R. v. Muvunga, 2013 ONSC 3076

Court File and Parties

CITATION: R. v. Muvunga, 2013 ONSC 3076

COURT FILE NO.: CR-12-2662

DATE: 20130527

DELIVERED ORALLY: May 27, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

– and –

Binaishea Fred Muvunga

Defendant

Elizabeth Brown, for the Crown

Kirk W. Munroe, for the Defendant

HEARD: May 27, 2013

RULING ON CLosing address of the defence

pomerance j.:

Introduction

1Mr. Muvunga is charged with three counts of sexual assault. The central issue to be determined by the jury is whether the complainant consented to the sexual activity. The complainant testified that the accused forcibly attacked her on three occasions. The accused testified that the sexual activity took place within the context of an extra-marital affair and that the complainant not only consented to, but initiated the sexual activity.

The Defence's Request

2Counsel for the accused, Mr. Munro, wishes to use a visual prop during his closing address to the jury. He wishes to present the jury with “Calumny of Apelles”, a painting by Sandro Boticelli believed to date back to 1494. As I understand his argument, Mr. Munro wishes to present the painting to the jury as an allegory. He wishes to make the point that the theme of false accusation is not the exclusive invention of criminal defence lawyers. Rather, this “dark side of human nature” has been depicted in historical works of art and literature. To this end, he wishes to present the jury with a copy of the painting “Calumny of Apelles”, and tell them the underlying story.

The Painting "Calumny of Apelles"

3It is said that Boticelli based his work on a painting done by the classical Greek artist Apelles. Legend has it that Apelles produced the painting because he was unjustly slandered by a jealous artistic rival, Antiphilos, who accused him in front of the gullible king of Egypt, Ptolemy, of being an accomplice in a conspiracy. After Apelles was proven to be innocent, he dealt with his rage and desire for revenge by painting the picture which served as inspiration for Boticelli’s work.

4The images in the Boticelli painting have been described as follows:

On the right of it sits a man with very large ears, almost like those of Midas, extending his hand to Slander while she is still at some distance from him. Near him, on one side, stand two women—Ignorance and Suspicion. On the other side, Slander is coming up, a woman beautiful beyond measure, but full of malignant passion and excitement, evincing as she does fury and wrath by carrying in her left hand a blazing torch and with the other dragging by the hair a young man who stretches out his hands to heaven and calls the gods to witness his innocence. She is conducted by a pale ugly man who has piercing eye and looks as if he had wasted away in long illness; he represents envy. There are two women in attendance to Slander, one is Fraud and the other Conspiracy. They are followed by a woman dressed in deep mourning, with black clothes all in tatters—she is Repentance. At all events, she is turning back with tears in her eyes and casting a stealthy glance, full of shame, at Truth, who is slowly approaching.

Analysis

5While this painting is of great interest to art historians and other scholars, I find that it has no place in a modern Canadian criminal trial.

6I accept that the right of the defence to address the jury is fundamental to a fair trial (see: R. v. Jolivet, 2000 SCC 29 at para. 36). It is not, however, without limits. In R. v. Gesecke, 1993 CanLII 8600 (ON CA), [1993] O.J. No. 1398 (C.A.), the Court of Appeal for Ontario directed a new trial on the basis of a defence closing that “crossed the line from enthusiastic advocacy into inflammatory rhetoric” (see p.4). In that case, the court ruled that the use of hyperbole and insinuation in the defence closing adversely affected the fairness of trial. While, in Gesecke, the issue was the fair trial a co-accused, trials must also be fair when viewed from the societal perspective. Defence evidence may be excluded where it has the potential to distort or undermine the integrity of the fact finding process. A defence argument in a closing address may be ruled impermissible on the same basis.

7In his argument, Mr. Munro stressed that he does not wish to use the painting to promote any offensive or stereotypical notions of female complainants. I accept this assertion. I also accept that Mr. Munro will try to minimize prejudicial impact of the painting by telling the jury that it should disregard the gender of the figures portrayed in the artwork. Mr. Munro wishes to use the painting as a striking and memorable tool of persuasion.

8The difficulty is that the very features that make the painting striking and memorable are the features that make it inflammatory. The painting depicts women as symbolic representations of slander, ignorance, suspicion, fraud, conspiracy and repentance. These women are turning their back on truth, who is also depicted as a woman, but appears in naked form. The accused individual is seen as an innocent young man being dragged by the hair toward the King. Ignorance and suspicion – two women – are whispering into the King’s ears, which are depicted as the ears of a donkey, in an effort to corrupt the decision maker.

9Against these graphic images, asking the jury to disregard depictions of gender is like asking Mrs. Lincoln whether, aside from everything else, she enjoyed the play. It is impossible to divorce gender from the images depicted by Boticelli and it is impossible to divorce the images from the artwork. If the images are truly beside the point, then they should not be presented. To have them placed before the jury is to risk undermining the integrity of the fact finding process.

10The concern is that the painting will resurrect offensive myths and stereotypes that have, in the past, tarnished trials of sexual offences. Since the 1980s, Parliament and the courts have taken active steps to exorcise these pernicious myths from the criminal law. The painting’s depiction of women as false accusers, and corrupters of the decision maker, harkens back to a time when corroboration of a sexual assault complainant was a legal requirement, the rules of recent complaint were in force, and evidence of the complainant’s sexual history was freely admitted. Fortunately, the law has progressed well beyond this point, ridding itself of rules based on an inherent distrust of sexual assault complainants. The modern fact finder is to base its findings on the evidence adduced at trial, rather than offensive stereotypes.

11The inflammatory images in the Boticelli painting do little to advance the objective, impartial and gender neutral approach to fact finding that our law now requires. Myths cloaked in artistic imagery are still myths, and perhaps all the more dangerous for their aesthetic legitimacy.

12In short, I find that the painting conveys messages that are inappropriate in the context of a criminal jury trial. To suggest that life imitates art is, at least in this context, a dangerous proposition. The potential for prejudice and distortion of the fact finding process substantially outweighs the potential for legitimate persuasive impact.

Conclusion

13In the result, counsel for the accused may not present the Boticelli painting during his closing address to the jury.

Renee M. Pomerance