



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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.

6.

(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

7.

(a) as soon as feasible, inform the victim of their right to make an
    application for the order; and

8.

(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. J.S., 2018 ONCA 39

DATE: 20180119

DOCKET: C62616 & C60363

Simmons, Rouleau and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.S.

Appellant

Diana Lumba, for the appellant

Scott Latimer, for the respondent

Heard: May 4, 2017

On appeal from the conviction entered on February 26,
    2013 by Justice Robert F. Scott of the Superior Court of Justice, sitting with
    a jury.

Roberts J.A.:

A.

Overview

[1]

The appellant was convicted of sexual assault following
    a jury trial
.

[2]

The main issue on appeal relates to alleged improprieties by Crown
    counsel during her cross-examination and closing address to the jury with
    respect to the appellants right to silence and the proper characterization of
    the forensic evidence. The question is whether these alleged missteps, in the
    absence of a correcting jury instruction, led to an unfair trial and a
    miscarriage of justice.

[3]

The main issues at trial were whether the sexual assault had occurred at
    all and, if so, the identity of the assailant. The complainant was severely
    intoxicated and had little recollection of the assault. She did not identify
    the appellant as her assailant, and could not identify her assailant other than
    by a vague description, which did not match the appellant. The appellant
    testified and denied sexually assaulting the complainant. The appellant and his
    girlfriend testified that they were together in his bedroom when they heard and
    then responded to the complainants cries from a nearby bedroom.

[4]

According to the Crowns forensic expert, there was no physical evidence
    of sexual intercourse obtained from the examination of the complainant at the
    hospital. Trace amounts of male DNA were found on the complainants underwear that
    forensic testing indicated could have been deposited by a number of males,
    including the appellant. The Crowns expert opined that there was saliva deposited
    on the underwear but she was unable to conclusively determine whether it was
    the source of the appellants DNA.

[5]

While cross-examining the appellant, Crown counsel asked him to explain how
    saliva had been deposited on the complainants underwear. The appellant testified
    that the complainant had asked him to help find her underwear, and that he had
    been chewing his nails right before he picked it up. His girlfriend testified
    that she saw this occur. Crown counsel asked the appellant why, if he wanted to
    be helpful to the police, he did not tell them about picking up the
    complainants underwear.

[6]

Crown counsel returned to this theme during her closing address to the
    jury, submitting that the appellant and his girlfriend had concocted their
    story to explain the presence of his DNA in response to the results of the
    forensic testing. The Crown also invited the jury to use common sense to
    conclude that the saliva on the underwear came from the appellant even though
    the forensic expert was unable to come to this specific conclusion.

[7]

Apart from a general warning that applied to the jurys assessment of
    all the witnesses, no correcting instructions on any of these issues were
    requested by the defence or given by the trial judge to the jury. Nor did
    defence counsel object to any part of the charge.

[8]

The jury returned a guilty verdict on February 26, 2013. On May 1, 2015,
    the appellant was sentenced to 18 months in custody.

[9]

The appellant submits that he did not receive a fair trial. He cites various
    problems that arose during the trial that he says unfairly undermined his
    defence.
[1]
Given that the trial judge failed to remedy these issues with correcting instructions
    to the jury, he argues that there was a miscarriage of justice.

[10]

I
    agree. In the context of the entire trial, the Crowns problematic and
    inaccurate statements and the absence of correcting jury instructions resulted
    in an unfair trial and a miscarriage of justice. For the reasons that follow, I
    would allow the appeal, set aside the conviction, and order a new trial.

B.

Factual Background

[11]

The
    complainant and the appellant were part of a group of friends who met up on
    June 18, 2010 for a night of drinking.

[12]

For
    the complainant, the nights drinking started at around 9 p.m., when she and E.B.
    met up with the appellant and S.K., and later J.E., at J.E.s house. The
    appellant was temporarily staying at J.E.s house until his apartment was ready
    at the end of the month.

[13]

After
    about an hour of drinking beers at J.E.s house, the group left for a local bar,
    where they were joined by J.T. and B.F. They engaged in another hour or so of
    drinking. From there, most of the group spent a further hour or so drinking at another
    local bar, where they met the complainants friends from Cobourg, D.P. and M.C.
[2]
In the small hours of the morning, the group (absent M.C.) returned to J.E.s
    house where they continued drinking.

[14]

The
    complainant was already very intoxicated by the time she first left J.E.s
    house. She frankly admitted having little recollection of the time spent at the
    first bar and none of being at the second. She could not say how she returned
    to J.E.s house and had only a very vague recollection of sitting on the porch
    and then on the living room couch before she passed out. It is common ground
    that the complainant was carried by J.T. and B.F. to J.E.s bedroom, where she
    was left to sleep fully clothed under the bed covers.

[15]

In
    the meantime, the appellant and the other friends continued to drink in the
    living room of J.E.s house. After about an hour, the appellant texted his then
    on-again off-again girlfriend, K.R., to come to the house to have sexual
    relations with him. When K.R. arrived, the appellant asked everyone to leave so
    that he and K.R. could be alone. Everyone but S.K. left the house at that
    point. S.K. had become ill and was vomiting in the bathroom. According to the
    appellant and K.R., S.K. left the house about 30 to 50 minutes after everyone
    else.

[16]

J.T.
    testified that before she left to go home, she looked in on and spoke briefly
    to the complainant who had not changed positions since J.T. and B.F. had first
    placed her in J.E.s bed. J.T. saw the complainant fall back asleep and closed
    her door. The complainant had no recollection of being put to bed or of
    speaking with J.T.

[17]

The
    appellant testified that he and K.R. had been in his bedroom having sexual
    relations for 15 to 30 minutes - K.R.s estimate varied between 15 to 30
    minutes and about an hour - when they were interrupted by the complainants
    cries from the bedroom across the hall.

[18]

The
    complainant testified that she woke briefly at some point during the night,
    while it was still very dark, because she felt someone having sexual
    intercourse with her. She was coming in and out of consciousness and could only
    describe the mans silhouette on top of her, which she agreed did not match the
    appellant. She had fallen asleep wearing her contact lenses and said that she
    could not really see anything. She heard spitting. She testified that the next
    time she woke up, she saw the silhouette backed up a little bit. She again
    lost consciousness.

[19]

Waking
    again before about 5:00 a.m., the complainant found that she was alone but that
    her skirt was pushed up and she was not wearing the underwear that she had put
    on the previous morning. She became very upset and began to yell loudly and
    cry, which caused the appellant to enter the room and turn on the lights. The
    appellant and K.R. testified that K.R. came, too, and stood in the doorway. The
    complainant said that she did not see K.R. that night. The complainant
    testified that after entering the room, the appellant told her to be quiet
    because K.R. was sleeping in the other room and was angry; the appellant denied
    saying this to the complainant. The appellant and K.R. testified that the
    appellant was never out of K.R.s sight.

[20]

The
    complainant testified that she could not remember what she told the appellant
    but believed that she tried to tell the appellant what had happened. The
    appellant testified that she asked him if someone was in the room. The
    appellant left the room to search the house, returning a few minutes later to say
    that he had found no one.

[21]

The
    appellant testified that the complainant asked about her underwear. He then spotted
    the underwear on the floor, picked it up and put it on her lap or on the bed. According
    to the appellant, the complainant calmed down and went back to sleep. He and K.R.
    then returned to his bedroom. They heard the complainant leave sometime later.

[22]

Although
    the complainant conceded that she may have asked the appellant about her
    underwear, she testified that she found it in the bed. She did not recall picking
    it up herself. She testified that after the appellant left her room, she continued
    to look for her cellphone and then left J.E.s house.

[23]

Upon
    arriving at her home, the complainant sent two messages at 5:21 and 5:22 a.m.
    to J.E. via Facebook, indicating that something bad had happened to her. She
    wrote that she had no memories of what had happened, and that she had lost her
    cellphone. A few hours later, J.E. and J.T. came over to the complainants
    apartment, and J.T. returned the complainants cellphone which she had taken
    the night before for safekeeping. The complainant told them what happened. According
    to J.T., the complainant said, Maybe its just a bad dream. Later in the
    afternoon, the same friends took the complainant to the hospital where she
    underwent a sexual assault examination. The complainants underwear was submitted
    for forensic testing.

Summary of the Forensic Expert Evidence

Overview

[24]

The Crown called Melanie Richard, a forensic biologist with
    the Centre of Forensic Sciences (CFS), who testified about the analyses that
    she carried out. Oral and vaginal swabs were taken from the complainant at the
    hospital, and those swabs, as well as the complainants underwear, were sent to
    and tested at the CFS lab. The chain of custody for these items was uncontested.
    The defence called no additional forensic evidence.

[25]

As further explained below, Ms. Richard was able to develop two
    identifiable male profiles from the trace amounts of male DNA found on the
    complainants underwear. The appellant could not be excluded as the contributor
    of the Profile 1 DNA. The complainants boyfriend, T.F., could not be excluded
    from Profile 2. Ms. Richard also explained that there were additional amounts
    of male DNA present on the underwear, but in such small quantities that no
    profile could be developed. She testified that neither the appellant nor T.F.
    could be excluded as the contributors of this additional DNA, but that it also
    could have originated from other unknown male donors.

DNA Analysis

[26]

Ms.
    Richard testified that the CFS processed the complainants oral swab, as well as
    the internal and external vaginal swabs. No semen was detected on any of the swabs.
    For that reason, the CFS lab did not further test the oral and internal vaginal
    swabs for DNA. The external vaginal swab was tested for DNA that could
    originate from digital penetration, cunnilingus, or penile penetration with
    ejaculation draining out through the external genitalia. No male DNA was found
    on the external genitalia swab. However, Ms. Richard testified that it was
    absolutely not possible to equate the absence of semen or male DNA on the
    swabs with an absence of sexual contact.

[27]

Since
    the swabs revealed no forensically meaningful information, the complainants
    underwear was then examined. The following bodily substances were found on three
    small cut-outs from the underwear:

(i)

on cut-out 1-1, which was taken
    from a portion of the crotch area, both semen and saliva were found;

(ii)

on cut-out 1-2, which was taken
    from a portion of the crotch area and front panel, only semen was found; and

(iii)

on cut-out 1-3, which was taken
    from the hip area, only saliva was found.
[3]

[28]

These
    cut-outs were then tested for DNA. Most of the DNA identified on these samples came
    from the complainant. Ms. Richard testified that the additional DNA that was
    present was a very minor amount relatively speaking and could therefore not
    be used to deduce anything using the standard Autosomal STR DNA analysis.

DNA Profiles Developed

[29]

Ms.
    Richard then proceeded to apply a Y STR test, which is specific to males, to exclude
    the complainants female DNA and focus on any DNA contributed by a male. With
    this test, Ms. Richard deduced two different male profiles:  Profile 1, which
    she linked to the appellant; and Profile 2, which she associated with the
    complainants boyfriend, T.F.

[30]

DNA
    samples had been taken from three males other than the appellant:  S.K., who
    had been drinking with the group earlier in the evening, and later vomited in
    the bathroom at J.E.s house; K.L., who had sent sexually explicit text
    messages to the complainant over the course of the evening; and T.F., the
    complainants boyfriend, who was away camping for the weekend at the time of
    the alleged assault. No DNA samples were taken from B.F. or D.P., who were also
    at the house at some point during the evening.

[31]

Ms.
    Richard was able to exclude S.K. and K.L. from both Profile 1 and Profile 2.

Profile 1

[32]

The
    appellant was excluded as the source of Profile 2 but could not be excluded as
    the source of Profile 1. The DNA associated with Profile 1 was detected in the epithelial
    fraction
[4]
of cells found in all three cut-outs, along with the additional lesser amounts
    of unidentifiable DNA. Ms. Richard testified that she could not discern from which
    bodily fluid or fluids the Profile 1 DNA originated, because it was present in
    such trace amounts and because it was associated with other sources of DNA. She
    could not preclude blood, semen, saliva or even sweat  a more diluted source
    of DNA than the other bodily fluids
[5]
 as the source of the Profile 1 DNA. However, although she could not conclusively
    rule out semen as the source, she agreed in cross-examination that it was
    reasonable to say the Profile 1 DNA was not from sperm.
[6]


Profile 2

[33]

T.F.
    was excluded as the source of Profile 1, but could not be excluded as the source
    of Profile 2. The Profile 2 DNA, which Ms. Richard opined originated from
    semen, was found in the sperm fraction detected in cut-out 1-2 from the crotch
    area of the underwear.

Unattributed Male Donors

[34]

There
    was also DNA detected in each of the three cut-outs in such small amounts that
    no profile could be developed and no comparison could be made. Ms. Richard
    testified that she could not exclude the appellant or T.F. as the source of
    this remaining DNA. However, she testified that it was possible that the
    remaining DNA originated from other unidentified male donors.

C.

Analysis

[35]

The
    appellant alleges numerous errors that, he argues, resulted in trial
    unfairness. In my view, it is unnecessary to address all the grounds raised. To
    dispose of this appeal, it suffices to review the following two principal errors
    alleged by the appellant: the erosion of the appellants right to silence and
    the mischaracterization of the forensic evidence.

[36]

In
    this case, the appellant alleges that the Crown breached his right to silence
    by effectively encouraging the jury to view the following as positive evidence
    of guilt: the accuseds failure to be more helpful to the police when initially
    questioned; his late explanation of the presence of his DNA on the
    complainants underwear; and the possibility that the appellant and his girlfriend
    concocted and tailored their evidence after learning about the forensic
    evidence. He also contends that the Crown mischaracterized the forensic
    evidence in suggesting that it only supported the Crowns theory of the case.

[37]

In
    the absence of correcting jury instructions to address these issues, the
    appellant submits that these errors resulted in an unfair trial.

[38]

In
    analyzing the appellants allegations of trial unfairness, I am mindful that an
    accused person is entitled to a fair trial, not a perfect one:
R. v. White
,
    2011 SCC 13, [2011] 1 S.C.R. 433, at para. 194. On appeal, it is not the courts
    task to search for isolated imperfections in the conduct of the trial or minutely
    dissect the jury charge. Rather, a new trial must be ordered only if the
    process as a whole has breached the appellants right to a fair trial and
    resulted in a miscarriage of justice:
R. v. Henderson
, 134 C.C.C. (3d)
    131, at para. 33 (Ont. C.A.);
R. v. A.G.
, 2015 ONCA 159, 124 O.R. (3d)
    758, at paras. 22 to 25;
R. v. John
, 2016 ONCA 615, 133 O.R. (3d) 360,
    at paras. 51 to 83, leave to appeal refused, [2017] S.C.C.A. No. 101.

[39]

With
    these general principles in mind, I turn next to consider the appellants
    allegations of trial unfairness in the context of the trial process.

(1)

The Crowns Case

[40]

The
    Crowns case was weak. Because of the complainants difficulty remembering the
    event, it depended heavily on the forensic evidence. To prove its case, the
    Crown was required to persuade the trier of fact to make three findings. The
    jury had to accept the complainants claim that an assault had occurred beyond
    a reasonable doubt. It had to reject the testimony of both the appellant and K.R.
    as neither true nor capable of raising a reasonable doubt. And, it had to accept
    that the evidence as a whole established the appellant was the perpetrator of
    the crime, again beyond a reasonable doubt.

(a)

Limited independent evidence of sexual intercourse

[41]

The
    complainant testified that she felt penetrated by a penis. By her own
    admission, her account of the sexual assault was vague and she could not
    remember 98% of what had occurred on the evening in question. The defence
    raised issues about her characterization of the events as a bad dream and lack
    of memory and thus raised issues concerning the reliability of her evidence. There
    was little independent evidence, forensic or otherwise, that sexual intercourse
    had taken place. Nevertheless, Crown counsel advised the trial judge during the
    pre-charge conference that the Crown was not alleging that anything less than
    sexual intercourse had taken place. And the trial judge instructed the jury accordingly.

(b)

Absence of direct evidence identifying the perpetrator

[42]

The
    complainant could not say when the sexual assault had taken place, other than that
    it must have occurred sometime after she had been put to bed by J.T. and B.F.
[7]
Further, she gave only a limited description of the perpetrator, and one that
    did not match the appellant. At no time did she identify the appellant, whom
    she knew, as the perpetrator.

[43]

On
    the complainants evidence, it was not implausible that the alleged assault was
    perpetrated by one of the other males, who was not tested or excluded as a source
    of the male DNA on her underwear, and who could have been present at J.E.s
    house when the sexual assault took place. There is no dispute that everyone who
    returned to J.E.s house knew that the complainant was sleeping in J.E.s bed.

[44]

The
    appellant denied sexually assaulting the complainant. His account was
    corroborated by his now common-law spouse, K.R., and placed him in the next
    bedroom with K.R. at the time when the Crown submitted that the assault took
    place.

(c)

Inconclusiveness of the forensic evidence

[45]

The
    Crowns case against the appellant therefore relied heavily on the forensic evidence
    to connect him to the crime. This is highlighted by the fact that the police
    only charged the appellant after receiving the forensic results. I agree with
    the appellant that the forensic evidence, standing alone, was also inconclusive.
    This was so for several reasons.

[46]

First,
    not all of the males who were at the house that night were tested and excluded.
    B.F. and D.P. were not tested. Furthermore, S.K. and K.L. were only excluded
    from Profiles 1 and 2.

[47]

Second,
    as highlighted by the appellant, it was not possible for the expert to provide
    any opinion on what bodily fluid was the source of the appellants DNA because the
    quantity of DNA associated with the appellants profile was so small.
As Ms. Richard concluded, I cant rule out any bodily
    fluids so I cant  I cant  its uninformative. I cant tell you  what it
    originates from.
The appellant and K.R. both testified that the
    appellant had picked up the complainants underwear to hand it to her. Since
    the expert agreed that it was possible for the appellants DNA to have been
    transferred to the underwear in this way, the forensic evidence was potentially
    consistent with both the theory advanced by the defence and the Crown.

(2)

Trial Unfairness

[48]

Given
    the weakness of the Crowns case, it was particularly important for the Crown to
    avoid impermissible lines of reasoning and accurately present the evidence in
    addressing the jury.

[49]

With
    this context in mind, I next consider two of the specific instances of trial
    unfairness alleged by the appellant.

(i)

The right to silence and alleged concoction

[50]

I
    agree with the appellants submission that the repeated suggestion by Crown
    counsel that the appellant was required to provide the police with information
    or otherwise be helpful to the police undermined his right to silence.

[51]

The
    appellant did not forfeit his constitutional right to silence because he chose
    to speak about some but not all of the details that he later testified to at
    trial:
R. v. W.L.
, 2015 ONCA 37, 123 O.R. (3d) 641, at para. 19.

[52]

During
    the appellants examination in chief, his own counsel asked him to explain how
    his DNA had come to be on the complainants underwear. This opened the door for
    Crown to ask some further questions on this topic.

[53]

However,
    in my view, Crown counsels line of inquiry went too far and impermissibly suggested
    that the appellant had a positive obligation to provide information to the
    police. Crown counsels problematic exchange with the appellant proceeded as
    follows:

Q. Okay. And when you went in you wanted to be helpful to the
    police?

A. Yes.

Q. Ummm  you told the police everything you could to try and
    help them?

A. From what I remember and I remember telling them that there
    was probably stuff I didnt remember at the time but I could probably help
    later.



Q. Was there something else?

A. The underwear  picking up the underwear.

Q. Right. Okay. Were going to talk about that in a bit. From
    your point of view youre sitting there with the Detective; you want to give
    him every bit of relevant information you could remember at that time because
    you believe  you know  your friend has had this horrible thing happen to her,
    correct?

A. Yes.

Q. And she was your friend?

A. Yes.

Q. You helped the police by giving them actually a number of
    different cell phone numbers including [K.R.s]?

A. Yes.



Q. Okay. You referenced this a little earlier
    and well talk about it now if we may; you didnt volunteer to Det. Jarvis that
    you gave her her underwear, right?

A. The discussion didnt come up. Like I told
    him, I didnt remember every single detail and I could probably assist him
    later.



Q. But you didnt think that was important for
    the police officer to know that her underwear was off?



Q. Okay. In that 45 minute interview where
    youre being extremely helpful, the underwear part doesnt come to mind?

A. I was being as helpful of what I could
    remember at the time.

[54]

In
    addition, after the appellant had offered his nail-biting as a possible
    explanation of the presence of his DNA and of saliva on the complainants
    underwear, in her closing address, Crown counsel emphasized the appellants failure
    to mention picking up the underwear, and as will be further discussed, invited
    the jury to find that the appellant and K.R. had concocted their evidence:

[The appellant] in his evidence I suggest had a lot of problems.
    I am asking you to reject his evidence. For example, he said in
    cross-examination for the first time that he chewed his nails and that this is
    how  potentially how his saliva mightve ended up in [the complainants]
    underwear. Ummm  I leave that for you to assess
but I suggest to you that
    its late  its interesting that didnt come out in-chief
. Ummm  I dont
    know if youve been watching him during the Trial and noticed him chewing on
    his fingernails; I havent but I dont get to see him very well where Im
    sitting so I leave that with you if you think that makes sense. If you think
    that the act of putting ones fingers in ones mouth and chewing on fingernails
    is going to create the kind of transfer that we heard about from Ms. Richard in
    the crotch of [the complainants] underwear; thats  thats speculation in my
    respectful submission.



Both [K.R.] however and [the appellant]
have a fatal flaw in
    their evidence and I think its  its the House of Cards and this is the cards
    that will fall down; neither mentioned underwear when they talked to Detective
    Jarvis.
Youre sitting there, you know this police officer is
    investigating a sexual assault. Youre the one that was in there with [her]
    right after it happened. He asks you how shes dressed or how  Tell us about
    her clothes? What clothes has she got on or not on? Something about clothes
    and being dressed and you dont mention her underwear is off.



So, neither mention this underwear to Detective Jarvis and
    Im suggesting to you theres a very good reason why they dont mention it;
    its cause [sic] that didnt happen that way. It didnt happen. He never
    touched her underwear. This is concocted to explain the presence of the DNA on
    the underwear
. [Emphasis added.]

[55]

In
    all the circumstances, absent a correcting instruction by the trial judge, the
    jury could have been left with the impression that if the appellant were an
    innocent person, he would have volunteered the information that he had touched the
    complainants underwear and would have provided any explanation consistent with
    his innocence to the police at the first opportunity:
R. v. Poirier
(2000), 146 C.C.C. (3d) 436 (Ont. C.A.), at para. 21. Most juries would feel
    that an innocent man would be prompted to tell his side of the story, and,
    without a correcting instruction, even the most reasonable and fair-minded
    jurors might draw an inference that the appellant should have said something
    about the underwear before trial:
Poirier
, at para. 21;
R. v.

Chambers
, [1990] 2 S.C.R. 1293, at p. 1318, 59 C.C.C. (3d) 321, at
    para. 65.

[56]

In
    consequence, by suggesting that the appellant should have given the version of
    events that he gave at trial at an earlier opportunity, Crown counsel was
    effectively and impermissibly inviting the jury to treat the appellants
    silence in that regard as evidence of his guilt. While it was open to the Crown
    to encourage the jury to reject the appellants trial evidence as implausible
    and the appellant as not worthy of belief, it was impermissible to intimate
    that the jury should use the appellants failure to earlier reveal his version
    of the events as positive evidence of guilt:
W.L.
, at para. 18.

[57]

In
    addition, as noted above, after the appellant had offered his nail-biting as a
    possible explanation of the presence of his DNA on the complainants underwear,
    in her closing address, Crown counsel invited the jury to find that the
    appellant and K.R. had concocted their evidence:

So, neither mention this underwear to Detective Jarvis and Im
    suggesting to you theres a very good reason why they dont mention it; its
    cause [sic] that didnt happen that way. It didnt happen. He never touched her
    underwear. This is concocted to explain the presence of the DNA on the
    underwear.

[58]

The
    Crown also referred to the appellant and K.R. as people who are trying to get
    their stories straight and not getting them straight.

[59]

The
    trial judge summarized the Crowns concoction theory in the jury charge.

[60]

I
    agree with the appellants submission that the Crowns suggestion that the appellant
    and K.R. concocted their evidence to respond to the forensic results violated
    the well-established prohibition against allegations to the jury that the
    accused tailored his evidence after receiving disclosure: see
John
, at
    paras. 58-60.

[61]

Moreover,
    particularly in the context of Crown counsels fatal flaw submissions in her
    closing address about not mentioning the underwear to the police, the Crowns follow-up
    suggestion that the appellant and K.R. concocted their evidence that the
    appellant touched the complainants underwear amounted to an impermissible
    invitation to the jury to use disbelief of that evidence as evidence of guilt.

[62]

Here,
    there was no independent evidence capable of demonstrating fabrication:
OConnor
,
    at para. 23. A jury instruction on consciousness of guilt was not therefore available.
    In these circumstances, it was impermissible for Crown counsel to leave the impression
    that the jury could infer the appellants guilt from concoction. The trial
    judge erred in failing to correct Crown counsels erroneous suggestions in his
    jury charge.

[63]

I
    do not accept the Crowns submission that there was little risk that the jury would
    use their disbelief of the appellants exculpatory statements as proof of his
    guilt. There is always a real danger that without some instruction from the
    trial judge, a jury could make the leap from their disbelief of an accuseds
    exculpatory explanation to a finding of guilt based on that disbelief, especially
    if given for the first time at trial:
R. v. Coutts
, 126 C.C.C. (3d)
    545 (C.A.), leave to appeal denied, [1998] S.C.C.A. No. 450;
R. v. Oland
,
    2016 NBCA 58, [2016] N.B.J. No. 288, at paras. 66-69, leave to appeal refused, [2016]
    S.C.C.A. No. 188. That risk was exacerbated here by the Crowns closing
    address.

[64]

Nor
    do I accede to the Crowns assertion that the trial judges general
    instructions concerning the appellants right not to testify or present
    evidence, the use of the appellants (and all witnesses) prior inconsistent
    statements, and the standard
R. v. D. (W.)
, [1991] 1 S.C.R. 742
    direction, were sufficient to mitigate the risk that the jury would
    impermissibly infer guilt from the appellants silence and Crown counsels
    suggestion that he fabricated evidence.

[65]

Here,
    nuanced instructions were required to correct the identifiable problems that
    arose in this trial, along the lines indicated in
W.L.
, at para. 27,
John
,
    at para. 63, and
OConnor
, at para. 36:

i. The jury was entitled to
    take into account, in assessing the appellants credibility, all of his evidence,
    including his explanation of why he did not provide a fuller account of his
    conduct.

ii. The jury ought to have
    been cautioned, however, with specific reference to Crown counsels suggestions
    that the appellant should have been helpful by speaking to the police, that the
    appellant had a right to remain silent, had a right to choose what to say and
    what not to say, and that his failure to provide a fuller explanation, from the
    time of his interrogation until trial, could not be used to assess his credibility
    at trial.

iii. The jury ought to have
    been told that the appellant had no obligation to disclose anything to police, and
    that no adverse inference could be drawn against him from his failure to do so.

iv. The jury also should
    have been told that even if they did not believe the appellants exculpatory version
    of events, they could not use their disbelief as positive proof of the
    appellants guilt.

[66]

Had
    the trial judge provided specific instructions to the jury to correct the impermissible
    inferences left with the jury by the Crown, and to assist the jury in the allowable
    use that could be made of the appellants silence and trial version of events
    (as was done in
John
), these problems would not have resulted in an
    unfair trial. However, in this case, the trial judges non-specific instructions,
    which failed to clarify how they applied to the particular issues that arose, were
    insufficient to alleviate the unfairness created by the Crowns erosion of the
    appellants right to silence and impermissible suggestions that the appellant
    had fabricated evidence and was therefore guilty.

(ii)

Mischaracterization of the forensic evidence

[67]

The
    Crown also significantly mischaracterized the nature and utility of the
    forensic evidence. This was significant because this evidence served to prop up
    an otherwise weak Crown case.

[68]

One
    of the troubling aspects of the Crowns case was the identity of the assailant.
    Since the complainant did not identify the appellant as the perpetrator and
    since he was not the only male in the house on the evening in question, the forensic
    evidence of his DNA on the complainants underwear was central to connecting
    him to the offence. While there was direct testimony from the complainant that
    a sexual assault had occurred, not only could she not identify the appellant,
    whom she knew, as her assailant, but her description of the assailant also did
    not correspond to him.

[69]

As
    elicited, however, the forensic evidence did not identify which bodily fluid
    was the source of the appellants DNA on the complainants underwear. Standing
    alone, it did no more than confirm that the appellant had come into contact
    with the underwear. It was thus potentially consistent with both the Crown and
    defence theories.

[70]

However,
    Crown counsel here overstated or mischaracterized the forensic evidence in two
    important ways. First, she overstated the significance of the forensic evidence,
    asking the jury to draw conclusions that the forensic expert specifically said
    she could not draw. Second, she stated that two other males subjected to DNA
    testing had been eliminated as DNA contributors when that was not the case.

[71]

In
    the following passage taken from her closing address, Crown counsel mischaracterized
    Ms. Richards evidence and then invited the jury to find that the only reasonable
    inference available from this mischaracterized forensic evidence was guilt:

And I suggest to you when you use your common sense, theres a
    DNA Profile in that underwear in at least two locations from [the appellant].
He
    cannot be excluded as a source of that Profile in the crotch and on the hip of
    the underwear, both of those locations are where all the saliva is present
.
What makes sense?  What does your common sense tell you?  Common sense, I
    suggest tells you that [the appellant] had spit on his hands or on his penis or
    both or performed oral sex on [the complainant]. In any event, it was
    introduced in some fashion into her underwear during the course of his assault
    on her.
Remember, she said she heard spitting during the incident. You know
    the time line of when she was interviewed by police and when the DNA results
    were returned. You know she could not have known how significant that one
    little utterance might have been. She didnt make that up randomly and get
    lucky; doesnt work backwards. She didnt dream that. It happened.
Her
    assailant was spitting, [and lo and behold] we have amylase in those underwear
    indicative of saliva in the same locations where the DNA Profile associated to [the
    appellant] is found. What does your common sense tell you about those facts?
[Emphasis added.]

[72]

The
    Crowns suggestion here mischaracterized in several ways Ms. Richards evidence
    about the source of the appellants DNA on the complainants underwear. Ms.
    Richard did not testify that the Profile 1 DNA associated with the appellant was
    from his saliva. As I have already noted, the expert specifically stated that
    she
could not
identify the bodily fluid that was the source of the appellants
    DNA. She clearly testified that she could not rule out
any
bodily
    fluids (emphasis added) as the source of the appellants DNA on the
    complainants underwear.

[73]

Further, Ms. Richard indicated that the DNA of males
    other than the appellant could have been on the underwear where the saliva was
    present.
She was not able to connect the appellants DNA to any of the
    saliva, let alone to all of the saliva. She also said that the saliva could
    have come from the complainant, from at least one other unidentified male DNA
    contributor (who could have been the appellant, T.F. or at least one other
    unknown male), or from any combination of these sources. The Crowns framing of
    this evidence was inaccurate and overstated in a significant way.

[74]

Ms.
    Richard acknowledged that one explanation for the amylase finding could be Crown
    counsels hypothetical that someone with saliva on their hands  correlates
    better with the amylase finding that you have in this particular case than
    with a sweat-based transfer. However, as already noted, Ms. Richard was not
    able to connect the appellants DNA to any of the saliva on the complainants
    underwear.

[75]

Finally,
    I note that, in her closing address, Crown counsel stated that the DNA of both K.L.
    and S.K. had been tested and that they were eliminated. Once again, this is
    an example of inaccuracy and overstatement on the part of Crown counsel. Although
    Ms. Richard testified that both men were eliminated as DNA sources for Profile
    1 and Profile 2, neither they, nor anyone else, could be eliminated as the
    source of the DNA detected in insufficient quantities to generate a profile.

[76]

It
    was open to Crown counsel to suggest to the jury that the presence of the
    appellants DNA on the

complainants
    underwear was a piece of circumstantial evidence to consider, along with all of
    the other evidence elicited at trial, and to conclude that the Crown had proven
    the appellants guilt of the offence beyond a reasonable doubt. However, Crown counsel
    went further and strayed into impermissible mischaracterization of the forensic
    evidence.

[77]

The
    trial judge did not correct the mischaracterization of the forensic evidence. The
    trial judges non-specific instructions were insufficient to correct the
    significant overstatements in this case.

[78]

There
    is always the risk that a jury may treat forensic evidence as infallible
    because of its scientific nature and, as a result, overemphasize its
    significance. It is therefore very important that forensic evidence is
    carefully and accurately explained. The forensic evidence as elicited in this
    case was inconclusive and difficult to understand. It is clear from the record
    that the trial judge and counsel grappled with how it could be effectively presented
    to the jury. In the absence of a clear correcting instruction, the Crowns
    mischaracterization of the nature and use the jury could make of the forensic
    evidence resulted in an unfair trial.

(3)

Overall effect on trial fairness

[79]

In
    my view, the cumulative effect of the problems discussed above required nuanced
    correcting instructions from the trial judge. In the absence of such instructions,
    there was a real danger that the jury was misled and that as a result, the jury
    would not have properly assessed the evidence, especially the appellants
    exculpatory evidence and the forensic evidence.

[80]

While
    I note that defence counsel failed to object to these issues at trial, the lack
    of objection is not determinative; the responsibility for the jury charge
    ultimately falls on the trial judge:
R. v. Ellard
, 2009 SCC 27, [2009]
    2 S.C.R. 19, at para. 47. Here, the trial judge erred by failing to correct the
    problems that compromised trial fairness.

[81]

As
    a result, I conclude that the trial was unfair and that there was a miscarriage
    of justice.

D.

Disposition

[82]

Accordingly,
    I would allow the appeal, set aside the conviction, and order a new trial.

Released: January 19, 2018

L.B. Roberts J.A.

I agree Janet Simmons J.A.

I agree Paul Rouleau J.A.





[1]

The appellant did not pursue the unreasonable verdict ground
    at the hearing of the appeal.



[2]
J.E. testified that she was not drinking that evening as she was not feeling
    well. She was carded at the second bar and did not join the group inside. Soon
    after the group returned to her house, she and E.B. left to sleep elsewhere.



[3]
The substance referred to as saliva was actually amylase, a protein found in
    saliva and other bodily fluids. Ms. Richard opined that the amylase found in
    these locations was contained in saliva.



[4]
Ms. Richard explained that they used a modified extraction method to
    fractionate the cell types that were present and extracted DNA from the
    non-sperm (epithelial) fraction first and then from the sperm fraction.



[5]
Ms. Richard explained that DNA is found in cells, for example, sperm cells. Some
    bodily fluids are a rich source of DNA, such as blood, semen and saliva; others
    not so much, for example, sweat, which is a carrier of sloughed-off epithelial cells
    picked up from the skin and outer surface of the body.



[6]

Ms. Richard explained that sperm cells are contained in semen
    and that sperm cells are the main cellular component of semen, although there
    is the possibility for epithelial cells to be present.



[7]

J.T.s evidence, if accepted, may have restricted the time
    frame to sometime after she checked on the complainant before departing.


