



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), (2.1), (2.2), (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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(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    that could identify the victim shall not be published in any document or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; and

(b) on application of
    the victim or the prosecutor, 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);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
    18..

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. Clyke, 2021 ONCA 810

DATE: 20211116

DOCKET: C66622

Rouleau, van Rensburg and
    Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Shawn Clyke

Appellant

Margaret Bojanowska, for the appellant

Benita Wassenaar, for the respondent

Heard: April 30, 2021 by video conference

On appeal from the conviction entered on
    July 7, 2017 by Justice Julie A. Thorburn of the Superior Court of Justice,
    sitting with a jury.

By the Court
:


A.

OVERVIEW

[1]

The appellant and two co-accused were charged with sexual assault and
    several related offences. The charges arose from an alleged attack on the
    complainant by three individuals in the early hours of the morning in an
    abandoned shed in downtown Toronto. The appellant and Derrick Goulding were
    tried together, while the third individual was tried separately.

[2]

The Crowns theory at trial was that the appellant and Mr. Goulding had
    participated in an opportunistic crime. Mr. Goulding testified. He claimed that
    on the day of the alleged offence he and the complainant had sex in a
    consensual sex-for-drugs transaction, and that no sexual assault or assault had
    taken place. The appellant did not testify. His counsel argued that the case
    against him had not been proven beyond a reasonable doubt and that the
    complainants late identification of him as one of her assailants was suspect.

[3]

After an 18-day trial, the jury found the appellant and Mr. Goulding
    guilty of two counts of assault
simpliciter
and one count of assault
    causing bodily harm. Both were acquitted of sexual assault, unlawful
    confinement, sexual assault with a weapon, and being a party to a sexual
    assault.

[4]

The appellant appeals his convictions based on alleged improprieties in
    the Crowns closing argument. He submits that the Crowns closing submissions
    contained serious improper and inflammatory remarks that rendered his trial
    unfair.

[5]

The impropriety of Crown counsels conduct at trial is not disputed. The
    respondent acknowledges that the Crowns closing submissions at trial crossed
    the line in many respects. Nevertheless, the respondent contends that the trial
    judges corrective instruction and passages from the charge to the jury, taken
    together, adequately addressed any prejudice to the appellant arising from the
    Crowns closing submissions.

[6]

For the reasons that follow, the appeal is allowed, the appellants
    convictions are set aside and a new trial on the charges of assault and assault
    causing bodily harm is ordered.

[7]

Briefly, we conclude that the Crowns closing submissions contained
    improper and inflammatory remarks that cumulatively rendered the appellants
    trial unfair and resulted in a miscarriage of justice despite the trial judges
    corrective instruction and charge.

B.

BACKGROUND

(1)

An Overview of the Evidence at Trial

[8]

The complainant, S.L., alleged that, on the morning of April 22, 2015,
    she was assaulted by three men in an abandoned shed at College Park, in
    Toronto. At the time she was 20 years old and lived in a womens shelter. The
    police learned of the assault after S.L. returned to the shelter, in serious
    distress. The attending officer believed that a sexual assault had taken place.

[9]

Mr. Goulding was found the following day, in the shed where the assault
    was alleged to have taken place, and arrested shortly thereafter. The appellant
    was not identified by the complainant as an assailant until several months
    later, in November 2015. Ultimately, three men  the appellant, Mr. Goulding
    and a third person, P.S.  were charged with several offences: assault,
    unlawful confinement, sexual assault using a weapon, assault causing bodily
    harm, and being a party to a sexual assault. Initially, they were to be tried
    jointly, but when P.S. changed counsel, his charges were severed. The appellant
    and Mr. Goulding proceeded to trial together, while P.S. was to be tried later.

[10]

S.L.
    testified. On her account, shortly before the assault, she ran into an
    acquaintance named Cody, near College Park. While the two were together drinking
    coffee, Mr. Goulding and two other men, one of whom she identified as the
    appellant, approached them. She knew who they were from seeing them around but she
    did not know them well. Mr. Goulding began screaming and yelling, and he
    claimed that S.L. was his girlfriend (which according to S.L. was untrue). Cody
    ran off, while Mr. Goulding suddenly attacked her. S.L. testified that Mr. Goulding,
    the appellant and the third man dragged her into the abandoned shed where they
    assaulted her with bricks and sticks and took turns sexually assaulting her.
    S.L. was able to provide only limited details about what happened during the
    sexual assault. She was eventually able to escape after her assailants took a
    break to smoke crystal meth.

[11]

S.L.
    returned to the shelter where she was staying, where a shelter worker noticed
    her condition. S.L. reported the assault to the police, who documented her
    injuries. She also underwent an examination by a sexual assault nurse, who took
    samples for DNA testing. A DNA expert testified that there were at least three
    contributors of DNA found in the DNA samples: one was likely S.L., one was Mr. Goulding,
    and a third sample  which she opined was likely male  was unsuitable for
    comparison.

[12]

S.L.s
    blood was also tested, revealing the presence of low levels of methamphetamine.
    S.L., who had a history of drug use, denied having consumed any drugs in the
    months leading up to the assault.

[13]

Mr.
    Goulding testified that he sold drugs, and that the appellant helped him in
    this pursuit. He testified that he and S.L. had a relationship, and that he
    would give her drugs in exchange for sexual services. Mr. Goulding testified
    that he had confronted Cody over a drug debt, and later the same day he and the
    appellant had run into S.L. and Cody at a coffee shop. He testified that he,
    S.L. and the appellant went together to a womans shelter where they were
    consuming drugs. Mr. Goulding testified that he provided drugs to S.L. in
    exchange for sex. While they were there, a fire alarm went off. Thereafter, the
    three went to College Park, where they continued to smoke crystal meth in the
    abandoned shed. Mr. Goulding denied assaulting or sexually assaulting S.L.; he
    testified that he left the shed at some point, and that when he returned the
    appellant and S.L. were still there.

[14]

An
    expert witness called by the Crown testified about alternative ways that drugs
    could have ended up in S.L.s system, assuming she did not intentionally ingest
    them. The first was through second-hand smoke, by being in a confined space with
    others who were smoking methamphetamines. The expert however considered this
    method to be inconsistent with the levels detected in S.L.s blood. Second, if
    methamphetamines touched a highly vascularized area of the body, such as the
    nose, mouth, vagina or anus, they could enter a persons blood stream. The
    expert was also asked whether methamphetamines could transfer through semen.
    She was not aware of any literature on the subject and could not say whether
    this was possible.

[15]

The
    jury found the appellant and his co-accused not guilty of sexual assault and
    unlawful confinement, but guilty of assault causing bodily harm and assault
simpliciter
.

(2)

Objections to the Crowns Closing at Trial

[16]

The
    Crown addressed the jury last. Immediately after her closing submissions, both
    defence counsel raised a number of objections. These included that:

·

the Crown invited the jury to engage in propensity reasoning
    based on evidence about the bad character of the two accused; in particular, linking
    their exploitation of drug addicts to their exploitation of S.L.;

·

the Crown provided commentary about how the act was brutal, and
    something no mother, sister, or friend should experience;

·

the Crown gave her personal endorsement of the complainants credibility;

·

the Crown submitted that the complainant was able to convince the
    sexual assault nurse of her story and relied on this to bolster the
    complainants credibility;

·

the Crown submitted that Mr. Gouldings account of a fire alarm
    was not credible because he did not mention the firefighters who attended the
    scene, when there was no evidence led about when the firefighters arrived or
    where they went; and

·

the Crown gave evidence by talking about her personal experience
    dropping a brick.
[1]

[17]

Defence
    counsel did not move for a mistrial; instead, they asked the trial judge to
    provide a corrective instruction to the jury.

(3)

Discussions with Counsel

[18]

The
    trial judge received submissions on the alleged problems with the Crowns
    closing. Since it was already late in the day, and anticipating that her discussions
    with counsel would take some time, the trial judge released the jury until
    11:30 a.m. the following day. Defence counsel raised a considerable number of
    objections, some more significant than others. The trial judge worked with
    counsel to sort through which of the many objections she would address with the
    jury.

[19]

Early
    on the trial judge expressed her concern that the Crowns closing submissions
    had crossed a line, and she admonished the Crown as follows:

I do think, though, that just as a matter of practice I think
    the Crown has to be particularly careful, youre not an advocate like defence
    counsel. Youre not pulling out all the stops and I think Crown counsel should
    be very, very cognizant that you do have a different role. You are the, you
    know, an officer of the court and an official of the state, and I think to be,
    to be, you know, blunt about it, your, your charge was a little extreme in the
    sense that you were pulling out all the stops, and I think you should be
    careful. Youre Crown counsel, youre not a lawyer for defence counsel, and you
    know, inviting speculation on some issues and things, honestly, I had some
    concerns listening to that.

[20]

With
    respect to the specific issues raised by defence counsel, the trial judge
    agreed that the Crowns personal endorsement of S.L.s credibility was improper,
    and she indicated that she would instruct the jury to disregard the personal
    opinions of counsel. The trial judge outlined some proposed language, including:
    [t]he Crown made some personal opinions about her views of the evidence. We
    shouldnt be providing personal opinions and you should, to the extent that
    personal opinions are offered, you should disregard them. (Ultimately the corrective
    instruction given by the trial judge was more general; it referred to the
    personal opinions of all counsel, not just the Crown.)

[21]

The
    trial judge also identified an issue with the Crowns submissions about how the
    drugs could have ended up in S.L.s system. She was concerned that the Crown
    had invited speculation by suggesting that there could have been drug residue
    on the accuseds hands that could have transferred to S.L.s vagina or rectum.
    She was unsure whether she needed to address this point specifically with the
    jury.

[22]

As
    for defence counsels concern about the Crowns invitation to the jury to
    engage in propensity reasoning, and her use of inflammatory language (described
    by defence counsel as personal commentary), the trial judge observed that the
    defence had also used lots of commentary in their closing arguments, and that
    they had invited the jury to engage in propensity reasoning by suggesting that
    S.L. was a liar. The trial judge indicated that she would caution the jury
    against speculation and propensity reasoning, and in response to a request by the
    appellants counsel that she explain propensity reasoning to the jury, the trial
    judge said that she would use clear language and tell the jury that they were
    not there to decide whether they liked the accused or the complainant or their
    lifestyles.

[23]

The
    trial judge did not provide counsel with a draft of her corrective instruction,
    although, as already noted, she referred to the type of instructions she would
    give.

(4)

The Trial Judges Corrective Instruction

[24]

The
    day after the Crowns closing submissions, and immediately before she delivered
    her charge, the trial judge provided the following instruction to the jury:

Before I begin with my jury charge there are a couple of brief
    comments that I wish to make about the closing submissions that you heard
    yesterday. First of all, you heard some information about some evidence adduced
    at a Barrie court proceeding. That was not evidence that came from [S.L.]
    herself so Im going to ask you to disregard that.
[2]
Secondly, insofar as they talked about firefighters, there was a fire at what
    has been referred to as the Native Womens shelter. There were 17 firefighters
    that arrived but there is no evidence as to when and how many came at any one
    time. I also, and I will be reminding you of this in my charge as well, that to
    the extent that counsel have made comments or personal opinions about the
    evidence that is not something that you need to consider. The only thing that
    you need to consider is after hearing and seeing all of the evidence adduced in
    this proceeding whether you are satisfied that the Crown has proven the case
    against one or both of the accused beyond a reasonable doubt. And you are the
    judges of the facts, the only judges of the facts, and you alone are going to
    be assessing the credibility of witnesses and the reliability of their
    testimony. And lastly, Im also going to remind you, as I will in my charge,
    about the dangers of propensity reasoning. And what I mean by that is youre
    not here to judge whether you like somebodys lifestyle or you like the kind of
    person that they are. What youre here to decide is whether an offence or
    offences were committed on a given day at a certain place, based on the
    evidence, all of the evidence that you saw and heard in this proceeding.

[25]

There
    was no objection to this instruction or to the relevant portions of the trial
    judges charge to the jury.

C.

ISSUES

[26]

The
    sole issue in this appeal is whether there were serious improprieties in the
    Crowns closing submissions that were not effectively addressed by the trial
    judge, such that the appellant had an unfair trial.

[27]

The
    appellant relies on the following:

1.

the invitation that the jury engage in propensity reasoning;

2.

the invitation that the jury decide the case based on sympathy for the
    complainant, by using inflammatory language;

3.

the improper attempts to bolster the complainants credibility, by:

a.

suggesting that the complainant had stood up to cross-examination in
    prior proceedings; and

b.

submitting that the complainant had convinced the sexual assault nurse
    of the truth of her allegations;

4.

the invitation that the jury engage in speculation, including by:

a.

offering unfounded theories for how drugs might have gotten into the
    complainants system; and

b.

claiming that the appellants DNA was present in the samples taken from
    the complainant;

5.

the reference to facts not in evidence, including:

a.

the number of firefighters present during a fire alarm and the actions
    taken by those firefighters;

b.

whether a person familiar with the streets would rat on someone; and

c.

an explanation for why the Crown did not call certain evidence; and

6.

her improper reliance on personal observations not founded in the
    evidence.

[28]

The
    appellant asserts that he received an unfair trial: the cumulative effect of
    the various improprieties in the Crowns closing address and its overall tone were
    prejudicial to him, and the corrective instruction was insufficient to
    alleviate the prejudice.

[29]

The
    respondent accepts that the Crowns closing address was problematic in many
    respects, but argues that the corrective instruction, together with the jury
    charge, adequately responded to the problems. The respondent submits that
    deference is owed to the trial judge who was well-placed to decide on an appropriate
    response. The respondent also relies on the fact that defence counsel did not
    take issue with the corrective instruction or the relevant passages in the charge,
    which suggests that their concerns were adequately addressed.

[30]

With
    respect to several of the alleged improprieties, the respondent relies on the
    fact that the appellant was acquitted on the sexual assault counts. The
    acquittals demonstrate that the jury was not swayed by the trial Crowns
    improper submissions and was able to make an impartial and objective decision
    based on the evidence.

D.

APPLICABLE LEGAL PRINCIPLES

[31]

We
    begin by setting out the legal framework and principles that apply to the
    determination of this appeal.

(1)

The Two-Part Test

[32]

When
    improper comments by Crown counsel are sufficiently prejudicial, a trial judge
    has a duty to intervene, and a failure to do so will constitute an error of
    law:
R. v. T.(A.)
,

2015 ONCA 65, 124 O.R. (3d) 161, at para.
    29, citing
R. v. Romeo
, [1991] 1 S.C.R. 86, at p. 95 and
R. v.
    Michaud
, [1996] 2 S.C.R. 458, at para. 2.

[33]

The
    analysis of a claim on appeal that Crown counsel crossed the line in closing
    submissions to a jury proceeds in two stages: the court must first determine
    whether the Crowns conduct was improper; and if so, whether, considered in
    the context of the trial as a whole, including the evidence adduced and the
    positions advanced, the substance or manner of the Crowns closing address has
    caused a substantial wrong or miscarriage of justice, including by prejudicing
    the accuseds right to a fair trial:
R. v. McGregor
, 2019 ONCA 307,
    145 O.R. (3d) 641, at para. 184.

[34]

With
    respect to the first stage of the analysis  whether the Crowns conduct was
    improper  the limits imposed on Crown counsel are well-established. These
    include:

·

The Crown occupies a special position in the prosecution of
    criminal offences, which excludes any notion of winning or losing and must
    always be characterized by moderation and impartiality:
T.(A.)
,
    at para. 26, citing
R. v. Boucher
, [1955]
    S.C.R. 16, at pp. 21, 24.

·

The Crown should not engage in inflammatory rhetoric, demeaning
    commentary or sarcasm, or legally impermissible submissions that effectively
    undermine a requisite degree of fairness:
R. v. Mallory
,
    2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 340;

·

The Crown must not express personal opinions about either the
    evidence or the veracity of a witness:
R. v. Boudreau
,
    2012 ONCA 830, at para. 16, leave to appeal refused, [2013] S.C.C.A. No. 330;
Boucher
, at p. 26. The Crown must not invite speculation
    by the jury:
McGregor
, at para. 179, or rely
    on anything within their personal experience or observations that is not in the
    evidence:
R. v. Pisani
, [1971] S.C.R. 738, at
    p. 740;

·

The Crown must not invite the jury to use an item of evidence in
    reaching its verdict for a purpose other than that for which it was admitted
    and the law permits:
McGregor
, at para. 180;
    and

·

The Crown must not misstate the evidence or the law:
Boudreau
, at para. 16.

[35]

There
    is no question that the Crown is entitled to make forceful and effective
    closing submissions:
McGregor
, at para. 181. Both Crown and defence
    counsel are entitled to latitude in their closing addresses. However, as
    Deschamps J. wrote for the majority in
R. v. Trochym
, 2007 SCC 6,
    [2007] 1 S.C.R. 239, at para. 79:

Crown counsel are expected to present, fully and diligently,
    all the material facts that have evidentiary value, as well as all the proper
    inferences that may reasonably be drawn from those facts. However, it is not the
    Crowns function to persuade a jury to convict other than by reason:
R. v. Proctor

(1992), 11 C.R.
    (4th) 200 (Man. C.A.), at para. 59.
Rhetorical techniques that distort the
    fact-finding process, and misleading and highly prejudicial statements, have no
    place in a criminal prosecution.
[Emphasis added.]

[36]

With
    respect to the second stage of the analysis  whether a substantial wrong or
    miscarriage of justice has resulted from the Crowns conduct  there is no
    unyielding rule mandating that improper Crown closing submissions require a
    new trial. The test is whether the closing address was unfair in such a way
    that it might have affected the decision of the jury:
R. v. Grover
(1990), 56 C.C.C. (3d) 532 (Ont. C.A.), at p. 537; reversed on appeal, but not
    on this point [1991] 3 S.C.R. 387. See also
Pisani
, at para. 5, where
    the court concluded that improprieties in the Crowns closing address bore so
    directly on the actual issue in the case and were so prejudicial in respect of
    that issue and of the related question of credibility as to deprive the
    appellant of a fair trial.

[37]

While
    each case falls to be decided on its own facts, a non-exhaustive list of
    factors to be considered includes: (i) the seriousness of the improper
    comments; (ii) the context in which the comments were made; (iii) the presence
    or absence of objection by defence counsel; and (iv) any remedial steps taken
    by the trial judge following the address or in the final instructions to the
    jury:
R. v. Taylor
, 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 128,
    per Watt J.A.

(2)

Deference to the Trial Judge

[38]

Substantial
    deference is owed to the trial judges response to alleged improprieties in a
    Crowns closing address. In
McGregor
, at para. 182, Watt J.A.
    explained the rationale for such deference:

None can gainsay that the trial judge is in the best position
    to gauge the impact of closing submissions made by either counsel. The trial
    judge can take the temperature of the trial. As an eye and ear witness to the
    entire proceedings, including both jury addresses. In that position the trial
    judge can assess the apparent significance or otherwise of the impugned
    remarks, and determine whether and to what extent correction or other remedial
    action may be required [citations omitted]. We accord substantial deference to
    the trial judges conclusions on these issues. This is as it should be.

[39]

Of
    course, deference to the trial judge does not eliminate the trial judges duty
    to adequately redress any prejudice that is caused by the Crowns closing
    address. As the Supreme Court held in
R. v. Rose
, [1998] 3 S.C.R. 262,
    at para. 127:

[The] trial judge is best able to assess the impact that
    improper remarks will have on a jury and to determine whether remedial steps
    are necessary. However, where the trial judge fails to redress properly the
    harm caused by a clearly inflammatory, unfair or significantly inaccurate jury
    address, a new trial could well be ordered. It is not only appropriate for a
    trial judge, in the charge to the jury, to undertake to remedy any improper
    address by counsel, but it is the duty of the trial judge to do so when it is required.

[40]

A
    timely and focused correction by a trial judge of deficiencies in a Crowns
    closing address may be sufficient to alleviate any prejudice to an appellants
    fair trial rights:
Boudreau
, at para. 20. Clarity, specificity and,
    forcefulness are the three qualities appellate courts usually look at in
    considering the adequacy of the correction: Robert J. Frater,
Prosecutorial
    Misconduct
, 2nd ed. (Toronto: Carswell 2017), at p. 283. In cases where this
    court has found potentially prejudicial Crown misconduct, but deferred to the
    trial judges remedial approach, the court has described the corrective
    instruction as blunt, strong, strongly-worded, firm and clear or
    pointed, observing that the trial judge explicitly identified the problematic
    areas and told the jury to disregard them: see, e.g.,
Boudreau
, at
    para. 19;
R. v. John
, 2016 ONCA 615, 133 O.R. (3d) 360, at para.
    64;
R. v. Osborne
, 2017 ONCA 129, 134 O.R. (3d) 561, at para. 85;
R.
    v. Howley
, 2021 ONCA 386, at para. 49.

[41]

In
    most cases, what is required is a sharp correction, as soon as possible after
    the words are spoken:
R. v. Gratton
(1985), 18 C.C.C. (3d) 462 (Ont.
    C.A.). In that case the Crowns closing, which was immediately before the lunch
    recess, contained improper submissions. Immediately upon resuming the judge
    gave his charge to the jury in which very early on he spoke about the Crowns
    address, identified the specific comments that were improper and why that was
    the case, and instructed the jury more than once to banish those comments from
    [their] mind. This court accepted that this very clear and forceful
    direction that was given shortly after the Crowns address was sufficient to
    nullify the unfortunate effect of the Crowns address: at p. 471. See also
Howley
,
    at paras. 41-42.

[42]

A
    caution with precise examples is preferable to a general appeal to the jury to
    be dispassionate:
Melanson v. R.
,
    2007 NBCA 94
, 230 C.C.C. (3d) 40, at para. 75. Judges should
    identify clear improprieties to the jury and provide an unambiguous direction
    that they are to be disregarded as irrelevant:
Fiddler v. Chiavetti
, 2010
    ONCA 210,

317 D.L.R. (4th) 385, at para. 18. In
R. v. Copp
,
    2009 NBCA 16, 342 N.B.R. (2d) 323, for example, the trial judge told the jury
    to disregard Crown counsels personal opinions and rhetorical excesses,
    repeating the specific remarks the jury was to disregard, and explaining why.
    The appellate court, in dismissing that ground of appeal, said that there was
    nothing equivocal in the corrective instruction, that it was quite forceful, that
    the jury was provided with examples of the types of inappropriate comments that
    were to be absolutely ignored and that the trial judge characterized Crown
    counsels conduct as getting carried away, inappropriate and excessive: at
    para. 25.

(3)

The Failure to Object at Trial

[43]

Defence
    counsels failure to object or to seek a mistrial is relevant at both stages of
    the analysis. At the first stage, the failure of defence counsel to object may
    indicate that the Crowns conduct was not viewed as improper at the time: see,
    e.g.,
Taylor
, at para. 135. At the second stage, counsels failure to
    object can sometimes indicate that the impact of the comment, in the
    circumstances, was not so prejudicial as to render the trial unfair:
T.(A.)
,
    at para. 41. Counsels failure to object may be particularly relevant where
    defence counsel is experienced, or the decision not to intervene can be
    described as tactical rather than a mere lapse:
T.(A.)
, at para.
    41.

[44]

That
    said, defence counsels failure to object is a factor to consider in assessing
    this ground of appeal but not an unscalable barrier to appellate success:
R.
    v. Manasseri
, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 107.

E.

ANALYSIS

[45]

We
    will now address each of the alleged improprieties in the Crowns closing
    submissions. We have concluded that some of the alleged improprieties are not
    borne out on the record, and in respect of others, we would defer to the trial
    judges approach in handling these issues. As already stated, it is our view
    that the cumulative effect of certain problems with the Crowns closing address
    rendered the appellants trial unfair. We will explain why we have reached this
    decision, and why in our opinion, the trial judges corrective instruction and
    the aspects of the jury charge relied on by the respondent on appeal were
    inadequate to remedy the resulting harm.

(1)

The Invitation to Engage in Propensity Reasoning

[46]

The
    most significant impropriety in the Crowns closing submissions was the express
    and pervasive appeal to propensity reasoning.

[47]

The
    trial Crown repeatedly invited the jury to engage in propensity reasoning based
    on the discreditable conduct of the two accused. In particular, the Crown
    emphasized that the appellant and his co-accused preyed on vulnerable people
    like S.L. when they sold them drugs, and she invited the jury to reason that
    they had preyed on S.L. in committing the alleged offences. These submissions
    also encouraged the jury to despise the appellant and his co-accused and to
    sympathize with the complainant. In order to appreciate the significance of these
    submissions and their centrality in the Crowns overall theme, it is necessary
    to set out what the Crown said in some detail.

[48]

The
    Crown commenced her closing address by arguing that the appellant and his
    co-accused worked together to prey on vulnerable people like the complainant:

Mr. Goulding and Mr. Clyke were well versed in taking advantage
    of people however they could, whenever they could, for their own gain,
    vulnerable people, drug addicts. If it was 4:00 a.m. and Mr. Goulding was the
    only one around with drugs to sell the prices shot up for the addicts. They
    would come banging at times. He explained himself to you how it worked. At
    times Mr. Clyke connected him with the addicts, told him who used what drugs,
    and in return, Mr. Clyke would benefit from his teamwork, if you want to call
    it that. Mr. Goulding would give him drugs for helping him out.

It wasnt a particularly sophisticated kind of teamwork.
    Opportunities arose within the scene weve all heard so much about, and when
    they did Mr. Goulding and Mr. Clyke knew they could work together and both
    benefit from the vulnerabilities of others. Im not suggesting that they were
    partners in drug dealing, I think its clear that Mr. Goulding was the dealer,
    but they had a system that seemed to work out for the benefit of both of them.

[S.L.] was 20 years old in April of 2015. She was young and
    vulnerable, small in stature, had recently moved to Toronto from up north with
    a boyfriend. He was in jail, she was on her own. She had gotten herself into
    some trouble with the law, recently had a baby, she was living in a shelter.
    She had a history of struggling with drugs. She knew Mr. Goulding and Mr. Clyke
    from the drug scene. She didnt know them well, nor did they know her well but
    it wasnt hard for anyone to see that she was a young girl who was in a
    vulnerable place easy to take advantage of for ones own benefit.

On the morning of April 22nd, 2015 when Mr. Goulding and Mr.
    Clyke encountered [S.L.] behind College Park they did exactly that.

[49]

Throughout
    her closing, the Crown returned to the theme that the appellant and Mr.
    Goulding were bad people who took advantage of those who were vulnerable. She
    concluded her submissions in a similar vein, repeating much of what she said
    when she began her submissions, and drawing the link between the appellant and
    his co-accuseds approach to selling drugs to desperate people and their commission
    of the alleged offences:

And by his own accord Derrick Goulding was at the height of his
    addiction and drug use. Behind the College Park building he encountered [S.L.]
    who was sitting, drinking coffee and talking with another male. A male they
    could get rid of pretty easily, leaving [S.L.] powerless. What followed was an
    opportunity for Mr. Goulding and Mr. Clyke, and [P.S.] to take advantage of a
    very young and vulnerable girl who they could do whatever they wanted to in a
    nearby abandoned building that Mr. Goulding was so familiar with.

He went there often and there was [S.L.] meters away from the
    door. It didnt take much to put the plan together. Nothing about this is
    sophisticated. Not much about how Mr. Goulding and Mr. Clyke operated together
    was sophisticated. Theyd walk around looking for people on the streets to sell
    drugs to. If, by chance, they met, they ran into an addict, theyd sell to the
    addict. That addict might be begging for drugs. The price might shoot up, and
    it was by chance that they ran into [S.L.] that morning and they werent going
    to let that opportunity pass without benefiting from it, taking advantage of
    her, getting what they wanted from someone in a vulnerable position.

Once Derrick Goulding, Shawn Clyke and [P.S.] got her into that
    building they could do whatever they wanted to, to her, and they did.

[50]

The
    respondent acknowledges that the propensity reasoning invoked by the trial
    Crown is one of the most problematic aspects of her closing submissions.
    However, the respondent contends that the invitation to engage in propensity
    reasoning applied mainly to Mr. Goulding, because there was more evidence of
    his involvement in dealing drugs, and that it did not prejudice the appellants
    fair trial rights.

[51]

We
    disagree. The thrust of the Crowns submissions was to paint the two accused
    with the same brush: they worked together to prey on vulnerable people. The
    fact that there was more evidence about Mr. Gouldings involvement in drug
    dealing does not reduce the impact of the Crowns invitation to engage in propensity
    reasoning with respect to both accused.

[52]

The
    respondents main submission is that the trial judges corrective instruction,
    together with her jury charge, adequately addressed the potential harm arising
    from the Crowns appeal to propensity reasoning. The respondent relies on the
    part of the corrective instruction where the trial judge said:

And lastly, Im also going to remind you, as I will in my
    charge, about the dangers of propensity reasoning. And what I mean by that is
    youre not here to judge whether you like somebodys lifestyle or you like the
    kind of person that they are. What youre here to decide is whether an offence
    or offences were committed on a given day at a certain place, based on the
    evidence, all of the evidence that you saw and heard in this proceeding.

[53]

The
    respondent also relies on the part of the charge dealing with how the jury
    could use evidence of Mr. Gouldings criminal record. The trial judge stated:

MR. GOULDINGS CRIMINAL RECORD: Mr. Goulding has a criminal
    record.
You may not use the fact
    that an accused committed offences in the past, or the number or nature of
the
offences committed, or when
    those offences were committed, as evidence that he committed the offences
    charged or, that he is the sort of person who would commit the offences
    charged.

She went on to explain, using the standard jury charge
    wording, the permitted and prohibited uses of Mr. Gouldings criminal record in
    the jurys assessment of his evidence. She concluded by saying:

You must not use the fact, number or nature of the prior
    convictions to decide, or help you decide, that an accused is the sort of
    person who would
commit
the offences charged (or, is a
    person of bad character and thus likely to have committed the offences
    charged).

[54]

While
    acknowledging that the corrective instruction about propensity reasoning could
    have been stronger and more complete, the respondent submits that it was
    nonetheless sufficient, considering that the evidence about the accuseds involvement
    in dealing drugs was relevant as part of the narrative. The respondent
    underlines that the Crown made these comments in the context of a hard-fought
    proceeding. The respondent submits that the trial Crowns invitation to
    propensity reasoning did not render the appellants trial unfair, given the
    relevance of the evidence, the lesser impact of the evidence on the appellant, the
    corrective instruction, and the passage above from the charge to the jury
    (which, although directed to Mr. Gouldings criminal record, reminded the jury
    to avoid propensity reasoning).

[55]

We
    agree with the appellant that the Crowns direct invitation to the jury to
    engage in propensity reasoning was highly improper. The potential prejudice
    arising from evidence of an accuseds extrinsic misconduct is well-established.
    There is moral prejudice  the risk that the jury may reason that the accused
    is a bad person who is likely to have committed the offence with which he is
    charged. There is also a risk of reasoning prejudice, which diverts the jury
    from its task. An example of reasoning prejudice arises where the evidence
    awakens in the jury sentiments of revulsion and condemnation that deflect them
    from the rational, dispassionate analysis upon which the criminal process
    should rest:
R. v. C. (Z.W.)
, 2021 ONCA 116, 155 O.R. (3d) 129, at
    paras. 101-103, citing Martin J. (dissenting in part, but not on this point) in
R. v. Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 176, 180.

[56]

The
    trial Crowns submissions in this case gave rise to both moral prejudice and
    reasoning prejudice. She invited the jury to conclude that the accused were
    bad, predatory people who, therefore, were likely to have committed the
    offences charged, and she invited the jury to detest the accused, potentially diverting
    the jurors from their task.

[57]

Evidence
    of the accuseds drug dealing was admissible and relevant as part of the
    narrative (at the very least it provided the necessary context for Mr. Gouldings
    testimony). That said, even when evidence of prior misconduct is admissible as
    part of the narrative, it is incumbent on the trial judge to clearly instruct
    the jury on exactly how the evidence is to be used:
C. (Z.W.)
, at
    para. 132. A trial judges instruction should identify the evidence in
    question, and explain the permitted and prohibited uses of the evidence:
C.
    (Z.W.)
, at para. 109.

[58]

While
    the admission of the drug-dealing evidence without a specific instruction about
    its use may not have amounted to reversible error in this case, particularly given
    that there was no objection to the charge on this basis, the problem here is
    the
Crowns
use of the evidence.

[59]

The
    Crowns remarks were serious. They were repeated and explicit. The invitation
    to propensity reasoning was the main theme of the Crowns submissions. The
    Crown began her closing on this note, and she ended it the same way. It was
    reflected in her treatment of the evidence. Mr. Goulding and the appellant were
    predatory drug dealers. S.L. was a vulnerable young woman. S.L.s friend, A.V.,
    was characterized in contrast to the appellant and Mr. Goulding, as a
    different kind of drug dealer who protected her from unscrupulous people in
    the drug scene. The invitation to propensity reasoning was not a mere passing
    reference. It was the organizing principle for the Crowns theory of the case.

[60]

Unfortunately,
    the trial judges corrective instruction did not adequately respond to the
    Crowns improper appeal to propensity reasoning.

[61]

First,
    the instruction was insufficiently specific or focused: it did not identify for
    the jury that it related to what the Crown had said in her closing submissions,
    nor did it include an example of prohibited propensity reasoning. The trial
    judge ought to have specifically identified the improper invitation to
    propensity reasoning and then instructed the jury about the permissible and
    prohibited uses of the evidence about the accuseds drug-selling behaviour.

[62]

Second,
    although the trial judge addressed in general terms the moral prejudice
    aspect of propensity reasoning

instructing the
    jury not to judge whether you like somebodys lifestyle or you like the kind
    of person they are  she did not address the key problem, which was the Crowns
    urging the jury to reason that because the accused were predatory people who
    targeted vulnerable individuals, they had committed the offences. The corrective
    instruction did not explain to the jury that they were prohibited from
    reasoning in this way, and did not instruct the jurors to disregard the Crowns
    invitation to do so.

[63]

The
    absence of an effective corrective instruction was compounded by passages in
    the jury charge. In summarizing the position of Crown counsel, the trial judge
    repeated the main theme of the Crowns closing: that the accused were
    opportunists who took advantage of the vulnerable complainant, just as they
    took advantage of vulnerable drug users. The summary of the Crowns position
    reinforced the overarching theme of the Crowns closing, which was based on
    prohibited propensity reasoning.

[64]

Nor
    did the passage from the charge relied on by the respondent bring home any
    corrective message with respect to propensity reasoning in relation to the
    appellant. In fact, it may have inadvertently compounded the problem. Because the
    only reference in the charge to propensity reasoning was directed at Mr. Gouldings
    criminal record, it is quite possible that the jury would have understood that
    the earlier instruction, that was stated in general terms, related to the same
    issue. Instead of the corrective instruction and the charge working together to
    resolve the issues in the Crowns closing, this would have left the impugned
    passages in the Crowns closing completely unaddressed.

[65]

This case is similar in some respects to two other
    decisions from our court, where the Crowns theory of the case, as put to the
    jury, turned on impermissible reasoning. In

R. v. Precup
,
2013
    ONCA 411, 116 O.R. (3d) 22, this court ordered a new trial after Crown counsel
    improperly referred to hearsay notations in the appellants medical records for
    the truth of their contents, inviting the jury to use them as evidence of the
    appellants disposition for violence, and hence as indicative of his guilt. The
    Crown suggested that the appellant was an angry and volatile person, and
    therefore more likely to have committed the offences charged. The Crowns
    statements were tantamount to encouraging the jury to engage in impermissible
    propensity reasoning. They cried out for an explicit, remedial instruction or,
    alternatively, a clear instruction on the limited use of [the] evidence about
    the Prior Incidents: at para. 65. The absence of such instructions required a
    new trial.

[66]

Similarly,
    in
T.(A.)
, the trial Crowns theory of the case turned on
    impermissible reasoning: that the appellant was a religious zealot and
    therefore more likely to have committed the offences charged: at para. 40. The
    appeal was allowed and a new trial was ordered notwithstanding the failure by
    defence counsel to object to Crown counsels comments. This court concluded
    that the remarks were so prejudicial that the trial judge had a duty to remedy
    the potential trial unfairness: at para. 42.

[67]

Here,
    the impermissible reasoning was that the accused were predatory people, in the
    habit of taking advantage of vulnerable people however they could, and
    therefore more likely to have committed the offences charged. This
    impermissible reasoning flowed throughout the Crowns closing submissions and
    was inadvertently reinforced by the trial judge.

[68]

Unlike
    in
T.(A.),
the trial judge gave the jury some guidance on how to deal
    with this evidence, however the corrective instruction did not address the
    impermissible reasoning advanced by the Crown. As in
Precup
, we do not
    consider defence counsels failure to renew her objection following the corrective
    instruction as determinative. The appellants counsel forcefully objected to
    this aspect of the Crowns closing, referring to both aspects of prejudice that
    would follow the appeal to propensity reasoning. She specifically asked the
    trial judge to explain propensity reasoning to the jury. There was no strategic
    benefit to the defence for not renewing the objection, for example, by drawing further
    attention to the bad character evidence. The evidence that was the subject of
    the invitation to propensity reasoning  drug dealing on the part of both
    accused  was front and centre in both the Crown and defence cases. Specific
    instructions about the proper and improper uses of this evidence would not have
    harmed, and could only have benefited, the defence.

[69]

It
    is unnecessary to decide whether, standing alone, the Crowns appeal to
    propensity reasoning would warrant a new trial given the cumulative effect of
    the improprieties in the Crowns closing submissions, discussed further below.

(2)

Crown Counsels Inflammatory Language

[70]

The
    appellant submits that the trial Crown used inflammatory language to describe
    the assault and the effect it had on the complainant. She described the assault
    as a horrendous, brutal attack that no girl, no woman, no mother, no sister,
    no daughter, no friend should ever have to experience in their lives. She
    suggested that the complainants demeanour while testifying was consistent
    with someone who is reliving a horrible, degrading, violent, traumatizing
    event. One that [she] may never forget and perhaps never move beyond.

[71]

The
    appellant also points to a passage in the trial Crowns closing where she
    expressed her personal view that the complainant had been traumatized:

[S.L.] was injured and she was traumatized.

Now, Im not giving medical evidence when I say this, and Im
    not an expert in trauma, or anything medically related, but Im a person with
    common sense, I think, and [S.L.] is still pretty traumatized, not in a medical
    diagnosis kind of way because again I cant tell you that. But as a person with
    various life experiences, the same way all 11 of you have, that youll bring to
    the table in your discussions, Im just telling you how I saw it, and how I
    think it may have appeared to some of you.

[72]

The
    appellant submits that in these passages, the Crown attempted to pull at the
    heartstrings of the jurors and invite them to sympathize with S.L. as they
    would with their mother, daughter or sister. There was no evidence that S.L.
    was traumatized or might never forget or move on. It was improper for Crown
    counsel to present her own musings about S.L.s mental state to the jury in order
    to evoke their sympathy.

[73]

The
    respondent acknowledges that the inflammatory language used by the trial Crown
    amounted to rhetorical excess. However, the respondent contends that such
    language was directed to the sexual offences, and that the acquittal of the
    appellant and his co-accused for such offences indicates that the jury was not
    swayed by it. Further, the respondent points to the detailed instructions in
    the jury charge on how to assess credibility. In outlining the factors relevant
    to assessing credibility, the trial judge told the jurors to consider the
    evidence and make [their] decision without sympathy, prejudice or fear. She
    advised the jury not to be influenced by public opinion, and to conduct an
    impartial assessment of the evidence.

[74]

In
    our view, the Crown improperly and directly sought to inflame the passions of
    the jury, appealing to their emotions, by inviting sympathy for S.L. and
    revulsion toward the accused. The inflammatory rhetoric used by the trial Crown
    worked together with her invitation to the jury to engage in propensity
    reasoning.

[75]

As
    in the case of the invitation to propensity reasoning, and for the same
    reasons, the Crowns use of inflammatory language should have been the subject
    of an explicit and unequivocal corrective instruction. The standard instruction
    to the jury not to decide the case based on sympathy or prejudice was
    insufficient, given that both sympathy and prejudice were the main themes in
    the Crowns closing.

[76]

It
    appears from the transcript of her discussions with counsel, that the trial
    judge may have decided not to provide a corrective instruction on this point
    because defence counsel had also resorted to what counsel described as commentary.
    With respect, even if defence counsel went too far in their submissions about
    the complainant  and we note that the Crown did not object to the defence
    closing on this basis  an explicit corrective instruction was nevertheless
    required. An inflammatory closing is not justified even where preceded by
    defence counsels own excesses. Ethical duties do not recede in proportion to
    the improprieties of opposing counsel: David Layton and Hon. Michel Proulx,
Ethics
    and Criminal Law
, 2nd ed. (Toronto: Irwin Law, 2015), at pp. 648-649. Emotions
    tend to run high in jury trials dealing with serious crimes Crown counsel is
    expected to behave in a dispassionate and impartial manner to reduce the
    emotional level and foster a rational process:
R. v. R.B.B.
, 2001
    BCCA 14, 152 C.C.C. (3d) 437, at para. 15.

[77]

Finally,
    we do not accept the respondents argument that the Crowns inflammatory
    remarks related only to the sexual assault charges. The Crown was referring to
    the entire attack on the complainant, not just to the alleged sexual assault.
    In our view, it is not possible to parse the Crowns comments in the manner
    suggested by the respondent.

(3)

Comments Designed to Bolster the Complainants Credibility

[78]

The
    appellant refers to two passages in the Crowns closing submissions where she
    is alleged to have made improper comments that were designed to bolster the
    complainants credibility.

[79]

First,
    the appellant contends that the Crown attempted to enhance S.L.s credibility
    by improperly referring to the preliminary inquiry in this matter and the
    preliminary inquiry for the third co-accused, and suggesting that S.L.s
    account had stood up to cross-examination in such prior proceedings. It is
    unnecessary to address this argument. In the context of this trial, the
    references to the prior proceedings were not problematic. And, in our view, the
    passage relied on by the appellant would not reasonably bear the interpretation
    advanced by the appellant.

[80]

Second,
    the appellant submits that the trial Crown improperly suggested that S.L. was
    credible because she underwent a full examination and convinced an expert
    (the sexual assault nurse), when it was not the nurses role to challenge S.L.s
    account, but only to gather information. In this regard, the Crown stated:

In [the sexual assault nurses] expert opinion, [S.L.s]
    version of what happened to her was consistent with the results of her
    examination and assessment. This is evidence I hope you take to the forefront
    of your discussions. No one challenged [the nurses] expertise. Both the Crown
    and defence agreed she was an expert in the area to what she testified.

If [S.L.] wanted to make up this whole story and falsely
    implicate Mr. Goulding and Mr. Clyke, she successfully managed to convince a
    qualified expert who examined her that same day, that her made up version was
    consistent with [the nurses] assessment and [the nurses] opinion.

If you believe that shes lying thats rather impressing,
    impressive, for lying [S.L.] that the medical findings of her sexual assault
    examination are consistent with her lies.

[81]

The
    appellant also notes that the Crown personally endorsed the complainants
    credibility. The Crown concluded her closing address with such an endorsement:

But if in fact, [S.L.] was making all this up and managed to
    put all of the other supporting pieces of evidence in place, shes a young girl
    capable of accomplishing amazing things, and I wish she was. I wish I believed
    that she made this all up and [S.L.] would one day conquer the world.

[82]

The
    respondent acknowledges that the Crowns reliance on the sexual assault nurse
    to bolster S.L.s credibility, and her personal endorsement of S.L.s
    credibility, were improper. However, the respondent contends that certain
    aspects of the charge effectively prevented the jury from relying on these submissions
    in their assessment of S.L.s evidence.

[83]

If
    these had been the only improper submissions in the Crowns closing, we might
    have deferred to the trial judges decision not to address them specifically. What
    she said in the jury charge went some way to remedying the potential prejudice.
    The trial judge accurately summarized the evidence of the sexual assault nurse,
    including that the presence or absence of injuries was not determinative of
    whether an assault occurred. She reminded the jury that the opinions of counsel
    were not evidence. And she instructed the jury that it was their task alone to
    assess the credibility of witnesses, providing the usual detailed instruction
    to the jury on how to go about this task. The jury was thus equipped with many of
    the necessary tools to decide this issue without relying on the Crowns
    improper attempts to bolster the complainants credibility. In our view
    however, when these problems are considered together with the trial Crowns invitation
    to engage in propensity reasoning, the use of inflammatory language, and the
    other problematic issues related to S.L.s credibility discussed below, the
    absence of a specific correction resulted in an unfair trial.

[84]

The
    respondent also suggests that the trial Crowns submission about the sexual
    assault nurse related only to the sexual assault offences, and since the jury
    found the accused not guilty of sexual assault, it had no impact on their
    reasoning. We do not accept this argument. The injuries observed by the sexual
    assault nurse were not limited to injuries sustained in the alleged sexual
    assault. Moreover, in making her submissions about this evidence, and in
    encouraging the jurys use of it to enhance S.L.s credibility, the Crown did
    not distinguish between the alleged sexual assault and the other aspects of the
    attack.

(4)

Invitations to Speculation

[85]

The
    appellant submits that the trial Crown improperly invited the jury to engage in
    speculation in two ways: first, in discussing ways that drugs might have gotten
    into S.L.s system by including a theory that was not supported by the
    evidence, and second, by claiming that the appellants DNA was present in the
    DNA samples, when the evidence did not support this conclusion.

(a)

Speculation About Why S.L. Had Drugs in
Her System

[86]

First,
    the appellant contends that the trial Crown relied on baseless theories to
    explain away the evidence that S.L.s blood tested positive for
    methamphetamines. The evidence of drugs in S.L.s system was important because
    it was potentially inconsistent with her evidence that she had not been using
    drugs in the months leading up to the events in question. The appellant submits
    that this was an improper attempt by the Crown to rehabilitate S.L.s
    credibility.

[87]

The
    respondent acknowledges that, given the limited details in S.L.s evidence
    about the sexual assault, the trial Crown likely crossed a line when she
    submitted that the assailants [p]resumably were all touching every part of
    [S.L.s] naked body, and in implicitly relying on semen as a possible method
    of transmission, when the expert evidence did not support this theory. However,
    the respondent submits that this did not cause any unfairness because this
    evidence related to the sexual assault allegation. The only way the jury could
    have accepted the Crowns submissions on how the drugs came to be in S.L.s
    system was if they also accepted that the sexual assault occurred. Moreover, in
    her charge the trial judge correctly summarized the evidence on how
    methamphetamine can enter a persons system, as well as the defence position that
    the Crowns suggestion that crystal meth may have passed through the vaginal or
    anal cavity was at odds with her testimony that she only saw the three males
    smoking the meth, not stuffing the pipe or snorting the meth. Finally, the
    trial judge instructed the jury to decide the facts based on the evidence and
    cautioned them against speculation.

[88]

We
    agree with the respondents concession that the Crowns submissions stretched
    the evidence about drug transfer beyond its limits. The trial judge appreciated
    the problematic nature of the Crowns submissions. Recall that this was an
    issue that she raised on her own initiative after the Crowns closing, and she
    said she would consider it. In the end, she decided not to give a corrective
    instruction on this issue. Instead, the trial judge correctly summarized the
    evidence, and defence counsels position on it, in her charge to the jury. She
    also correctly instructed the jury on the principles for dealing with expert
    evidence.

[89]

In
    our view a more specific caution would have been preferable, because the
    Crowns implicit submission that the jury could find that methamphetamine was
    transferred to S.L. through semen was particularly improper  there was simply
    no evidence to support such a finding. The trial judge could have pointed to
    this example in her caution against speculation. As with the Crowns
    submissions about the sexual assault nurse and her personal endorsement of the
    complainants credibility, if this had been the only error in the Crowns
    submissions, we might well have deferred to the trial judges decision not to
    give a specific correction. However, given that it was accompanied by multiple problematic
    submissions from the Crown relating to the important issue of S.L.s
    credibility, it ought to have been addressed.

[90]

Nor
    do we accept the respondents argument that no prejudice resulted from the
    Crowns remarks. As noted above, the evidence was significant to the jurys
    assessment of the complainants credibility. It was also potentially consistent
    with Mr. Gouldings evidence that she had used drugs with him that day. While
    this evidence may be less significant given the acquittals for the sexual
    offences, in a case that turned to a great extent on credibility, we cannot
    know the role it might have played in finding the appellant guilty on the
    assault charges.

(b)

Speculation About the
    Appellant as the Third DNA Contributor

[91]

The
    appellant also submits that it was wrong for the trial Crown to submit to the
    jury that the third DNA contributor was the appellant. While it was open to the
    Crown to say that the appellant was one of the parties involved in the
    incident, the Crown crossed the line by relating him to the DNA evidence when
    the expert testified that the third sample was unsuitable for comparison and
    could not be connected to the appellant. Although the DNA evidence arguably
    related only to the sexual offences, the appellant submits that the Crowns
    submission on this point could have been relied on by the jury to identify the
    appellant as one of the complainants assailants.

[92]

It
    is unnecessary to address this submission in great detail. We accept that the
    trial Crown may have gone too far in submitting that the appellant was the
    third DNA contributor, given that the forensic analyst testified that the
    sample was not suitable for comparison. That said, in our view the jury would
    have understood the limits of the DNA evidence. Immediately before stating her
    position that the third sample came from the appellant, the Crown reminded the
    jury that the sample was unsuitable for comparison. The trial judge correctly
    summarized the experts evidence, as did defence counsel. She also accurately
    summarized the appellants position that the DNA evidence did not assist in
    identifying S.L.s assailants. In the circumstances, despite the fact that the
    Crowns submissions may have crossed the line in suggesting that the third
    sample was of the appellants DNA, the jury would have understood that the DNA
    evidence did not identify the appellant.

[93]

In
    our view, given the repeated, correct summaries of the DNA evidence, the trial
    judge did not err in failing to correct this aspect of the Crowns submissions.

(5)

References to Facts Not in Evidence

[94]

The
    appellant submits that the trial Crown wrongly referred to certain facts that
    were not in evidence: first, in giving her own opinion about what the scene
    looked like at the time the fire alarm went off, and referring to actions taken
    by the firefighters present during the fire alarm; second, in inviting the jury
    to conclude that Mr. Goulding had not implicated the appellant because this
    would lead to consequences for him on the streets; and third, in providing an
    explanation for the Crowns failure to call S.L.s grandmother as a witness.

[95]

While
    some of these remarks were improper, in our view they were either adequately
    corrected by the trial judge or relatively insignificant. To the extent the
    trial judge declined to correct the remarks we defer to her decision.

[96]

First,
    while the Crowns submission about the firefighters tended to stretch the
    available evidence and could have been misleading, the trial judges corrective
    instruction expressly referred to the fact that there had been submissions
    about this evidence. She correctly summarized the evidence about the
    firefighters, including its limits. Nothing further was required to address
    this point.

[97]

Second,
    the Crown arguably crossed the line in submitting that someone familiar with
    the streets would not rat on someone else. There does not appear to be any
    evidentiary support for this submission. However, this was a brief comment,
    made in passing. It was not the focus of the Crowns submissions. We defer to
    the trial judges decision not to correct this remark. A correction would only
    have drawn the jurys attention to what was otherwise a minor point in the
    Crowns lengthy closing.

[98]

Finally,
    whether or not the Crown was entitled to provide an explanation for not calling
    S.L.s grandmother as a witness, this comment would not have occasioned any
    significant prejudice. As the respondent pointed out, the Crowns comment that
    she felt the grandmothers evidence was unnecessary was made in response to the
    suggestion by counsel for the appellant that the Crown ought to have called the
    grandmother to corroborate the complainants account of where she was the night
    before. In any event, the jury was told that counsels submissions are not
    evidence, and they must decide the case based only on the evidence, and, in the
    context of this case, even if the Crowns explanation was inappropriate, it
    could not have occasioned much prejudice given the insignificance of any
    evidence the grandmother might have given.

(6)

Reliance on Personal Observations Not in Evidence

[99]

The
    appellant submits that the trial Crown referred to personal observations not in
    evidence, including that the Crown had dropped bricks on the floor and had not
    observed scuff marks. This comment was in response to the reliance by the
    defence on the absence of any indicia of a struggle in the shed  including
    scuff marks made by bricks  to suggest that the incident could not have
    transpired as described by S.L. The appellant concedes that this was a
    relatively minor issue.

[100]

In our view, while the
    Crowns comment was likely improper, it was also trivial. Given the trial
    judges corrective instruction and charge, the jury would have understood that
    counsels submissions were not evidence, and that they were to decide the case
    based only on the evidence. This was a passing remark in the context of lengthy
    closing submissions, and it was within the trial judges discretion to decide
    not to correct this explicitly.

F.

CONCLUSION ON THE CUMULATIVE EFFECT OF THE CROWNS IMPROPER SUBMISSIONS

[101]

In our view, the trial
    Crown made improper closing submissions that prejudiced the appellants right
    to a fair trial. The main problems were the Crowns repeated invitations to the
    jury to engage in prohibited propensity reasoning and her use of inflammatory
    language inviting the jury to detest the accused and to sympathize with the
    complainant.

[102]

As we have explained,
    in her closing submissions the Crown also attempted to bolster the
    complainants credibility in multiple improper ways. As already indicated, had
    these improper attempts to bolster the complainants credibility been the only improprieties
    in the Crowns submissions, we might have deferred to the trial judges
    decision not to give an explicit correction, and instead to rely on the more
    general language in the corrective instruction and jury charge to equip the
    jury to deal with these issues.

[103]

In determining whether
    trial unfairness resulted from the Crowns improprieties in her closing
    address, the strength of the Crowns case is a relevant consideration. The
    Crown did not have an overwhelming case. There were credibility and reliability
    concerns with the complainants evidence, much as there were with the evidence
    of Mr. Goulding. In this context, it was important that Crown counsel approach
    the evidence fairly and dispassionately. She did not do so; instead, she
    attempted to prop up her case by inviting the jury to feel revulsion for the
    accused and compassion for the complainant, and by bolstering the complainants
    credibility in improper ways. Given the challenges in the Crowns case, a more
    explicit corrective instruction was required to address the resulting prejudice
    to the appellants right to a fair trial.

[104]

When, as here, Crown
    counsel has overstepped the bounds of proper submissions to the extent that an
    accuseds fair trial rights are jeopardized, there is typically no reason for
    the trial judge to avoid pointing out specifically what is being corrected, and
    there is every reason to do so. In this case the most egregious remarks were
    deliberate and part of the Crowns overriding theme. It was appropriate and
    indeed necessary for the trial judge to single out the Crown in her remarks. The
    failure to do so risked a corrective instruction that was ineffective.

[105]

Depending on the
    nature of the impropriety, there may be a concern about repeating references
    that are prejudicial to the accused. This is one reason why it can be
    beneficial for a trial judge not only to discuss the appropriate response with
    counsel (as the trial judge did in this case), but also to provide them with proposed
    wording for their consideration and input: see, e.g.,
Howley
, at para.
    41;
R. v. Herron
, 2019 SKCA 138, at para. 89;
R. v. Badgerow
,
    2019 ONCA 374, at paras. 44-47;
R. v. Gager
, 2020 ONCA 274, at para.
    57. Crown counsel can play an important role in ensuring that an effective and appropriate
    corrective instruction has been given. See, e.g.,
Melanson
, at para. 79,
    and
Howley
, at paras. 40-42.

[106]

While Crown counsel at
    trial, for the most part, did not accept that she had done anything wrong, the
    respondent on appeal acknowledges that there were several significant
    improprieties in the trial Crowns closing submissions. The resulting prejudice
    to the appellants fair trial rights was not effectively remedied. The
    corrective instruction did not bring home to the jury what was specifically
    said that they needed to disregard. It would not have been clear: (1) what
    parts of the Crowns closing submissions were problematic; and (2) that the
    jury was to disregard entirely certain parts of the Crowns submissions.

[107]

As already noted, the
    failure of defence counsel, who protested vigorously after the Crowns closing
    address, to object to the corrective instruction and the relevant portions of
    the jury charge, is not determinative. There was no apparent tactical reason
    for the defence failure to object, nor can we take the failure to object as an
    indication that the impact of the comment, in the circumstances, was not so
    prejudicial as to render the trial unfair (
T.(A.)
, at para. 41). Where,
    as here, the main problem with the Crowns closing was her repeated invitation
    to the jury to engage in propensity reasoning, and the invitation to propensity
    reasoning formed the central theme of the Crowns closing submissions, there
    was a real danger that the jury would have been misled and would not have
    properly assessed the evidence.

G.

DISPOSITION

[108]

For these reasons we
    allow the appeal, quash the appellants convictions, and remit the matter to
    the Superior Court of Justice for a new trial on the charges of assault and
    assault causing bodily harm.

Released: November 16, 2021 P.R.

Paul
    Rouleau J.A.

K.
    van Rensburg J.A.

Grant Huscroft J.A.





[1]

There
    were other objections to the trial Crowns closing submissions that are not
    listed here, as they were pertinent only to Mr. Goulding.



[2]
The
    trial judges reference to the Barrie proceedings was not directed at the
    Crowns closing submissions. Rather, it was intended to correct a suggestion
    made by defence counsel about unrelated family law proceedings.


