ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-10657

DATE: 2014/03/07

PUBLICATION BAN IN EFFECT UNDER S. 648 OF THE CRIMINAL CODE

BETWEEN:

HER MAJESTY THE QUEEN
Applicant

– and –

KHAMEA LOUANGRATH
Respondent

Matthew Geigen-Miller, for the Applicant

David Anber, for the Respondent

HEARD: February 28, 2014

RULING #4: USE OF VISUAL AIDS DURING CLOSING ADDRESS

Aitken J.

Nature of the Issue

[1] On February 28, 2014, during the course of a second pre-charge conference, I inquired of Defence counsel as to whether he was planning to use any visual aids during the course of his closing address. I made this inquiry because, during the course of his cross-examination of Tim McCarthy, a Crown witness, Defence counsel had put up on the large screen facing the jury cartoon characters and stick-figure drawings, without my knowledge or consent. I could not see the large jury screen, and I was positioned with my back to the small screen on my desk. I used a computer and portable computer table placed between myself and the witness box to enable me to face the witness and the jury; I was not facing the body of the court room. Consequently, if it had not been for Crown counsel rising, after a number of slides had been displayed, to state on the record that these visual aids were being used, I would not have realized that this was going on.

[2] When I became aware of what was happening, I instructed Defence counsel to turn the monitor off, and I asked the jury to retire. Despite Defence counsel’s vehement argument that he had done this numerous times in the past, and that it would infringe on his client’s right to make full answer and defence if he could not use these visual aids while Mr. McCarthy was testifying, I ruled that he could not use such aids as it was akin to his giving evidence. To make things clear, none of the slides had been put to the witness in advance of their being displayed on the screen. The slides were simply displayed as a running commentary on the side. When the jury returned, I instructed them to ignore and put out of their minds the slides that had been displayed on the screen. The trial continued.

[3] As a result of my concerns regarding what had happened during Mr. McCarthy’s cross-examination, I questioned Defence counsel about his intentions regarding the use of visual aids during his upcoming closing address. He advised me that he intended to make use of visual aids, similar to what he had displayed during Mr. McCarthy’s cross-examination, to help explain his closing submissions to the jury. This was not something for which he had previously sought my approval. I ruled that Defence counsel would not be permitted to use such visual aids. Subsequently, Defence counsel provided examples of the slides with drawings that he wished to use during his closing address. After seeing those slides, my concerns were heightened. Those slides were made Exhibit I.

[4] Defence counsel then advised that he was intending to use a diagram that he had prepared showing where “proof beyond a reasonable doubt” lay on a continuum between “absolute certainty of guilt” and “absolute certainty”, presumably of innocence. Once I was shown a copy of this graph, I ruled that it, as well, could not be used as a visual aid to support the closing address of Defence counsel. Subsequently, Defence counsel provided a progression of slides that, had he been given the opportunity, he would have used during his closing address. Those slides are also included in Exhibit I.

[5] I undertook to provide brief written reasons for my rulings.

Cartoon and Stick Figure Illustrations

[6] In R. v. Heil, 2005 ABCA 397, the Alberta Court of Appeal confirmed that the trial judge has a discretion whether or not to permit the use of visual aids during counsel’s address to the jury.

[7] In this case, I did allow the use of power points by both Crown and Defence counsel so that they could present visually the key points in their addresses. I did not allow Defence counsel to go further and use pictures of cartoon characters and stick figures, and moving lines between those figures, to illustrate his understanding of the evidence. In my view, this amounted to Defence counsel trying to give his own evidence. These were not illustrations or drawings that any witness had prepared or adopted during the course of his evidence. Yet, the plan was to present them to the jury as if they were the same thing as the witness’s evidence. This would have been misleading to the jury and a misrepresentation of the evidence.

[8] In R. v. Muvunga, 2013 ONSC 3076, Pomerance J., in a must-read ruling for anyone involved in the criminal justice system, had to make a similar ruling in regard to a piece of art which Defence counsel wished to use during his closing address to the jury, by way of allegory. Pomerance J. did not allow the use of the artwork and, in doing so, observed at para. 6: “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.” She observed that the features that would make the proposed piece of art memorable in the minds of jurors were also the very thing that carried the risk of undermining the integrity of the fact finding process. She also noted, which is particularly applicable here, that if the artwork was doing nothing more than reflecting the words that counsel would use to explain his arguments, then it really was redundant.

[9] When cross-examining the Crown’s witnesses, Defence counsel could have put photographs or diagrams to the witnesses and sought their agreement that they accurately portrayed the locale where the assaults took place. Defence counsel could have asked the witnesses to show where they were positioned when the assaults occurred. Defence counsel chose not to elicit this evidence. Defence counsel does not have the option, on closing, to provide the jury with a diagram showing, very specifically, where various witnesses were located vis-à-vis one another when that evidence was not adduced during the trial. Vague statements by the witnesses to the effect that they were all in the alley, and the alley was not a large space, does not equate with their being placed in specific spots in relationship to each other in an abstract presentation.

Continuum Illustrating “Beyond a Reasonable Doubt”

[10] In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, after reviewing the importance of a trial judge explaining to the jury the concept of “beyond a reasonable doubt” as Cory J. had outlined in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320 and R. v. Bisson, 1998 810 (SCC), [1998] 1 S.C.R. 306, Iacobucci J. went on to state at para. 241:

… it is generally inappropriate to define the meaning of the term “reasonable doubt” through examples from daily life, through the use of synonyms, or through analogy to moral choices. The criminal standard of proof has a special significance unique to the legal process. It is an exacting standard of proof rarely encountered in everyday life, and there is no universally intelligible illustration of the concept, such as the scales of justice with respect to the balance of probabilities standard. Unlike absolute certainty or the balance of probabilities, reasonable doubt is not an easily quantifiable standard. It cannot be measured or described by analogy. It must be explained. However, precisely because it is not quantifiable, it is difficult to explain. [Emphasis added.]

[11] This same message was given by Cory J. in Bisson, at para. 6, where he stated: “No matter how carefully they may be crafted, examples of what may constitute proof beyond a reasonable doubt can give rise to difficulties.”

[12] I take from these directions from the Supreme Court of Canada that the Court wants the concept of reasonable doubt to be explained in the type of language recommended in their judgments, with no attempt being made by the trial judge to provide examples or illustrations of what the concept means. If trial judges are not supposed to use these tactics to explain the concept, certainly counsel in their closing addresses should not do so.

[13] As an aside, I note that, while giving his closing address, and without seeking my approval in advance, Defence counsel chose to leave his position behind the podium and act out a continuum regarding standards of proof in front of the jury box. He started at one end, saying that that spot represented proof to “absolute certainty”. He walked to the other end, saying that that spot represented the total lack of proof. He stopped in the general vicinity of the middle, saying that that represented proof on a “balance of probabilities”. Then he went back to close (if not at) the spot where he started, saying that it was in that vicinity that proof “beyond a reasonable doubt” lay. In other words, he used his body and the front of the jury box to visually depict where he would place reasonable doubt on a continuum between absolute certainty and total lack of proof, despite my ruling that he could not use a line on a power point slide to depict the same concept.

Disposition

[14] For these reasons, I did not allow Defence counsel to use the proposed visual aids during his closing submissions.

Aitken J.

Released: March 7, 2014

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN
Applicant

– and –

KHAMEA LOUANGRATH
Respondent

RULING #4: USE OF VISUAL AIDS DURING CLOSING ADDRESS

Aitken J.

Released: March 7, 2014