn’t confirm that. So, what are we left with? We are left with either that it contradicted it or did neither …

So, which is it? Which is it? And you have to consider this, the only way you can take that is that it would contradict because you have to take that evidence in the best light in favour of the defence, not in favour of the prosecution. You can’t forgive that. [Emphasis added].

[7] Defence counsel also suggested to the jury that there may be an Attorney General policy about hospital records which prevented the Crown from tendering the SAEK results as evidence, which he argued was “wrong” because there should be “full disclosure”.

[8] This went well beyond what the trial judge gave defence counsel permission to say, which prompted the trial judge to include this instruction in his final charge:

Before I move to the law as it relates to the issues, I want to tell you this. [Defence counsel] mentioned in his closing arguments to you the absence of forensic evidence and that the absence of forensic evidence should lead you to believe that no intercourse took place. It is true that you do not have the results of forensic testing in this case. Do not speculate on why. Consider only what you have. Do not speculate on what you do not .

[Defence counsel] spoke about the potential of a policy the Attorney General or perhaps the Crown regarding the results of these tests and perhaps why you do not have them in evidence in this trial. There is no evidence of a policy. There is no evidence before you of any practice by the Attorney General or otherwise.

[Defence counsel] has suggested to you that you have not received forensic evidence because it must contradict [the complainant’s] testimony. You cannot assume that that is true. Again, concentrate on what you have. Do not speculate on what you do not have . [Emphasis added.]

[9] Defence counsel raised a post-charge objection to this instruction on the basis that it prevented the jury from considering the absence of the SAEK results. The trial judge had the jury brought back into court and told them that “[s]pecifically on the issue of the results of a hospital test of [the complainant] you can consider that you don’t have that evidence. What you can’t do is you can’t speculate on what it might be. ” [Emphasis added].

[10] The appellant argues that the trial judge’s instruction and subsequent correction on the absence of DNA evidence were both misleading and amounted to errors. He submits that these instructions undercut the jury’s ability to consider the effect of the absence of this evidence, in deciding whether it had a reasonable doubt as to guilt.

[11] We reject that submission.

[12] A reasonable doubt can arise from the absence of evidence: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 39; R. v. Hassanzada, 2016 ONCA 284, 130 O.R. (3d) 81, at paras. 68-70. It cannot, however, “arise from speculation about what uncalled evidence might have been, or why the evidence was not called”: R. v. MacKenzie, 2020 ONCA 646, 395 C.C.C. (3d) 421, at para. 57. Here, while the trial judge’s initial instruction was largely correct – in that the jury could not speculate about why certain evidence was not called, or assume that it would have contradicted the complainant’s evidence – we accept that the jury could have understood his direction “not [to] speculate on what [evidence they] do not have” to mean a doubt could not arise from the absence of evidence. However, the post-charge corrective instruction that the jury could “consider that [they] don’t have that evidence”, made it clear that it was open to them to find that in the absence of the SAEK results the Crown had failed to establish guilt beyond a reasonable doubt. It is important to note that, earlier in his instructions, the trial judge told the jury that “[i]f at the end, based on all of the evidence or lack of evidence , you are not sure that [the appellant] committed the offence charged, you should find him not guilty of it.” [Emphasis added.]

[13] On a functional reading, the jury charge as a whole made it clear what the standard of proof is, and that the absence of evidence could give rise to a reasonable doubt. There is no basis for appellate intervention.

[14] The appeal is dismissed.

“Grant Huscroft J.A.”

“J. George J.A.”

“J. Copeland J.A.”