



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    identify the complainant or a witness shall not be published in any document or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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 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; 2005, c. 43, s. 8(3
)(
b).

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.






CITATION:
R. v. D.E., 2011
          ONCA 117





DATE:  20110210



DOCKET: C48788



COURT OF APPEAL FOR ONTARIO



Winkler C.J.O.,
          Laskin and Goudge JJ.A.



BETWEEN



Her Majesty the
          Queen



Respondent



and



D. E.



Appellant



Ian N. McLean, for
          the appellant



Dena Bonnet, for the
          respondent



Heard:
December 8, 2010



On appeal from the
          conviction entered on February 4, 2008, by Justice Michael H. Tulloch of the
          Superior Court of Justice, sitting with a jury.



ENDORSEMENT



[1]

This is an appeal from a conviction for sexual assault
    after a trial before a judge and jury.  On
    the basis of certain comments in the Crowns closing to the jury, the appellant
    moved unsuccessfully for a mistrial.  Following the trial judges charge to the
    jury, the appellant renewed his concerns and sought to have the jury recalled
    and cautioned about those Crown comments that the trial judge had not addressed
    in the charge.  After discussion with
    counsel, the trial judge decided not to do so.

[2]

The appellant appeals from his conviction arguing that
    the Crowns comments resulted in an unfair trial.

[3]

We disagree. Our reasons follow.

Background

[4]

The complainant first disclosed conduct by the
    appellant, her uncle, to her mother as a result of her mother asking whether anything
    inappropriate had ever happened between the two of them.  After that initial disclosure, the complainant
    gave a video-taped statement to the police.  This statement, which was given when she was
    almost ten years old, related to incidents that had occurred when she was in
    grade one, up to four years earlier.  The
    video was played before the jury, adopted by the complainant as the truth, and
    admitted as evidence in the trial on consent pursuant to section 715.1 of the
Criminal
    Code
.  The complainant also testified
    at trial.  This was essentially the
    evidence led by the Crown.

[5]

The defence called the complainants mother, C.M., who
    testified that in September of 2005 she had a conversation with the complainant
    about whether anything inappropriate had ever happened between the complainant
    and the appellant.  Her evidence was that
    the complainant had said that the appellant had touched her in a way that made
    her feel uncomfortable, touched her around her arms, the inside of her thighs.  C.M. asked the complainant if the appellant
    had touched her in the crotch or crotch area and the complainant told her
    that he had not.  However, in the complainants
    video statement to the police and subsequent testimony she had stated that she
    had been touched in various ways, including on or near her vagina.

[6]

Under cross-examination by the Crown, C.M. stated that
    when she had this conversation with her daughter she began to cry.  She agreed that it was pretty emotional and
    that the complainant began to cry as well, which made it worse.  She agreed that it was an emotional day, one
    that was difficult to recall.  She agreed
    that she did not ask for details but only asked specific questions.  She agreed that once her daughter answered
    the questions, she decided to leave it to the police to interview her.  She also agreed that her daughter used hand
    gestures (as she did in the video statement) to indicate that the appellant had
    touched her thighs. She also agreed that the complainant had told her that the
    appellant had put his hands down her pants. The complainants mother explained
    that since that day she did not ask the complainant to elaborate on what had happened
    because she didnt want to jeopardize anything. I didnt want to be  to put
    anything in her head.

Issues Raised on Appeal

[7]

The issues raised on appeal all relate to the Crowns
    closing remarks to the jury. The appellant complains that the Crown invited the
    jury to remember what it was like to be six or seven years old again when
    they considered the lack of detail in the complainants recollection of events.
     In our view, this amounted to little
    more than asking the jury to apply their common sense in assessing that
    evidence.  We cannot accede to this
    ground of appeal.

[8]

Of somewhat greater concern, later in her closing the
    Crown asked the jury to consider, when assessing inconsistencies in the
    evidence, how you would react to a traumatic event like this.  Although this comment was made in passing and
    no particular emphasis was placed on it, it invited the jury to put themselves
    in the position of a victim of a crime, rather than to remain independent
triers
of fact.  This
    was not an appropriate comment. Nonetheless, in the context of the entire
    trial, including the opening instructions and the charge to the jury read as a
    whole, we do not think it could have reasonably affected the verdict.  Although the trial judge was concerned about
    this language, he chose not to add a specific caution regarding it.  We are not prepared to interfere with his discretion
    in declining to do so.  Indeed, a
    specific caution may well have drawn more attention to the issue than it
    merited.

[9]

The appellant further argues that the Crown commented
    inappropriately about the demeanour of the complainant in her closing by
    indicating that the manner in which the complainant gave her video statement to
    the police suggested that she was embarrassed.  In our view, this is something the jury was
    quite capable of evaluating for themselves.  In the trial judges opening instructions and
    charge to the jury he emphasized that what counsel said was not evidence, and that
    the jury should rely only on their own observations and recollection of the
    evidence to determine the facts of the case. In our view that was sufficient.

[10]

The appellant also contends that the Crown made
    inappropriate comments with respect to the complainants mother, C.M. In her
    closing address to the jury, Crown counsel said:

Lets talk about [C.M.], and as you in your own
    experiences have noticed, people can sometimes remember things slightly
    differently. Now you heard from [C.M.]. She was called by the defence, and it
    was apparent by her testimony that this was clearly emotional for her, and she
    testified in a fashion that suggested perhaps that she felt a certain amount of
    guilt over what happened to her daughter. This is a mother who failed to
    protect her daughter, and of course I say that not to be critical of her, but when
    youre considering her evidence, consider her not wanting to face the full
    truth of the situation, and the full truth of what happened, and it happened
    directly under her nose, through no fault of hers. And that must be the most
    difficult thing for a parent to imagine, for a parent to have to deal with and
    live through.

[11]

The thrust of this argument is that the Crown offered
    up facts not in evidence as explanations for inconsistencies in the evidence.
    The appellant relied on the decision of the Supreme Court of Canada in
R. v.
    Rose
, [1998] 3 S.C.R. 262, in which the majority stated at
para
. 107:

In presenting closing submissions to the jury,
    Crown counsel must be accurate and dispassionate. Counsel should not advert to
    any unproven facts and cannot put before the jury as facts to be considered for
    conviction assertions in relation to which there
is no
    evidence
or which come from counsel's personal observations or
    experiences.

[12]

It is trite law that Crown counsel ought not to make
    submissions to the jury without having first established a proper evidentiary
    foundation. While there was no direct evidence that the complainants mother
    felt guilty or somehow responsible for what had happened, in our view the Crown
    was merely suggesting an inference that the jury could properly draw from the
    evidence together with the manner in which it was given.  That said
,
the choice
    of language left something to be desired.  These comments, when taken in isolation, came
    near to that which will not be countenanced by a court. However, in the context
    of the totality of the evidence and the fullness of the trial judges
    instructions and charge, we are not persuaded that the jury would have been
    unduly influenced by these comments in rendering its verdict.

[13]

Shortly thereafter, in her closing Crown counsel
    continued:

And youll recall that I asked [C.M.] if [the
    complainant] showed her that she had been touched on the vaginal area. She
    pointed to that area, and she indicated only the thigh. So it was her testimony
    that her daughter told her that [the appellant] had touched her on the arms and
    thigh. And I ask you to ask yourselves, why then would she call the police if
    that was all her daughter had told her, that he had touched her on the arms and
    the thigh. Of course, if its as [the complainant] recalls it, that she told
    her mother he touched me on the vagina and on the breasts or chest, there would
    be good reason to call the police, and we know that the police were contacted.

[14]

Finally, the appellant submits that the Crown crossed
    the line in asking rhetorically why the complainants mother went to the police
    if the complainant had not complained to her in the words the complainant said
    she used, rather than the manner in which her mother recalled. The Crown ought
    not to have engaged in this rhetoric. However, in our view, the trial judge
    acted within his discretion in deciding that this did not warrant remedial
    action. Significantly, when the evidence of the complainant and her mother is
    considered in its entirety, especially the evidence of C.M. on
    cross-examination, their evidence does not differ in any material respect,
    something the jury would have been aware of.

[15]

In his charge, the trial judge went to great lengths to
    impart fairness by reviewing C.M.s testimony in detail and reiterating the
    concerns of the defence when outlining the defences position.  He was careful not to repeat any of the
    egregious remarks from the Crowns closing remarks to the jury.

[16]

When requested to recall the jury, the trial judge
    exercised his discretion and decided not to address the appellants concerns
    further.  We are not persuaded to
    interfere with that decision.  In our
    view, his charge was balanced and fair.  While certain of the Crowns closing remarks were
    best left unsaid, taken either separately or together, they did not render the
    trial unfair.

[17]

The appeal is dismissed.

Winkler
    CJO

John Laskin J.A.

S. T. Goudge J.A.


