



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), (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    the complainant or a witness shall not be published in any document or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, 212, 213, 271, 272, 273, 279.01, 279.011,
    279.02, 279.03, 280, 281, 346 or 347,

(ii) an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to make an application for the order; and

(b)  on application
    made by the complainant, the prosecutor or any such witness, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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

CITATION: R. v. A.G., 2015 ONCA 159

DATE: 20150313

DOCKET: C56091

Sharpe, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.G.

Appellant

Vincenzo Rondinelli, for the appellant

Stacey D. Young, for the respondent

Heard: October 23, 2014

On appeal from the conviction entered by Justice Joseph R.
    Henderson of the Superior Court of Justice, sitting with a jury, on February
    25, 2011, and the sentence imposed on September 10, 2012.

Hourigan J.A.:

INTRODUCTION

[1]

The appellant was convicted of one count of sexual assault and one count
    of extortion. The sexual assault conviction was stayed pursuant to the
    principles in
R
.
v.

Kienapple
, [1975] 1 S.C.R. 729. He
    was sentenced to 27 months imprisonment.

[2]

The appellant appeals his conviction on three grounds:

(i)

The Crowns
    cross-examination of the defence witnesses was improper and resulted in a
    miscarriage of justice;

(ii)

The trial judge erred in refusing
    to declare a mistrial as a consequence of an interruption in the testimony of a
    defence witness; and

(iii)The
    trial judge erred in not allowing the jury to ask a DNA expert witness a
    question.

[3]

The appellant also seeks leave to appeal his sentence. He submits that
    the trial judge erred in principle by relying on the complainants victim impact
    statement as an aggravating factor and in making factual findings that lacked an
    evidentiary basis.

[4]

For the reasons that follow, I would dismiss both the conviction appeal
    and the sentence appeal.

BACKGROUND FACTS

[5]

The complainant worked part-time as a server at a club. The appellant
    was the manager of the club.

[6]

On October 8, 2009, the appellant telephoned the complainant at her home
    about alcohol that was missing from the club. The appellant and the complainant
    offered competing versions of the details of that call and the events that
    followed.

[7]

According to the complainant, during the phone call the appellant
    angrily confronted her about a missing vodka cooler. She admitted to taking one
    cooler and said that she would reimburse the club. She claimed the appellant
    said that he had videotaped evidence of her stealing the cooler and if she did
    not come to his home within 20 minutes he would call the police.

[8]

The complainant drove to the appellants home. She testified that when
    she arrived she begged him not to inform the police. He told her that she had
    two options: either she would be arrested or he would own her. The complainant
    believed the reference to being owned meant working extra shifts or doing
    cleaning work at the club, so she told the appellant that he owned her.

[9]

At that point, according to the complainant, the appellant grabbed the
    back of her shirt and attempted to pull it off. She asked what he was doing and
    he responded: Well, I own you. When she said that was not what she thought he
    meant, he replied: Well  I guess you want to go to jail. She begged him not
    put her in that position but he proceeded to take her to his bedroom and remove
    her pants. At some point he also removed her bra.

[10]

The
    complainants evidence was that once inside the bedroom the appellant sexually
    assaulted her. He forced her to engage in fellatio and intercourse. After a few
    minutes of intercourse he told her to get dressed. She was not sure if he
    ejaculated and she did not see if a condom was used. The appellant had a phone
    in his hand or close by him throughout the sexual assault. He repeatedly
    threatened to call the police.

[11]

After
    leaving the appellants residence, the complainant went to her mothers
    boyfriends home and reported the sexual assault to her mother. A 911 call was
    made and the complainant was taken to the hospital, where a sexual assault kit
    was completed. Swabs were taken from the complainants chin, neck, and breasts,
    and her underwear was seized.

[12]

The
    appellant offered a very different version of events. He testified that he was
    at the club with his sister when he called the complainant to inquire about four
    missing vodka coolers. She initially denied taking the coolers but admitted to
    the theft when he threatened to call the police. He told her that she was fired
    and that he would mail her last cheque.

[13]

The
    appellant did not expect to hear from the complainant again and was surprised
    when she showed up at his home at around 7 p.m. that evening. According to the
    appellant, the complainant begged him not to fire her or call the police. He
    told her that it was too late, she was already fired and he and his sister had
    not decided if they were going to call the police. The appellant claimed the complainant
    then put her arm around his waist and tried to kiss him while rubbing his penis
    through his track pants. The appellant pushed her back and told her to leave.

[14]

The
    appellant testified that the complainant then backed him into a chair and kissed
    him again. She pulled out his penis and put it in her mouth. The appellant
    pushed the complainant off and told her to get out or he would call the police.
    Before leaving the appellants residence, the complainant told him that he
    would regret this.

[15]

The
    appellant was arrested the next day and his clothing was seized.

[16]

At
    trial, the complainants mother testified on behalf of the Crown. She said that
    on the evening of October 8, 2009, her daughter received a phone call and
    became very upset. She overheard the complainant begging and pleading as she
    spoke on the phone. After the call the complainant rushed out of the house.
    When the complainant arrived at her mothers boyfriends home later that
    evening she was crying and shaking. Her hair, which had been in a ponytail when
    she left, was loose and dishevelled.

[17]

The
    appellants sister testified on behalf of the defence that she was with her
    brother when he called the complainant at approximately 6 p.m. on October 8,
    2009. Her brother told the complainant that she was fired for stealing coolers
    and that they were going to call the police. The appellants sister testified
    that when she saw her brother later that evening he told her that the
    complainant had been at his house begging for her job back and had made sexual
    advances and tried to perform fellatio on him.

POSITIONS OF THE PARTIES

[18]

The
    appellant submits that the overall conduct and tenor of the Crowns
    cross-examination of the defence witnesses was so improper and prejudicial that
    it rendered the trial unfair and resulted in a miscarriage of justice. Further,
    the trial judge erred in not declaring a mistrial after a court police officer
    interrupted the Crowns cross-examination of the appellants mother to inform
    the court that he saw the appellants sister, who was present in the body of
    the court, nod to her mother multiple times as she testified. The trial judge
    also erred in failing to allow the jury to ask a question of a DNA expert after
    she had testified.

[19]

The
    appellant seeks leave to appeal his sentence on the basis that the trial judge
    erred in principle in relying on the complainants victim impact statement as
    an aggravating factor and in finding there was significant psychological and
    emotional pressure on the complainant without an evidentiary basis to support this
    finding.

[20]

The
    Crown submits that while some questions posed by the trial Crown during
    cross-examination may have been unnecessary or improper, they did not deprive
    the appellant of a fair trial or result in a miscarriage of justice. As a
    result, there is no basis for appellate intervention. The Crown argues that
    there was no error in how the trial judge dealt with the mistrial application
    or the question from the jury.

[21]

The
    Crown further submits that the sentence is fit and that the trial judge did not
    make any error in principle.

ANALYSIS

(i)
Cross-Examination by the Crown

[22]

The
    appellant submits that he was denied a fair trial because the Crowns cross-examination
    of the defence witnesses crossed the permissible bounds of advocacy and
    resulted in a miscarriage of justice. In considering whether cross-examination
    resulted in a miscarriage of justice within the meaning of s. 686(1)(a)(iii) of
    the
Criminal Code
, R.S.C. 1985, c. C-46, the appellate court must draw
    the line between conduct that is merely improper and conduct that compromises
    trial fairness. Only the latter will justify ordering a new trial. As stated by
    Labrosse J.A. in
R. v. Henderson
(1999), 44 O.R. (3d) 628 (C.A.), at pp.
    639-640:

The line between Crown counsel conduct that is
    merely inappropriate and conduct that is so prejudicial that it deprives the
    accused of a fair trial is not easily drawn: see
R. v. Daly
(1992), 57 O.A.C. 70 and
R. v. Yakeleya
(1985), 20 C.C.C. (3d) 193, 14 C.R.R. 381 (Ont. C.A.). This line is
    particularly difficult to draw in cases that essentially turn on the
    credibility of Crown and defence witnesses. In such cases, there often appears
    to be a temptation to cross the line in an effort to attack the credibility of
    a witness. The prejudice that results is not easily measured. Respect for the
    administration of justice is not enhanced where the courts appear to condone improper
    conduct.

[23]

Justice
    Doherty described the role of an appellate court in addressing an allegation of
    Crown misconduct in the manner of cross-examination in
R. v. R. (A.J.)
(1994), 20 O.R. (3d) 405 (C.A.), at p. 412:

Crown counsel is entitled, indeed in some
    cases expected, to conduct a vigorous cross-examination of an accused.
    Effective cross-examination of an accused serves the truth-finding function as
    much as does effective cross-examination of a complainant.

There are, however, well-established limits on
    cross- examination. Some apply to all witnesses, others only to the accused.
    Isolated transgressions of those limits may be of little consequence on appeal.
    Repeated improprieties during the cross-examination of an accused are, however,
    a very different matter. As the improprieties mount, the cross-examination may
    cross over the line from the aggressive to the abusive. When that line is
    crossed, the danger of a miscarriage of justice is very real. If improper cross-examination
    of an accused prejudices that accused in his defence or is so improper as to
    bring the administration of justice into disrepute, an appellate court must
    intervene:
R. v
.
Fanjoy
, [1985] 2 S.C.R. 233, 21 C.C.C. (3d) 312;
R. v. Ruptash
(1982), 68 C.C.C. (2d) 182 at p. 189 (Alta. C.A.).

[24]

The
    failure of defence counsel to object at trial to the impugned cross-examination
    is a relevant consideration, but the lack of an objection does not immunize the
    cross-examination from appellate scrutiny:
R. (A.J.)
, at p. 416;
R.
    v. Varga
(1994), 18 O.R. (3d) 784 (C.A.), at p. 797; and
R. v.
    Middleton
, 2012 ONCA 523,
289 C.C.C. (3d) 55,
at
    para. 58.

[25]

As
    noted, improper cross-examination does not necessarily lead to appellate
    intervention. In determining whether the cross-examination at issue resulted in
    a miscarriage of justice, the appellate court must look at the overall effect
    of the improper questions in the context of the full cross-examination and the
    entire trial:
R. v. Daly
(1992), 57 O.A.C. 70 (C.A.), at para. 27.

[26]

With
    these legal principles in mind, I turn to a consideration of the impugned
    cross-examination in the present case. The appellant raises four objections to
    the Crowns cross-examination:

(i) The Crown invited the
    appellants sister to comment on the veracity of the appellants evidence;

(ii) The cross-examination
    of the appellant impinged on his right to silence because the Crown questioned
    him as to why he did not tell the police when he was arrested that he was the
    one who was sexually assaulted;

(iii) The cross-examination
    of the appellant was calculated to demean and humiliate him. The Crown engaged
    in argument and offered his personal opinion regarding the veracity of the
    appellants evidence. Examples of this conduct include: calling the appellant a
    liar and a scammer; asking the appellant what tawdry movie does that scene
    come from? when the appellant testified that it was the complainant who
    sexually assaulted him; and opining that no one would believe such an outrageous
    story as youve told; and

(iv) The crossexamination
    of the appellants mother and sister was laced with sarcasm. The Crown also offered
    his opinion on the veracity of their evidence. Examples of this conduct
    include: asking the appellants sister why he had to drag her evidence out of
    her; commenting that he had never heard of a woman insisting that she perform
    oral sex and commenting to the appellants mother that the Crowns questions would
    only be confusing to someone who was intent on not telling the truth.

[27]

I
    reject the argument that questioning the appellants sister regarding whether
    she believed her brothers version of events was improper. It is generally impermissible
    to ask one witness to comment on the veracity of another witnesss evidence:
R.
    v. H. (R.)
, 2013 ONCA 126, at para. 3. However, in this instance, the
    purpose of the question was not to impugn the credibility of the appellant or
    to require the witness to explain her brothers testimony. There was no question
    that the witness believed her brother; she was not being invited to attack his
    credibility. Rather, when this question is considered in the context of the
    full cross-examination, it is clear that the Crowns position was that the
    appellants sister acted in a manner that was inconsistent with her testimony
    because she did not call the police when her brother reported that he had been
    sexually assaulted. The question was relevant to her own credibility rather
    than that of the appellant, and was not improper.

[28]

I
    also reject the argument that the Crowns questioning of the appellant
    regarding his statements to the police at the time of his arrest breached his
    right to silence
. This portion of the
    cross-examination proceeded as follows:

Q. And upon your arrest by Detective Jason Myers, you chose to
    talk to him about her stealing, rather than her sexually assaulting you. Right?

A. Because if we would have fired her when we caught her
    stealing, none of this would have happened.

Q. In other words, you are being led away in handcuffs, youve
    just been told  youre under arrest for sexual assault and extortion

A. Of.

Q.  by [the complainant], and surely  surely it would occur
    to you to say  what the devils going on? Im the guy who got sexually
    assaulted. Youve got the wrong man here, unless the police specialize in
    arresting victims instead of accuseds. Is that what the story is?

A. No, the story is, is they arrested me and then Mr. Myers
    told me that if I wanted a lawyer, I could get a lawyer. But as soon as he said
    the word extortion, I didnt know what he was actually talking about, about
    extortion. I didnt know if all of a sudden we started talking about money, if
    Im extorting her out of money, or what the  what the word for the extortion
    was going for.

[29]

In his closing argument the Crown referred to the
    appellants post-arrest statements to the police as part of the argument that
    the appellants version of the assault was not believable. The Crowns point
    was that if the appellant had been the victim of a sexual assault, he would
    have told this to the police rather than mentioning the theft that provoked the
    complainants dismissal. The Crown did not urge the jury to find the appellant
    guilty due to a failure to assert his innocence or a refusal to answer police
    questions:
R. v. Johnson
, 2010 ONCA 646,
262 C.C.C. (3d) 404, at
    paras. 69-71;
R. v. Turcotte
, 2005 SCC 50, [2005] 2 S.C.R. 519, at
    paras. 41-42
. This questioning also did not
    suggest that the jury should find the appellant guilty because he did not tell
    police about his own alleged assault until later.

[30]

The Crown was entitled to cross-examine on the
    statements the appellant made to police, including omissions from the
    appellants story.
It is true that the Crown must tread carefully when
    doing so in order to avoid suggesting the accused has a positive obligation to
    answer police questions:
R. v. Paris
(2001), 150 C.C.C. (3d) 162 (Ont.
    C.A.), at paras. 41-42. However, when the questions at issue are considered in
    context, in my view the Crown did not cross this line.
The Crowns suggestion that the appellants statements to police were
    not consistent with his position at trial was not an attempt to extinguish
    his right to silence.

[31]

Defence counsel did not object to this portion of the
    cross-examination at trial. In defence counsels closing address to the jury he
    also referred to the appellants post-arrest statements and made various
    suggestions as to their significance. In fact, defence counsel urged the jury
    to find that these statements
did
constitute an implicit assertion of
    innocence. Defence counsel encouraged the jury to infer that when the appellant
    said [i]ts not like she said to police after his arrest, what he meant was:
    [W]hen she told you that I sexually assaulted her, thats not what happened.

[32]

Notwithstanding
    the foregoing, I am of the view that other portions of the cross-examination of
    the defence witnesses crossed the line of acceptable questioning and were
    improper. Indeed, Crown counsel on the appeal concedes this point.

[33]

In
    particular, it was inappropriate for the trial Crown to opine with respect to
    the appellants testimony that no one would believe such an outrageous story
    as youve told.

[34]

Similarly,
    the trial Crown should not have offered his opinion on the implausibility of the
    appellants sisters testimony regarding a woman forcing oral sex on a man.

[35]

The
    trial Crowns statement to the appellants mother that his questions were only
    confusing to someone who was intent on not telling the truth was also inappropriate.
    I note that defence counsel immediately objected to this question and the trial
    judge ruled it improper.

[36]

I
    also agree with the submission of the appellant that at times the Crowns questioning
    was sarcastic and disrespectful, and that he used inflammatory language in both
    his cross-examination and his closing argument.

[37]

In
    considering whether this improper questioning resulted in a miscarriage of
    justice or impaired trial fairness, some additional context is important.

[38]

First,
    I note that the defence did not object at trial to the cross-examination of the
    appellant now at issue or suggest that it was unfair or abusive. While a failure
    to object is not fatal, it does speak to the perception of the fairness of the
    questions at trial and in the context of the broader testimony:
Middleton
,
    at para. 58.

[39]

Second,
    there was aggressive cross-examination of both the appellant and the complainant.
    The complainant was cross-examined for two and a half days. During the course
    of that examination, she was repeatedly admonished by defence counsel for
    making speeches. Defence counsel also suggested to her that she was not
    telling the truth about what happened between her and the appellant. In his
    closing submission, defence counsel said that the complainant was playing the
    victim and that her testimony was full of lies.

[40]

Third,
    the primary issue at trial was credibility. The versions of events provided by
    the appellant and the complainant were diametrically opposed. In these
    circumstances it would have been obvious to the jury that both parties could
    not have been telling the truth:
Daly
,
at paras. 28-29,
R. v.
Yakeleya
(1985)
, 20 C.C.C. (3d) 193 (Ont. C.A.), at p.196. It could
    not have come as a surprise to the appellant or the jury that the Crowns
    position was that the appellant had fabricated his version of events:
R. v.
    Khan
(1998), 126 C.C.C. (3d) 523 (B.C. C.A.), at para. 19. The Crowns
    suggestions that the appellant was not being truthful should be assessed in
    light of this consideration.

[41]

Fourth,
    on my reading of the transcript, the appellants mother was a difficult
    witness. She was evasive and argumentative, and appeared to be reluctant to
    answer straightforward questions for fear that she would prejudice her sons
    defence.

[42]

Finally,
    a number of other factors suggest the appellant did not suffer prejudice as a
    result of the Crowns questioning: the Crown did not otherwise attack the
    appellants character; the trial judge instructed the jury that the lawyers
    questions did not constitute evidence and the defence did not apply for a
    mistrial based on this questioning.

[43]

In
    my view, when these factors are taken into account, it is clear that the
    cross-examination at issue did not result in a miscarriage of justice. This was
    a vigorously contested trial. The Crowns cross-examination crossed the line at
    points. However, it was not intended to demean or humiliate the appellant. When
    viewed in the context of the overall case  including the failure of defence
    counsel to object to much of the cross-examination now complained about, the vigorous
    cross-examination on both sides, the evasiveness of the appellants mother and
    the clear conflict between the two competing versions of events  I am not
    satisfied that these isolated instances were prejudicial. The Crowns
    cross-examination did not render the trial unfair or result in a miscarriage of
    justice.

(ii)
Mistrial Application

[44]

During
    the course of the Crowns cross-examination of the appellants mother, the
    following interaction occurred:

The Court: Just a second.

Police Court Officer: May I address the court Your Honour.

The Court: Yes.

Police Court Officer: I am watching this witness here [the
    appellants sister] give nods to that witness on the stand [the appellants mother]

A [Identity of speaker unclear]: I didnt do anything.

Police Court Officer:  its also witnessed by the gentleman in
    the back of the court.

The Court: All right.

Police Court Officer: I have been watching for  during her
    entire testimony I have seen it five times, he has seen it twice.

The Court: All right. Im going to stand down for a few
    minutes. I am going to excuse you ladies and gentlemen.

[45]

The
    trial judge then received submissions on this issue in the absence of the jury.
    He decided to provide the jury with a mid-trial instruction, which included the
    following statement:

I do not know whether there was intended communication with
    this witness or not, I am not making any finding on that. You know that some
    people are more animated than others and she may have just been nodding or
    shaking her head following the evidence. I do not know.  I am not drawing any
    conclusions but I have excluded her from the courtroom to ensure that there are
    no further concerns.

[46]

At
    the conclusion of the defence evidence and prior to closing arguments, the
    defence brought an application for a mistrial. Defence counsel argued this was
    the appropriate remedy as a result of the court police officers interruption.
    In dismissing the application, the trial judge observed that a mistrial is a
    drastic remedy and should only be ordered in circumstances where there is no
    other suitable course of action. He noted that it would have been preferable if
    the court police officer had asked if he could address the court in the absence
    of the jury. However, the trial judge found that his mid-trial instruction was
    immediate and clear and that it dispelled any prejudicial impact.

[47]

After
    finding that a mistrial was not appropriate in the circumstances, the trial
    judge stated:

Moreover, to compel everyone to go through this extremely
    emotional trial again, would be an injustice to all of the parties, the
    witnesses, their families and the jurors.

[48]

The
    appellant submits that the trial judge erred in principle in dismissing the
    mistrial application. The appellant argues that the trial judge failed to
    consider the impact of not declaring a mistrial on the appellant and that the
    trial judges finding of potential injustice was speculative.

[49]

The
    appellant also submits that the decision not to declare a mistrial was clearly
    wrong because the conduct of the court police officer irreparably damaged trial
    fairness. This is particularly so, the appellant argues, given that the
    interruption occurred after the Crown had embarked on a concerted campaign to
    portray the appellants sister and mother as liars motivated to help the
    appellants case. Further, the appellant argues that excluding the appellants
    sister from the courtroom aggravated the prejudicial impact of the incident because
    it suggested to the jury that she could not be trusted.

[50]

As the trial judge correctly noted, a mistrial is a remedy of
    last resort and should be ordered only where necessary to prevent a miscarriage
    of justice. Before granting this extraordinary remedy, the court should
    consider and reject as inadequate other less extreme remedies, such as a
    mid-trial instruction:
R. v. Chiasson
, 2009 ONCA 789, at para.
14;
R. v. Toutissani
, 2007 ONCA 773, at para. 9;
R. v.
    Burke
,
2002 SCC 55, [2002] 2 S.C.R. 857, at para. 77
.

[51]

Because
    the determination of whether a mistrial should be granted is a matter within
    the discretion of the trial judge, an appellate court will only interfere with
    that decision if it is clearly wrong or based on an erroneous principle:
Chiasson
,
    at para. 14.

[52]

As
    stated by the Quebec Court of Appeal in
R. v. Lessard
, (1992) 74
    C.C.C. (3d) 552 (Que. C.A.), at p. 563, a trial judge is best positioned to
    assess whether a mistrial is warranted in the circumstances and appellate
    courts owe trial courts significant deference on that determination:

The trial judge is the person, much more so than the Court of
    Appeal judges several years later, in the best position to assess its true,
    concrete and practical impact on the jury, in light of the general atmosphere
    in which the trial took place, the specific circumstances of the case, of what
    he may have observed during all the stages of the trial and the reaction of the
    members of the jury at the time of his comments on the incident. He is also in
    the best position to find a solution which would neutralize the poison
    distilled in the minds of the jury. His decision must therefore be given the
    greatest respect and it is only where the evidence shows that he was clearly
    mistaken and that he did not properly exercise his discretion that, in my view,
    a Court of Appeal can and must intervene.

[53]

I
    am not satisfied that the trial judge erred in refusing to grant a mistrial. He
    properly determined that, given his mid-trial instruction, this was not a
    situation where the remedy of a mistrial was necessary. I agree with the trial
    judges ruling on the mistrial application that his instruction was clear,
    concise, and prompt. The trial judge specifically cautioned that individuals
    may nod their heads for a variety of reasons, and that the jury should not draw
    any conclusions from the court police officers statements.

[54]

In
    my view, the instruction was fair and adequately addressed any potential
    prejudice. The trial judge was in the best position to determine whether in the
    circumstances of this case, including the Crowns improper cross-examination,
    the drastic remedy of a mistrial was appropriate. The appellant has not
    identified any error in principle in the trial judges exercise of his
    discretion. The incident at issue was brief and relatively innocuous. It was
    reasonable for the trial judge to conclude this did not necessitate a new
    trial.

[55]

I
    also fail to see anything inappropriate in the trial judges comments regarding
    the injustice of another trial. A trial judge is entitled to consider the
    broader impact of a declaration of a mistrial. Indeed, it appears to me that
    his comments are a paraphrase of Laskin J.A.s comments in
R. v. Leduc
(2003)
, 66 O.R. (3d) 1 (C.A.), at para.
    154, where he said:

New trials should be avoided where possible. The
    accused, the other participants in the trial, the criminal justice system and
    the community at large must all suffer the consequences  financial, emotional
    and otherwise  of going through the proceedings again.

[56]

For
    the foregoing reasons, I would not give effect to this ground of appeal.

(iii)
Jury
    Question

[57]

At
    trial, Melanie Richard, a forensic scientist from the Centre for Forensic
    Sciences, was called by the Crown as an expert witness on bodily fluid
    identification and DNA interpretation.

[58]

Ms.
    Richard testified that forensic testing of the complainants swabs and
    underwear revealed male DNA in such a low level that a suitable profile for
    comparison with the appellants DNA could not be determined. There was no semen
    on the complainants underwear but amylase, which is often present in saliva,
    was detected from an unknown source. Further testing revealed male DNA from
    three different contributors near the waistband of the complainants underwear,
    but the source and profiles again could not be determined.

[59]

Following
    Ms. Richards testimony, the trial judge asked her some follow-up questions to
    clarify what she meant when she referred to low-level male DNA. Ms. Richard
    explained that this meant she was unable to determine a DNA profile and a
    precise bodily fluid source.

[60]

The
    day after Ms. Richards testimony, the jury sent a note to the trial judge
    requesting clarification from Ms. Richard regarding her evidence about the
    three different DNA contributors identified near the waistband of the
    complainants underwear. They wanted to know whether washing underwear on a
    delicate cycle in a washing machine would completely remove all traces of DNA.

[61]

The
    trial judge consulted with counsel about the note. He then instructed the jury
    that they did not have the right to ask questions of a witness. He told them
    that it was the role of counsel to determine what evidence would be led and
    that it was his role to ensure that the evidence was admissible. The trial
    judge also reminded the jury that the trial was not over and there may be more
    evidence on this issue that had not yet been presented to them. Defence counsel
    did not object to the trial judges instruction.

[62]

The
    appellant submits that, although rare, jury questioning has been judicially
    endorsed in Canada. Further, just as the trial judge asked Ms. Richard
    follow-up questions, the jury should have been afforded the same opportunity.

[63]

I
    accept the appellants submission that permitting a jury to ask questions of a
    witness is not prohibited. However, the decision to allow this type of questioning
    is within the discretion of the trial judge and safeguards must be in place to
    ensure that only admissible evidence is elicited and that the parties are not
    prejudiced:
R. v. Andarade
(1985), 18 C.C.C. (3d) 41 (Ont. C.A.), at pp.
    59-60.

[64]

The
    dangers of permitting a jury to ask questions of a witness are obvious. In
    addition to potentially eliciting inadmissible evidence, such questioning may
    run contrary to trial counsels strategy and an objection by counsel to a
    question may trigger conflict with the jury or create the impression that
    important evidence is being hidden. Moreover, there is a risk that a jury
    empowered to ask questions will move from being judges of the facts to being advocates:
S. Casey Hill, David M. Tanovich & Louis P.
    Strezos,
McWilliams' Canadian Criminal Evidence
, loose-leaf, 5th ed. (Toronto:
    Canada Law Book, 2014), at p. 21-177
.

[65]

While
    I agree with the appellant that the trial judges instruction to the jury that
    they were not permitted to ask questions was incorrect, I would not give effect
    to this ground of appeal.

[66]

The
    decision to permit a jury to ask a witness a question is discretionary. This
    practice is not unknown in Canadian law, but it is permitted very rarely. Even
    questions by judges are usually limited to the clarification of evidence, as
    was done by the trial judge in this case.

[67]

In
    my view, this was an appropriate case for the trial judge to refuse to put the
    jurys question to the witness. The proposed question went well beyond
    clarification and opened up a new issue regarding the removal of DNA in the
    laundering process. This issue was not raised in Ms. Richards evidence.

[68]

Moreover,
    the proposed line of inquiry was irrelevant to the matters at issue in the
    case. The underwear was not laundered before it was seized by the police. Further,
    the fact that other DNA profiles were present did not have any impact on what
    happened between the appellant and the complainant. Permitting the jury to ask
    these questions would have led the trial into an area that was immaterial and
    unhelpful.

(iv)
Sentence
    Appeal

[69]

The
    appellants first submission on his sentence appeal is that the trial judge
    erred in principle in relying on the complainants victim impact statement as
    an aggravating factor. I note that this trial took place prior to amendments to
    s. 718.2 of the
Criminal Code
,
    which
mandates courts to consider evidence that the offence had a
    significant impact on the victim, considering their age and other personal
    circumstances, including their health and financial situation.

[70]

Section
    722 of the
Criminal Code
requires that courts have regard to a victim impact
    statement in fashioning an appropriate sentence. In
R. v. Taylor
,
[2004] O.J. No. 3429 (C.A.), at paras.
    41 and 42, Blair J.A. considered the issue of whether a victim impact statement
    could be relied on by a sentencing judge as an aggravating factor:

Similarly, counsel for Mr. Taylor submitted
    that the trial judge erred in utilizing the victim impact statements presented
    to him as an aggravating factor justifying a heavier sentence. In my view,
    this case does not provide a proper record for a full analysis and assessment
    of the uses of victim impact statements and the ways in which a trial judge may
    take them into account for the purpose of sentencing. Suffice it to say that in
    my opinion, the trial judge in this case did not utilize the victim impact statements
    specifically to increase the sentence beyond what would otherwise be a fit
    sentence, albeit that he referred to the permanent residual consequences for
    the family and the friends of the victim, referred to in the victim impact
    statements filed in his list of aggravating factors.

I would observe only that victim impact
    statements, like criminal records, do not justify double punishment  once for
    the crime against society, and again to counterbalance the harm done to the
    victims (a sort of criminal revenge in lieu of civil damages). Parliament
    has provided in s. 722 of the
Criminal Code
,
    however, that the court shall consider such statements for the purpose of
    determining the sentence to be imposed on an offender. The court must
    therefore take them into account; otherwise there is no point in having them.
    Whether victim impact statements may be used by the sentencing judge, in
    themselves, to increase or decrease the fitness of the sentence, is an issue I
    leave for determination on another day. What they do at least, in my
    opinion, is help the judge to understand the circumstances and consequences of
    the crime more fully, and to apply the purposes and principles of sentencing in
    a more textured context. Here, the trial judge did no more than that. He
    did not err in his use of the victim impact statements he had before him.

[71]

In
    the present case, the trial judge determined that the appropriate range of
    sentence was between 18 months and four years imprisonment, depending on the
    circumstances of the offence and of the offender. The appellant has not offered
    any case law that challenges this range of sentence.

[72]

As
    the trial judge noted, this was a very serious sexual assault involving
    intercourse and fellatio. The appellant was in a position of authority as the
    complainants employer. In these circumstances, I am not satisfied that the
    trial judge relied upon the victim impact sentence to impose a sentence that
    was unfit. Like in
Taylor
, while the victim impact statement was
    included in the trial judges list of aggravating factors, there is no
    suggestion that this factor was used to increase the appellants sentence to an
    inappropriate level.

[73]

Moreover,
    in my view, it is not an error in principle for a sentencing judge to determine
    that the impact of the crime on a victim, as described in a victim impact statement,
    is an aggravating factor. If it were otherwise, victim impact statements would
    have limited utility and the mandate to consider them as part of

the sentencing process found in s. 722 of the
Criminal
    Code
would be rendered meaningless.

[74]

The
    appellants second argument on the sentence appeal is that the trial judges
    finding that there was significant psychological and emotional pressure on the
    complainant at the time of the assault lacked an evidentiary basis.

[75]

I
    would not give effect to this ground of appeal. These findings were amply
    supported by the evidence, including:

·

The appellants threats to terminate the complainants
    employment;

·

The appellants threats to call the police if the complainant did
    not have sex with him;

·

The fact that the appellant was in a position of authority as the
    complainant's employer; and

·

The complainants evidence that the appellant knew lots of
    people while she was a nobody.

[76]

In
    light of these considerations, I am not satisfied that the trial judge made any
    error in principle or that the sentence imposed was unfit.

DISPOSITION

[77]

For
    the foregoing reasons, I would dismiss the conviction appeal. While I would
    grant leave to appeal sentence, I would also dismiss the sentence appeal.

Released: March 13, 2015 RJS

C.W.
    Hourigan J.A.

I
    agree Robert Sharpe J.A.

I
    agree G. Pardu J.A.


