



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. 486.5(1), (2), (2.1), (3), (4),
    (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made under
    section 486.4, on application of the prosecutor in respect of a victim or a
    witness, or on application of a victim or a witness, a judge or justice may
    make an order directing that any information that could identify the victim or
    witness shall not be published in any document or broadcast or transmitted in
    any way if the judge or justice is of the opinion that the order is in the
    interest of the proper administration of justice.

(2)     On application of the prosecutor
    in respect of a justice system participant who is involved in proceedings in
    respect of an offence referred to in subsection (2.1), or on application of
    such a justice system participant, a judge or justice may make an order
    directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for the purposes of
    subsection (2) are

(a) an offence under section 423.1,
    467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the
    benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1)
    or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
;
    or

(d) an offence under subsection 21(1)
    or section 23 of the
Security of Information Act
that is committed in
    relation to an offence referred to in paragraph (c).

(3)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding
    judge or justice or, if the judge or justice has not been determined, to a
    judge of a superior court of criminal jurisdiction in the judicial district
    where the proceedings will take place; and

(b) provide notice of the application
    to the prosecutor, the accused and any other person affected by the order that
    the judge or justice specifies.

(5)     An applicant for an order shall
    set out the grounds on which the applicant relies to establish that the order
    is necessary for the proper administration of justice.

(6)     The judge or justice may hold a
    hearing to determine whether an order should be made, and the hearing may be in
    private.

(7)     In determining whether to make
    an order, the judge or justice shall consider

(a) the right to a fair and public
    hearing;

(b) whether there is a real and
    substantial risk that the victim, witness or justice system participant would
    suffer harm if their identity were disclosed;

(c) whether the victim, witness or
    justice system participant needs the order for their security or to protect
    them from intimidation or retaliation;

(d) societys interest in encouraging
    the reporting of offences and the participation of victims, witnesses and
    justice system participants in the criminal justice process;

(e) whether effective alternatives are
    available to protect the identity of the victim, witness or justice system
    participant;

(f) the salutary and deleterious
    effects of the proposed order;

(g) the impact of the proposed order on
    the freedom of expression of those affected by it; and

(h) any other factor that the judge or
    justice considers relevant.

(8)     An order may be subject to any
    conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information
    given or submissions made at a hearing under subsection (6); or

(c) any other information that could
    identify the person to whom the application relates as a victim, witness or
    justice system participant in the proceedings.
2005,
    c. 32, s. 15; 2015, c. 13, s. 19

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. Whalen, 2021 ONCA 397

DATE: 20210608

DOCKET: C64938

Doherty, Trotter and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Roseanne Whalen

Appellant

Peter Copeland, for the appellant

Tracy Kozlowski, for the respondent

Heard: May 31, 2021 by video conference

On appeal from the conviction on a charge of second
    degree murder on April 8, 2014, after a trial by a jury presided over by
    Justice Robert B. Reid of the Superior Court of Justice.

REASONS FOR DECISION

[1]

Two-year-old Marissa, the appellants daughter, was repeatedly assaulted
    over many days, and perhaps weeks, by Rainbow Hill, the appellants girlfriend.
    Eventually, Rainbow killed Marissa. She subsequently pled guilty to second
    degree murder.

[2]

Although there was no evidence the appellant physically assaulted
    Marissa, she was charged with second degree murder. The Crown alleged the
    appellant caused Marissas death by failing in her duty as a parent to protect Marissa
    from the physical abuse repeatedly perpetrated against her by Rainbow. The
    Crown alleged the appellant did so with the state of mind required for murder
    under s. 229(a)(ii) of the
Criminal Code
.

[3]

The jury convicted. The trial judge imposed a sentence of life
    imprisonment without eligibility for parole for 15 years. The appellant appeals
    conviction only.

[4]

After hearing oral argument, the court dismissed the appeal with reasons
    to follow. These are the reasons.

(1)

The Crowns Closing
    Argument

[5]

Counsel for the appellant submitted, that because of the evidence heard
    by the jury, there was a real risk the jury could allow their empathy for the very
    young victim, and their disgust with the conduct of the appellant and Rainbow,
    to  overwhelm their obligation to objectively and rationally assess the evidence
    in accordance with the legal principles provided by the trial judge. Counsel contends
    some of the arguments made by the Crown and the language used by the Crown in
    his closing jury address substantially increased the risk of a verdict based on
    an emotional response to the evidence. Counsel argues that the Crowns closing
    address resulted in an unfair trial and a miscarriage of justice.

[6]

At trial, the defence sought to depict the appellant as a person of
    limited intelligence who was manipulated, victimized and abused by Rainbow. In
    his closing address, Crown counsel made a vigorous and repeated attack on the
    viability of that defence.

[7]

In the main, Crown counsels submissions remained within the boundaries
    of proper advocacy. For example, the Crowns argument that the evidence showed
    the appellant to be a cunning and streetwise liar was in direct response to the
    portrayal of the appellant presented by the defence. The Crowns
    characterization found support in the evidence. Whether the Crowns argument
    would ultimately carry the day, was for the jury to decide.

[8]

Crown counsel did use strong language at times in his closing argument. In
    many circumstances, that language accurately reflected the state of the evidence.
    Some of Crown counsels comments, however, were arguably overly dramatic, and
    potentially inflammatory. The Crown also misstated the evidence of one witness,
    although the evidence was far from central to the case.

[9]

We are satisfied that any shortcomings in Crown counsels closing did
    not put the fairness of this trial at risk. There was no objection to Crown
    counsels closing and no request that the trial judge address in his
    instructions to the jury any of the remarks made by Crown counsel.

(2)

The Instruction on
    the
Mens Rea
Required for Murder

[10]

The
    Crown relied on s. 229(a)(ii). The
mens rea
of murder under that
    section has three components:

·

the appellant must have intended to cause bodily harm to Marissa;

·

the appellant must have known the bodily harm was likely to cause
    Marissas death; and

·

the appellant must have been reckless as to whether death ensued.

[11]

Counsel
    for the appellant argues that Crown counsel wrongly described the
mens rea
component of s. 229(a)(ii) in his closing argument, and that the trial judges
    instructions did not adequately correct the misapprehension created by Crown
    counsels closing.

[12]

In
    his closing argument, Crown counsel referred to the necessary intent required
    under s. 229(a)(ii) as recklessness. He then went on to argue that the
    appellant had the necessary intent for several reasons. Counsel submitted, the
    appellant knew Rainbow presented a clear and present danger to Marissa. Crown
    counsel further argued that the appellant was present virtually every time
    Rainbow assaulted Marissa. Next, the Crown contended the appellant made no
    attempt to intervene or protect Marissa in the face of those repeated beatings.
    Finally, the Crown submitted the appellants conduct showed she knew Rainbow
    would kill Marissa. All of the Crowns submissions were grounded in the
    evidence.

[13]

Crown
    counsels reference to the necessary intent as recklessness was, as a matter
    law, incorrect. Crown counsel was not, however, purporting to instruct the jury
    on the law. He made it clear to the jury they would take their legal
    instructions from the trial judge. Crown counsel was making submissions as to the
    factual findings, which he urged the jury to make to justify a finding the
    appellant had the necessary
mens rea
for murder. Considered in that
    context, Crown counsels submissions were neither inappropriate nor misleading.

[14]

The
    trial judge referred to the
mens rea
requirement in s. 229(a)(ii)
    several times in the course of his instructions. In his first reference, the
    trial judge wrongly told the jury that the requirement the appellant know the
    bodily harm was likely to cause death and the requirement of recklessness as to
    whether death ensued were alternative requirements. Both are required to
    establish the required
mens rea
under s. 229(a)(ii).

[15]

The trial judge, however, correctly outlined the
mens
    rea
required in several subsequent
    passages in his instructions to the jury. The first correct reference to the
    required
mens rea
appears
    in the sentence immediately following the sentence containing the error. The
    trial judge correctly put the
mens rea
requirement to the jury three times in the page and
    one-half of transcript following his initial misstatement of the
mens
    rea
.

[16]

In addition to the repeated correct oral instructions, the
    jury had the trial judges instructions in writing. The required
mens rea
was accurately set out in those instructions.

[17]

There
    was no objection to the trial judges instructions on s. 229(a)(ii).

[18]

In
    any event, the recklessness component of s. 229(a)(ii) was essentially
    surplusage on the facts of this case. If the jury was satisfied the appellant
    intended to cause Marissa bodily harm by failing to protect her from the
    repeated serious assaults inflicted by Rainbow, and if the jury was satisfied
    the appellant knew those assaults were likely to cause Marissas death and did
    not intervene, as she was obligated to do, the jury would inevitably have found
    the appellant to have been reckless as to whether Marissa died as a result of
    the assaults.

(3)

The Trial Judges
    Review of the Evidence Relating to the Appellants
Mens Rea

[19]

Trial
    judges are required to relate the relevant evidence to the issues raised in the
    case. Counsel for the appellant submits the trial judge was obligated to refer
    to certain text messages when outlining the evidence relevant to the
mens
    rea
issue. Those text messages passed
between
    the appellant and Rainbow in the few days immediately preceding Marissas death.

[20]

The
    content of the text messages cut both ways. Parts were potentially inculpatory
    and parts were potentially exculpatory. While the trial judge did not refer to
    the specific passages put forward on appeal, he did refer to the text messages
    in a more general way in his instructions.

[21]

Trial
    judges are not obligated to refer to all of the evidence that may have
    relevance to an issue at trial. Certainly, the trial judge could have referred
    to the passages from the text messages relied on by the appellant. He probably
    would have done so, had he been asked to do so at trial. His failure to do so does
    not constitute reversible error.

[22]

In holding that the failure to refer to the text messages
    did not constitute reversible error, we place significance on the position of the
    defence at trial. Counsel fully and forcefully argued the case for the
    appellant at trial. There is no suggestion the appellant was not properly
    represented. Trial counsel did not ask the trial judge to specifically refer to
    the parts of the text messages which are now put forward as crucial to an
    understanding of the appellants position with respect to
mens rea
.

[23]

When considering what
    evidence should be related to the various issues, trial judges are entitled to look
    to counsel for assistance in identifying the parts of the evidence which
    counsel regard as crucial to a proper understanding of their position on any
    issue. If, as the appellant now contends, one piece of evidence is crucial to
    an understanding of the defence case, one would expect trial counsel to say so.
    Trial counsel does not appear to have viewed the passages from the text
    messages as nearly as significant as does appellate counsel. We cannot say he
    was wrong in that assessment.

[24]

The trial judge adequately
    dealt with the evidence relevant to
mens rea
and did so in an even-handed manner.

(4)

The Instruction on
    the After-the-Fact Conduct

[25]

The
    trial judge instructed the jury that the appellants conduct after Marissas
    death could constitute circumstantial evidence of the appellants guilt. He
    identified three parts of the evidence as potentially after-the-fact conduct:

·

the appellants participation in the attempts to prevent the
    first responders from seeing Marissa when they attended at the apartment in
    response to the 9-1-1 call;

·

the appellants participation in the burying and then re-burying
    of her daughter; and

·

the appellants attempts to keep Marissas death secret.

[26]

The
    trial judge instructed the jury, at some length, on the proper approach to be
    taken to evidence of after-the-fact conduct. He stressed, that while an
    inference of guilt could be drawn, the jury must be careful to consider all other
    possible inferences first. He further instructed the jury that even if the
    appellant was motivated by feelings of guilt, those feelings could be
    attributable to something other than the offence with which she is now
    charged.

[27]

In
    the course of his instruction on the requisite
mens rea
, the trial
    judge instructed the jury that the evidence which he had earlier outlined as
    after-the-fact conduct was relevant to the issue of intent. The trial judge did
    not go into any more detail.

[28]

The
    trial judge vetted his jury instructions with counsel before giving the jury
    those instructions. Counsel were content with the after-the-fact instruction.
    On appeal, counsel argues the trial judge was required to go into considerably
    more detail with the jury as to the possible uses and the prohibited uses of
    that evidence.

[29]

The
    appellant was not prejudiced by the manner in which the trial judge approached
    the after-the-fact conduct evidence. That evidence, particularly as it related
    to the appellants involvement in the burial and re-burial of her daughter, was
    potentially powerful evidence of the appellants
mens rea
. A more
    detailed instruction as to how the jury might use that evidence to infer the
    requisite
mens rea
could only have hurt the defence position. That no
    doubt explains why the defence was satisfied with the proposed instructions and
    did not request any further instruction on the use of the evidence the trial
    judge had identified as evidence of after-the-fact conduct. The instructions
    were adequate and did not prejudice the appellant.

Conclusion

[30]

The appeal is dismissed.

Doherty
    J.A.

G.T.
    Trotter J.A.

J.A.
    Thorburn J.A.


