



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)       REPEALED: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    information that could identify the victim shall not be published in any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. Dyce, 2017 ONCA 123

DATE: 20170214

DOCKET: M47426 (C60818)

Juriansz J.A.

BETWEEN

Her Majesty the Queen

Respondent (Responding Party)

and

Wayne Dyce

Appellant (Applicant)

Wayne Dyce, acting in person

Nader R. Hasan, duty counsel

Michelle Campbell, for the Crown

Heard: February 6, 2017

ENDORSEMENT

[1]

The appellant, with the assistance of duty counsel, applies for an order
    under s. 684 of the
Criminal Code
assigning counsel to act on his
    behalf on the appeal. The Crown acknowledges he lacks sufficient means to
    retain legal assistance. The only issue is whether it appears desirable in the
    interests of justice that the appellant should have legal assistance.

[2]

Mr. Hasan submits there are three
    grounds on the conviction appeal for which the appellant should have legal
    assistance.

[3]

I see no merit in the first submission the
    trial judge erred by not instructing the jury on the dangers of propensity
    reasoning on the multi-count indictment. In my view, this was not a case in
    which it was legal error to fail to give such an instruction. Both sides
    presented significant evidence that applied to all counts  for example, the
    evidence supporting the appellants position the complainant had a motive to
    lie. In any event, the jury evidently understood the trial judges instruction
    to consider the charges separately: they acquitted the accused on four of the
    six charges he faced.

[4]

Nor do I see merit in the submission the
    trial judge failed to instruct the jury on the defence of honest but mistaken
    belief that the complainant consented. In my view there was no air of reality
    to that defence.

[5]

However, I accept it is arguable the
    trial judge failed to provide the jury with adequate assistance in dealing with
    the assessment of the parties credibility (on which the entire case turned).

[6]

First, where, as here, credibility is a
    crucial issue at trial, failure to specifically and adequately instruct the
    jury on credibility and the burden of proof may constitute a reversible error.
    As the Supreme Court held in
R. v. J.H.S.
, 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 8:

A series of decisions over at least
    the past 20 years has affirmed and reaffirmed the proposition that where
    credibility is a central issue in a jury trial, the judge must explain the
    relationship between the assessment of credibility and the Crowns ultimate
    burden to prove the guilt of the accused to the criminal standard.  A general
    instruction on reasonable doubt without adverting to its relationship to the
    credibility (or lack of credibility) of the witnesses leaves open too great a
    possibility of confusion or misunderstanding.

[7]

This concern has at least arguable
    merit on this record. The trial judge did review for the jury the appellants position
    the complainant (i) had a motive to fabricate and (ii) might not be reliable
    due to un-medicated bipolar disorder. She also gave a general instruction that
    it was up to the jury how much or little they chose to believe, using their
    common sense, from each witness. But there was no specific instruction on how
    to assess credibility, or the relationship between credibility and the burden
    and standard of proof.

[8]

The necessity of such an instruction in
    this case may be considered in the context of Count 2 of the indictment. Count
    2 charged that the appellant assaulted the complainant. The complainant
    testified this occurred that while she was a passenger in a car the appellant
    was driving. Dissatisfied with the way she was handling a call to Community
    Legal Assistance Sarnia, the appellant hit her three times in the head. The
    complainant testified she told the person to whom she was speaking that she was
    being hit. By contrast, the appellant testified that he made the call. The
    secretary of Community Legal Assistance Sarnia was called and testified she
    received a call from the appellant, not the complainant, and there had been no
    allegation of any assault.

[9]

The trial judge provided no instruction
    to the jury of the import of this evidence for the complainants overall credibility
    in the event they concluded she had fabricated or not told the truth about this
    event. Rather, in the course of her instructions on Count 2, the trial judge
    merely told the jury the appellant submitted that an independent witness
    supports his version of events as it relates to the incidents surrounding the
    cell phone incident.

[10]

I consider it arguable that a more
    fulsome instruction about credibility assessment was required in this case.

[11]

Second, a trial judge should generally
    instruct the jury on the limits of demeanor evidence in assessing credibility.
    The Canadian Judicial Councils
Model Jury Instructions
, Part I, Preliminary Instructions, 4.11 Assessing
    Testimony (online: https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/?langSwitch=en)
    includes the following instruction:

What was the witnesss manner when he
    or she testified? Do not jump to conclusions, however, based entirely on the
    witnesss manner. Looks can be deceiving. Giving evidence in a trial is not a
    common experience for many witnesses. People react and appear differently.
    Witnesses come from different backgrounds. They have different intellects, abilities,
    values, and life experiences.
There are simply too many variables to make
    the manner in which a witness testifies the only or the most important factor
    in your decision.
[Emphasis added].

See also David Watt,
Watt's
    Manual of Criminal Evidence
, 2nd ed. (Toronto: Thomson
    Reuters, 2015), at p. 268.

[12]

This model instruction is well founded
    both in law and common sense. In

R. v. Rhayel
, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 85, Epstein
    J.A. cited the growing understanding of the fallibility of evaluating
    credibility based on the demeanour of witnesses:

It is now acknowledged that demeanour
    is of limited value because it can be affected by many factors including the
    culture of the witness, stereotypical attitudes, and the artificiality of and
    pressures associated with a courtroom. One of the dangers is that sincerity can
    be and often is misinterpreted as indicating truthfulness.

See also
Law
    Society of Upper Canada v. Neinstein
, 2010 ONCA
    193, 99 O.R. (3d) 1, at para. 66, and
R. v. Hemsworth
, 2016 ONCA 85, [2016] O.J. No. 505, at paras. 44-45.

[13]

In this case the trial judge did not
    provide any assistance to the jury in their consideration of the parties
    demeanour in the assessment of credibility. In fact, the trial judge emphasized
    the Crowns position regarding the complainants demeanour: her testimony had
    the ring of truth; she testified in a manner that was simple and
    straightforward; she appeared to do her best to answer all of the questions. A
    submission based on the failure to instruct the jury on the limitations of such
    evidence in assessing credibility has arguable merit on this record.

[14]

I conclude it appears desirable in the
    interests of justice that the accused should have legal assistance in advancing
    the ground of appeal that the trial judge provided inadequate assistance to the
    jury in the assessment of credibility.

[15]

I turn now briefly to the sentence
    appeal. The appellant proposes to appeal sentence on the basis of alleged
    errors in respect of the trial judges approach to sentencing on the sexual
    assault charge. It does not appear desirable in the interests of justice that
    the appellant should have legal assistance to advance this ground. That is
    because the sentence he received on the sexual assault charge was concurrent to
    his sentence on the sexual assault with a weapon charge. Even if the trial
    judge erred in the manner the appellant alleges, his overall sentence would not
    be affected.

Conclusion

[16]

I direct the appellant to request the Legal
    Aid Committee to reconsider its refusal in light of these reasons. In the event
    the Committee maintains its refusal of legal aid, I order Mr. Hassan be
    assigned counsel for the appellant to advance on the appeal the credibility
    ground only, and that his fees and disbursements be paid by the Attorney General
    on the Legal Aid scale.


"R.G.
    Juriansz J.A."


