



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)      any of the following offences;

(i)       an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212,
    213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii)      an offence under section 144 (rape), 145
    (attempt to commit rape), 149 (indecent assault on female), 156 (indecent
    assault on male) or 245 (common assault) or subsection 246(1) (assault with
    intent) of the
Criminal Code
, chapter C-34 of the Revised Statutes of
    Canada, 1970, as it read immediately before January 4, 1983, or

(iii)     an offence under subsection 146(1)
    (sexual intercourse with a female under 14) or (2) (sexual intercourse with a
    female between 14 and 16) or section 151 (seduction of a female between 16 and
    18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality),
    157 (gross indecency), 166 (parent or guardian procuring defilement) or 167
    (householder permitting defilement) of the
Criminal Code
, chapter C-34
    of the Revised Statutes of Canada, 1970, as it read immediately before January
    1, 1988; or

(b)      two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in any of
    subparagraphs (a)(i) to (iii).

(2)      In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

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

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

(3)      In proceedings in respect of an offence
    under section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)      An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. H.B., 2016 ONCA 953

DATE: 20161216

DOCKET: C59960

Gillese, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

H.B.

Appellant

Ravin Pillay, for the appellant

Christopher Chorney, for the respondent

Heard: September 13, 2016

On appeal from the conviction entered on October 6, 2014
    by Justice John McDermott of the Superior Court of Justice, sitting with a
    jury.

Gillese J.A.:

[1]

Following a jury trial, H.B. (the appellant) was convicted of sexual
    assault, sexual interference and invitation to sexual touching for incidents
    involving his step-daughter (T or the complainant). The offences were
    alleged to have occurred between 2008 and 2012, when T was between 11 and 14
    years of age and living with her mother (L), her sister, and the appellant. 
    The appellant was sentenced to four and a half years in prison.

[2]

He appeals against conviction alone.

BACKGROUND IN BRIEF

[3]

Two witnesses testified for the Crown: the complainant and Police Constable
    Ryan Kimens, the investigating officer.  L (the complainants mother) was not
    called by either side.  The appellant did not testify and the defence elected
    not to call evidence.

[4]

T testified that there were up to ten occurrences of abuse but she could
    specifically recall five particular incidents.  The five incidents can be
    summarized as follows:

·

on two separate occasions, the appellant fondled her breasts over
    her clothing;

·

the appellant called her into the hallway and exposed his penis
    to her;

·

on another occasion, the appellant came into the living room and
    sat down beside her, while wearing only a bathrobe.  He exposed his penis to
    her and asked her to rub it up and down. After about 10 seconds a white sticky
    substance came out of his penis onto her hands; and

·

on a different occasion, the appellant went into Ts bedroom,
    pushed her onto the bed, removed her shirt and fondled her breasts. He removed
    her pants and underwear, penetrated her vagina with his fingers and then
    inserted his penis into her vagina for around 10 seconds.

[5]

Part of Ts testimony was that she had disclosed some of the abuse to
    her mother but her mother told her not to report it to the police or the
    Childrens Aid Society (CAS) because she and her sister would be taken from their
    home and put into foster care.  T testified that one of the times that she told
    her mother about the abuse was before the CAS visited the home because of an
    incident of domestic violence which occurred on March 18, 2012.

[6]

At trial, the defence strategy was to portray T as having fabricated the
    allegations because she did not like the appellant and wanted him out of the
    home.

[7]

In his appeal against conviction, the appellant raises three grounds of
    appeal.  The grounds of appeal are based on: (1) the admission at trial of
    evidence of the appellants prior discreditable conduct; (2) the admission of
    PC Kimenss evidence of Ls demeanour; and (3) the corrective instruction that
    the trial judge gave about comments made by defence counsel in closing
    submissions (the Impugned Instruction).  The factual background for each
    ground of appeal follows.

A.

The
    Discreditable Conduct Evidence

[8]

At the outset of trial, the Crown brought an application to adduce
    evidence of discreditable conduct on the part of the appellant that:

(a)

showed he was abusive towards L;

(b)

he assaulted L on March 18, 2012, T overheard the assault, and the
    assault resulted in a criminal conviction for the appellant and his removal
    from the home; and

(c)

he assaulted L on another occasion which T actually observed.

[9]

The defence was willing to permit T to testify as to her observations on
    March 18, 2012, but objected to the admission of the balance of the
    discreditable conduct evidence.

[10]

The trial judge found that the prejudicial effect of the discreditable
    conduct evidence outweighed its probative value.  He ruled that, with one
    exception, neither the Crown nor the defence could lead evidence of the
    discreditable conduct.  The one exception was that the Crown was permitted to
    lead evidence, through T, of her perceptions of the March 18, 2012 incident,
    but not of police involvement or the conviction arising from that incident.  I
    will refer to this as the original ruling.

[11]

During cross-examination, defence counsel made a number of suggestions
    to T, with which she agreed, to the effect that the appellant had never been
    physically violent or threatening towards T or her sister and that L would not
    tolerate the appellant acting like that toward her children.

[12]

At one point, defence counsel was cross-examining T about some incidents
    which she said were minor.  She said that in those incidents the appellant was
    hugging and kissing me.  He didnt go as far as the other ones.  The
    following question and answer then took place:

Q.

Okay.  So, its
    hugging, so, for you, when you say, minor, what, it didnt bother you as
    much, is that what youre saying?

A.

No, not as much, no,
    cause he got arrested, durin the March break.

[13]

Shortly afterwards, defence counsel asked if the court might recess
    early for the lunch break as there was a point he wished to discuss in the
    jurys absence.  The trial judge excused the jury for the lunch recess.  He
    then asked defence counsel what he wished to raise and defence counsel
    indicated that he was concerned because T let it slip out about the arrest of
    March.  The trial judge and counsel then discussed the matter and how it might
    be handled.

[14]

When the jury returned after lunch, they gave the trial judge two
    questions.  The first question read as follows:

In March 2012, why was CAS called/what was the complaint?  Why
    was [HB] arrested?  Defence stopped [T].  Was it related to this case?  Defence
    said [HB] was not violent, so, why was he arrested?

[15]

Based on Ts slip and the first jury question, defence counsel sought a
    mistrial.  The trial judge refused to grant it, saying that Ts statement about
    the appellants arrest arose from defence cross-examination.  Instead, the
    trial judge instructed the jury that the issue of the arrest was unrelated to
    the case and not relevant to the charges before the court.  He told the jury to
    disregard the reference to the arrest and to not speculate as to what might
    have led to the arrest being made.

[16]

Defence counsel then continued cross-examining T for the balance of the
    day and court adjourned for the weekend.

[17]

When court resumed on Monday morning, Crown counsel brought an
    application to re-open her motion in respect of the appellants discreditable
    conduct. The Crowns position was that defence counsels cross-examination of T
    had put his good character in issue and changed the landscape.  She submitted
    that the questions indicating that the appellant had never assaulted or
    threatened T or her sister and that L would not have permitted the appellant to
    show any violence towards her daughters suggested to the jury that the
    appellant was not a violent man.

[18]

The trial judge accepted the Crowns submission.  Relying on
R. v. Adams
, [1995] 4 S.C.R. 707, he found
    that there had been a material change in circumstances which empowered him to
    vary his earlier ruling.  He viewed the material change in circumstances to
    have resulted from the questions that defence counsel put to T in
    cross-examination about the appellants propensity to violence.  The trial
    judge stated that the jurys question, which included a statement that the [d]efence
    said [the appellant] was not violent, made the change in circumstances
    apparent.

[19]

The trial judge ruled that the Crown could re-examine T only on issues
    raised by the defence on cross-examination.  He acknowledged that the Crown had
    agreed to limit the scope of questioning on re-examination to the March 18,
    2012 incident and ruled:

Therefore, Crown counsel is permitted proper re-examination questioning
    on any propensity to violence respecting the children as well as the issue of
    why [L] did not remove [the appellant] from the home, again, only considering
    the incident of March 18, 2012.

[20]

The trial judge then told the jury that he had made a ruling as a result
    of their first question which meant that there might be certain questions asked
    of T about the March 18, 2012 incident, both in cross-examination and
    re-examination, to provide context and assist in the trial narrative.  He
    instructed the jury that they could only use the evidence to assess credibility
    and to assess the facts of the case.  He stressed that the evidence could not
    be used to conclude that the appellant was the type of person who would be
    likely to commit the offences with which he had been charged.

[21]

In re-examination, T indicated that a few days after the appellants
    arrest for the March 18, 2012 incident, the appellant started living with them
    again and she asked her mother why she stayed with the appellant.  T responded
    that her mother said she didnt have much choice and she was afraid of what he
    might do to [them].

[22]

In his charge to the jury, the trial judge again instructed the jury on
    this matter, saying:

As I advised you during the trial, the evidence was permitted
    to allow you to understand what [T] thought occurred on March 18, 2012 and to
    understand, in part, the reasons why [L] may not have removed [H.B.] from the
    home.  You cannot use the evidence of the arrest, however, to determine that
    [H.B.] was violent, or of bad character, or to find that he was the type of
    person who would be disposed to commit the type of offences with which he has
    been charged.

B.

PC
    Kimenss Evidence

[23]

T testified that on January 4, 2013, she had a verbal altercation with
    the appellant about what L was making her for dinner. The altercation ended
    with T telling the appellant to mind his own business and the appellant
    threatening to cut off Ts mobile phone access.  T was upset and went to her
    room.  After some time passed, she called the CAS, despite L having told her
    not to do this on a previous occasion when T told her of the abuse.

[24]

A CAS worker and two police officers  one of whom was PC Kimens  went
    to the home to pick up T for questioning at the police station.  The appellant,
    L, a family friend and the two children were at the home.  PC Kimens spoke to L
    privately about Ts allegations.  In examination in chief, he testified:

A.

I explained to [L]
    briefly about the allegation that we had received from CAS about [the appellant]
    inappropriately touching [T].  Her reaction was, was not surprise.

Q.

What do you mean? 
    Please explain that.

A.

There was no real
    change in her demeanour, protesting, or, facial expressions, and, in my
    experience, as a police officer....

[25]

At that point, defence counsel objected and submissions were made in the
    absence of the jury and the witness.

[26]

Defence counsel did not object to PC Kimens testifying about his observations
    of Ls demeanour.  His objection was to PC Kimens expressing an opinion about
    Ls demeanour based on his experience as a police officer in the unit that
    deals with crimes against children.

[27]

The trial judge allowed the question to be answered.

[28]

When the jury returned, PC Kimens was asked to continue with his
    answer.  He said:

Based on my experience, as a police officer, when telling
    others of allegations of this nature theres usually a reaction, whether it be
    rage, denial, um, but, again, what I noticed was, was the fact that there was
    no real surprised look, and that struck me as odd.

[29]

PC Kimens then testified that he explained to L the role of the police when
    they receive information of this kind and the steps that would follow  both
    children would be taken that evening to the York Regional Police building in
    Aurora because that facility enabled the police to videotape conversations and
    interviews.  He told L the location of the police building and that she was
    free to attend if she wished.

[30]

PC Kimens testified that L asked if the children would be returning and
    he told her that he was not able to answer that but he could tell her that they
    would be going with the CAS.  The next question and answer were as follows:

Q.

Did [Ls] demeanour
    change at all during the course of this interaction that you had with her?

A.

No. And, again, in, in
    harkening to my experience, in that, there werent a lot of questions. 
    Normally, when an allegation of that nature is brought out, people have a lot
    of questions in terms of the specifics and what next.

[31]

He further testified that he told L that she could attend at the police
    station but L declined to do so.

[32]

PC Kimens also testified that after T and her sister had been taken to
    the police station and interviewed, he telephoned L and told her that he needed
    to interview her.  He said that he was surprised that L did not want to go to
    the police station that evening (Saturday), for the interview.  As PC Kimens
    was not available on Sunday, L went for the interview on Monday.

[33]

Defence counsel cross-examined PC Kimens extensively on his demeanour
    observations.  The officer admitted that he had no special training, education
    or expertise in psychology, human conduct or facial expressions, and he readily
    agreed with the suggestion that people react to shocking news in different
    ways.

[34]

In her closing submissions, Crown counsel referred to PC Kimenss
    testimony that when he told L of Ts allegations, L had no change in her facial
    expression and that her lack of reaction to being told that her partner was
    abusing her daughter struck him as odd.  She said:

I would submit that Officer Kimens[s] evidence is significant,
    as it suggests that [Ls] purpose, throughout the police investigation, was to
    conceal the truth, and to prevent the authorities from learning the truth.  Her
    conduct on January 4
th
to January 7
th
of 2013, in my
    respectful submission, is consistent with [Ts] evidence surrounding [Ls]
    words and actions throughout the years that [T] describes having been abused,
    years that her mother knew about the ongoing abuse.



I submit to you, that the only logical conclusion that you can
    draw from the evidence you have heard is that [L] already knew about the abuse,
    because [T] had told her.



I would submit theres no other explanation for [Ls] conduct
    in this matter, conduct which is reprehensible, conduct which cannot be
    condoned.  As I mentioned earlier, [Ls] conduct was a failure to protect her
    own daughter from harm, and based on [Ts] evidence, which is, again,
    uncontroverted, and uncontradicted, [L] told [T] not to tell anyone so she
    wouldnt get in trouble.

[35]

In his closing submissions, defence counsel argued that little weight
    should be attached to PC Kimenss evidence about Ls demeanour on learning of
    the allegations that the appellant had sexually assaulted T.  He also referred
    to Ts evidence about her mothers caring and loving conduct toward her and her
    sister and that her mother was protective of her daughters and would want to
    ensure that they were safe.  He urged the jury to accept that such a caring and
    loving mother would not tolerate the abuse if it had been disclosed to her.

[W]hy would this mother who loves her daughters in every sense
    of what a loving mother would, tolerate such behaviour from [H.B.]?  She would
    prefer the abuses to continue then to have her children in foster care?  Does
    that make sense to you?



We have heard that in an eight year relationship with [L],
    [H.B.] has never threatened, or assaulted [T], or [Ts sister], and, according
    to [Ts] own evidence, he would not do it because he would get in trouble with
    mom.



If [L] would not tolerate that physical abuse, how could [L] tolerate
    the sexual abuses which would be considered more abhorrent?  Does that make
    sense?

[36]

In his charge, the trial judge instructed the jury about the closing
    submissions of the Crown and defence counsel, saying:

Crown counsel spoke of [Ts] evidence that she had told [L]
    about at least one of the alleged incidents, and stated that [T] was
    essentially betrayed by her mothers failure to advise her to go to the
    police.  Defence counsel spoke extensively about the fact that [L] was not
    called as a witness to corroborate [Ts] evidence.  He also mentioned that
    there was evidence that [L] was a good mother, and asked why she would fail to
    protect her daughter under the circumstances.



Firstly, I would note that although defence counsel can comment
    on the failure of the Crown to call [L] as a witness, or ask you to consider
    why the Crown did not call her as a witness, this does not mean that the Crown
    was, in any way, obligated to call [L] as a witness.



And what of the suggestion that [Ls] evidence would or would
    not corroborate the evidence of [T]?  That suggestion calls for speculation as
    to what [L] may or may not say in evidence.  As I have noted, she was not
    called as a witness.

Although you may infer certain facts from the evidence, you are
    not permitted to speculate on what a witness might say, were he or she called
    to the stand.



You are permitted to infer [Ls] role in this matter from the
    evidence of both Officer Kimens and [T], taking into account all of the
    circumstances of this case, but only so far as that evidence is relevant to the
    issues before you.

C.

The
    Impugned Instruction

[37]

The trial judge gave corrective instructions in relation to the closing addresses
    of both the Crown and the defence.  The appellant complains that the
    differences in the nature of the corrective instructions caused him prejudice. 
    The missteps by each counsel and the trial judges corrective instructions
    follow.

[38]

In her closing address, Crown counsel misstated a point of law.  She
    said:

When considering defence counsels submissions on [Ts] motive
    to fabricate, know that the law recognizes that allegations of sexual abuse,
    made by children of tender years, bear a special stamp of reliability and that
    children are unlikely to concoct, but because they are, generally, not adept at
    reasoned reflection, or, at fabricating tales of abuse, theyre unlikely to use
    their reflective powers to concoct a deliberate untruth.

[39]

In his charge, the trial judge gave the jury the following corrective
    instruction:

You also heard Crown counsel, during her closing address, state
    the proposition that because [T] was a child when the alleged offences
    occurred, that when she gave her testimony her evidence had, what Crown counsel
    referred to as the, stamp of reliability.

There is no legal rule that evidence at trial from a child has
    any greater reliability than that of any adult witness, or that because the
    evidence came from a child, the evidence has some sort of special reliability
    on its own.  Crown counsel has argued that this childs evidence is reliable
    because she, as a child witness, may be less likely to fabricate evidence
    because of her age.  This is not, however, a legal rule.  Legally, you may not
    attribute to the evidence of [T] any sort of increased reliability.  You must
    treat her evidence as you would treat the evidence of any other witness,
    however, taking into account her age, the evidence itself, and the other
    factors that Ive mentioned elsewhere in this charge and previously.

[40]

In his closing address, defence counsel made two comments to the jury to
    which the Crown took exception.

[41]

The first comment was that the complainant had been coached.  Defence
    counsel said:

We know [T] had an internet boyfriend when she was 11.  We know
    she was internet savvy enough to find a boyfriend, and when she had this
    boyfriend shes not above scheming and lying, because when confronted with
    this, at first, by her mom, she lied to her mom, and she admitted she lied to
    her mom.  Now, the Crown tried to, well, re-examined her on this issue, and
    tried to sort of rehabilitate this part of her evidence, and she says, Yeah,
    you know, I lied just, if only to receive a benefit.  Im not sure if somehow
    that makes any of this better, but, lets examine that.  First of all, it
    sounds almost like a legal answer, so, you have to wonder was she ever coached
    in regards to that answer.

[42]

The second comment was that the prosecution had accepted Ts version of
    events because it had tunnel vision and blinders on.  Defence counsel said
    this:

And, again, I was saying the lack of corroboration is a
    disturbing aspect of this case.  How could a mother who loved her children in
    every respect allow such abuses to continue?  The simple answer is this: is
    that the abuses never happened.  [L] never saw any abuses, and [T] never
    reported any to her mom.  From [Ts] own evidence, her mom would not tolerate
    any physical abuse from [H.B.] against her children.  If she would not tolerate
    that physical abuse, how could she tolerate the sexual abuses which would be
    considered more abhorrent?  Does that make any sense?  But, the prosecution
    cannot see this possibility, or the simple answer, because it has bought [Ts]
    story hook, line, and sinker.  They cannot see the possibility that exists that
    [L] never witnessed the abuses and that [T] never reported them to her mom.  In
    legal circles, we call that, tunnel vision.  In laymen terms, you may have
    heard its called, having blinders on.  And that is the reason it has taken
    the effort, the tortured evidence of Officer Kimens, to support its case, just
    twisting it.

[43]

The Crown immediately raised concerns about both sets of comments, saying
    that they were an attack on her personal and professional integrity.

[44]

The trial judge discussed the first comment with counsel and defence
    counsel agreed to retract it.  When the jury returned, defence counsel told them
    that the comment that T had been coached was not meant to impugn Crown counsel,
    either personally or professionally.  Shortly thereafter, court adjourned for
    the day.

[45]

Crown counsel reviewed the court recording that night and the following
    day she raised the propriety of the second comment, saying that it, too, had impugned
    her integrity.

[46]

The trial judge agreed and gave the jury the Impugned Instruction before
    defence counsel continued with his closing submissions:

Youll recall, ladies and gentlemen, that there was a statement
    made by [defence counsel] during his final address yesterday regarding some
    implication by, made by him, that Crown counsel had influenced [T] prior to her
    giving an answer to a question in testimony.  He apologized for this statement
    and confirmed that he had not intended it as a personal attack on the Crown and
    confirmed, as well, that there was no intention to impugn the behavior of the
    prosecution in this matter.

There were, as well, ladies and gentlemen, several other
    statements made by defence counsel in his closing argument.  These were with
    regard to the issue of whether there was another explanation for [Ts]
    evidence.

[Defence counsel] said several things.  He said that the
    prosecution had bought [Ts] story, hook, line, and sinker.  He said that the
    prosecution had, blinders on, with regard to whether they considered another
    version of events as might have been corroborated by [L].

He said that, in legal circles we call it, tunnel vision.  Counsel
    further stated that this was the reason that the prosecution took efforts to,
    torture the evidence, torture the evidence of Officer Kimens for this case
    or to, twist, his evidence.

Im [going to] let you know, Crown, that theres no [question]
    that defence counsel is entitled to vigorously present his case, and his
    clients case to the jury during his address.  The court is not a tea party, or
    a social outing.  It is a tough forum where counsel are entitled to strenuously
    present a case of his or her client to the jury.

As part of this, defence counsel is entitled to attack the
    credibility of Crown witnesses, or question why a witness might not have been
    called by the Crown.  That being said, statements, such as those described, may
    be interpreted as an attack on the integrity of both Crown, the Crown-prosecutor,
    as well as the investigating officer.  These comments appear to have the
    cumulative effect of doing so.  They are outside of the rules and should not
    have been said.

You are to ignore those comments in your deliberations.  [Defence
    counsel] will make no further comments of a similar nature as he concludes his
    address to you.

THE GROUNDS OF APPEAL

[47]

The appellant raises three grounds of appeal.  He submits that the trial
    judge erred:

1.

in permitting the Crown to re-examine T regarding the appellants prior
    discreditable conduct against L on March 18, 2012;

2.

in permitting the Crown to introduce evidence of Ls demeanour and PC
    Kimenss opinion of it, and in his instructions to the jury on the permissible
    use of that evidence; and

3.

by allegedly undermining defence counsel before the jury through the Impugned
    Instruction.

GROUND #1

THE DISCREDITABLE CONDUCT
    EVIDENCE

[48]

The appellant submits that the trial judge erred in permitting the Crown
    to re-examine T about the incident leading to the appellants arrest on March
    18, 2012.  The appellant makes two arguments in support of this submission.  I
    accept neither.

A.  The First Argument

[49]

The appellant first argues that the trial judge should not have viewed
    the jurys first question as evidence that the appellant was holding himself
    out as a non-violent individual.  He contends that the questions which defence
    counsel posed when cross-examining T did not amount to a general assertion of
    the appellants good character.  Rather, they were limited to whether T had
    observed the appellant act violently towards her or her sister.  The appellant further
    submits that even if the questions put on cross-examination constituted a
    material change in circumstances, the prejudicial effect of Ts evidence about
    the March 18, 2012 incident outweighed its probative value.

[50]

This argument is a challenge both to the trial judges right to
    reconsider his original ruling and the ruling flowing from that reconsideration
    (the later ruling).  Neither challenge can succeed.

[51]

A trial judge can vary or revoke any order relating to the conduct of a
    trial if the circumstances that were present at the time the order was made have
    materially changed:
Adams
, at para. 30. 
    The trial judge found that defence counsels questioning of T led to a material
    change in circumstances because it raised the risk that the jury would be left
    with a distorted view of: (i) whether the appellant was a violent person; and
    (ii) the complainants home life, including whether her mother would have
    permitted the appellant to remain in the home if T had told her of the alleged
    sexual abuse.  Thus, given the material change in circumstances, the trial
    judge was entitled to reconsider his original ruling on the appellants prior
    discreditable conduct.

[52]

The appellants challenge to the validity of the later ruling also
    fails.  This court must accord a high degree of deference to the trial judges
    decision to admit the discreditable conduct evidence:
R. v. Pasqualino
, 2008 ONCA 554, 233 C.C.C.
    (3d) 319, at paras. 22-23.  I see no basis on which to interfere with the trial
    judges decision.

[53]

Correcting a potential distortion of this type is a valid ground for
    admitting evidence of discreditable conduct:
R.
    v. Batte
(2000), 49 O.R. (3d) 321 (C.A.), at para. 89.

[54]

Moreover, the later ruling allowed only a narrow expansion of the scope
    of discreditable conduct evidence permitted by the original ruling.  It will be
    recalled that the original ruling precluded counsel from leading evidence of
    the appellants prior discreditable conduct subject to one exception: the Crown
    was permitted to lead evidence, through T, of her perceptions of the March 18,
    2012 incident.  That exception was necessary to the narrative of the case so
    that T could explain a previous encounter with CAS and her mothers
    instructions at that time not to report the abuse by the appellant.

[55]

The trial judge carefully crafted his later ruling to expand the scope
    of admissible discreditable conduct evidence only so far as was necessary to
    correct the distortion created by defence counsels cross-examination of T
    which suggested to the jury  as they indicated by their first question  that
    he was not a violent person and that L would have removed him from the home had
    he harmed one of her children. The later ruling struck an appropriate balance
    between the probative value of the discreditable conduct evidence and its
    prejudicial effect.  In this regard, it is to be noted that there were other
    allegations of more egregious abuse and general evidence of abuse that was not
    admitted.

[56]

Finally, I note that the trial judge gave an appropriate limiting
    instruction in respect of this evidence, both mid-trial and in his final charge
    to the jury.  Those instructions are set out above in the background to this
    ground of appeal so need not be repeated.

B.  The Second Argument

[57]

The appellants second argument is that the Crown was obliged to object
    to the questions at the time that defence counsel put them to T and, having
    failed to do so, the Crown was not entitled to ask the trial judge to revisit
    his original ruling.

[58]

I do not accept this argument.

[59]

Defence counsels questions were not, in themselves, objectionable.  They
    were proper questions and they did not violate the original ruling.  They did,
    however, result in evidence being put before the jury that, while admissible,
    left the jury with a distorted view of the matter of violence in the home and
    what L might have done in the face of the appellant harming her children.  The Crown
    was entitled to address the situation by asking the judge to reconsider his original
    ruling and correct that distortion.

[60]

The appellant relies on three authorities as support for his second
    argument:
R. v. Kutynec
(1992), 7 O.R.
    (3d) 277 (C.A.);
R. v. Gundy
, 2008 ONCA
    284, 231 C.C.C. (3d) 26; and
R. v. Enden
,
    2007 SKCA 100, 304 Sask. R. 283.

[61]

None of these cases assist the appellant.
Kutynec
deals with the appropriate procedures
    to be used by an accused person when bringing an application to exclude
    evidence under s. 24(2) of the
Canadian Charter
    of Rights and Freedoms
.  In
Gundy
, Rosenberg J.A. held that
    defence counsels s. 24(2)
Charter
argument
    made during closing submissions  one month after the close of the Crowns case
     came too late.  And
Enden
was
    concerned with the sufficiency of a trial judges reasons.

[62]

Accordingly, I would dismiss this ground of appeal.

GROUND
#2    PC KIMENSS TESTIMONY

[63]

This ground of appeal is based on two aspects of
    PC Kimenss testimony: his observations of Ls reaction to being told of Ts
    allegations against the appellant (the demeanour evidence) and his opinion
    about Ls reaction.  The appellant makes four inter-related arguments on this
    ground of appeal.

A.

The First Argument

[64]

First, relying on
R. v. Badgerow
,
    2014 ONCA 272, 119 O.R. (3d) 399, leave to appeal refused, [2014] 3 S.C.R. v, the
    appellant argues that the demeanour evidence was implied hearsay by conduct
    and, therefore, presumptively inadmissible.  Had the Crown wished to introduce
    it, the appellant maintains that the Crown was required to bring an application
    after which the court had to conduct a principled analysis to determine whether
    its probative value exceeded its prejudicial effect.

(1)

R. v. Graat

[65]

In my view,
R. v. Graat
,
    [1982] 2 S.C.R. 819, is determinative of the first argument.  However, because
Graat

is also critical to a
    determination of the third argument on this ground of appeal, I pause now to
    discuss
Graat

in some detail.

[66]

In
Graat
, the accused was convicted of driving a motor vehicle while
    impaired by alcohol.  At trial, the two police officers who stopped the car
    that the accused was driving gave their opinions on whether the accuseds
    ability to drive was impaired by alcohol.  The appeal to the Supreme Court of
    Canada depended on the admissibility of that opinion evidence.

[67]

Dickson J., as he then was, writing for the court,
    began by canvassing the Canadian jurisprudence on lay opinion evidence as well
    as that of England, Ireland, Northern Ireland, Australia, and New Zealand. 
    Thereafter, he examined the leading texts and the recommendations of various
    Canadian law reform commissions on the matter.

[68]

Dickson J. then drew a series of conclusions on
    the admissibility of lay opinion evidence.  For the purposes of this appeal, I
    would highlight three, which can be found at pp. 835-37 of
Graat
.

[69]

First, there is a lengthy list of recognized
    subjects upon which lay witnesses are allowed to express opinions.  He set out
    the following non-exhaustive list:


i.

the identification of handwriting, persons and things;


ii.

apparent age;


iii.

the bodily plight or condition of a person, including death and illness;


iv.

the emotional state of a person 
e.g.
whether distressed, angry, aggressive, affectionate or depressed;


v.

the condition of things 
e.g.
worn, shabby, used or new;


vi.

certain questions of value; and


vii.

estimates of speed and distance.

[70]

Second, removing the artificial and frequently
    false distinction between fact and opinion permits the witness to provide a
    more accurate impression of the events the witness seeks to describe.  Dickson
    J. summed this up by saying, at p. 837:

I can see no reason in principle or in common
    sense why a lay witness should not be permitted to testify in the form of an
    opinion if, by doing so, he is able more accurately to express the facts he
    perceived.

[71]

Third, the admissibility of lay opinion evidence
    is to be determined first by asking whether the evidence sought to be admitted
    is relevant, a matter of applying logic and experience to the circumstances of
    the particular case, and then determining whether the evidence must be excluded
    by a clear ground of policy or law.

[72]

Dickson J. held that the opinion evidence in
    question was admissible because:  it was relevant; its probative value was not
    outweighed by policy considerations; the police officers had personally
    observed the accused; their opinion evidence did not decide the ultimate issue;
    and, the trier of fact could accept all, part or none of their evidence (at p.
    836).

[73]

Dickson J. then addressed the appellants
    submission that the opinion evidence was superfluous, irrelevant and
    inadmissible (at p. 837). He flatly rejected this submission.  He also flatly
    rejected the suggestion that it was testimony that called for an expert, saying
    that the opinion in question was not a matter for which scientific, technical
    or specialized knowledge was necessary.  Rather, he said, it was a matter which
    the modern jury could intelligently resolve on the basis of common ordinary
    knowledge and experience.  Consequently, the guidance of an expert was
    unnecessary (at pp. 837-38).

[74]

In my view, in determining whether the trial judge erred in
    admitting the demeanour evidence, this court need not go further than to refer
    to the list in
Graat
, reproduced above.
    That list sets out accepted categories
upon which lay
    witnesses are allowed to express opinions.  Item (iv) of that list is
evidence of the emotional state of a person 
e.g
. whether [a person
    was] distressed, angry, aggressive, affectionate or depressed.

[75]

The demeanour evidence in this case was PC Kimenss opinion of Ls
    observable emotional state on being told of the allegations T had made against
    the appellant.  Because the demeanour evidence falls squarely within list item
    (iv) in
Graat
, it was admissible.

(2)

Cases Relied on by the Appellant

[76]

Furthermore, the cases that the appellant relies
    on as support for the proposition that demeanour evidence generally ought not
    to be admissible do not apply.  He points to:
R. v. T.E
.
, 2007 ONCA 891;
R. v. Levert
(2001), 159 C.C.C. (3d) 71 (Ont. C.A.); and
R. v. Baltrusaitis
(2002),
    58 O.R. (3d) 161 (C.A.).

[77]

Those cases relate to
an accused persons
    demeanour.  That is not what is in question in this case.  PC Kimenss evidence
    was not about H.B.s demeanour.  Rather, it was about the demeanour of L, the
    complainants mother.

(3)

Demeanour Evidence is not Implied Hearsay

[78]

Finally, I do not accept
the appellants
    submission that the demeanour evidence is implied hearsay by conduct.

[79]

At para. 106 of
Badgerow
, this court explains that, although hearsay typically consists of
    spoken words, it can consist of conduct.  Such conduct can be of two types: 
    assertive and non-assertive.

[80]

Assertive conduct refers to non-verbal conduct
    that is intended as an assertion.  Examples of assertive conduct include
    nodding the head (indicating yes) and pointing to someone or something. 
    Assertive conduct is conduct that is tendered in evidence to prove the truth of
    an assertion (
Badgerow
, at para. 107).

[81]

Non-assertive conduct describes conduct, whether
    by words or deeds or both, from which the trier is asked to infer a statement
    based on the declarants belief (
Badgerow
,
    at para. 109).

[82]

It is clear that the demeanour evidence is not
    assertive conduct.  A persons facial expression (or, in this case, non-expression)
    is not non-verbal conduct like a nod of the head or pointing at something.

[83]

Nor was the demeanour evidence hearsay by
    non-assertive conduct.

[84]

The demeanour evidence, standing on its own, had
    relevance to the chronology and narrative of T revealing her allegations to the
    authorities.  As
a matter of logic and human experience, Ls reaction on
    being told of the allegations was relevant to whether she had prior knowledge
    of the allegations her daughter made.  If L had prior knowledge of those allegations,
    that supported Ts credibility.  Thus, in combination with other evidence, it
    was open to the Crown to
ask the jury to draw an inference
    that L already knew of the abuse, consistent with Ts testimony.  Simply
    because the Crown asked the jury to draw an inference from the demeanour evidence
    does not render that evidence an implied statement of belief adduced for the
    truth of its contents.

[85]

For the reasons revealed by defence counsels
    cross-examination of PC Kimens, the Crowns desired inference was only one of
    many possible explanations for Ls lack of facial expression.  PC Kimens
    readily agreed that people react to shocking news in different ways.  Ls lack
    of expression cannot simply be reduced to an implied statement that she knew of
    the abuse, although that inference was available to the jury.  Rather, there
    was a range of inferences that could be drawn from this aspect of the narrative.

[86]

It was open to the defence to argue, as it did,
    that Ls demeanour was inconsistent with prior knowledge of the abuse because:  L
    was confronted in the middle of the night with allegations that were difficult
    to register; people react differently to surprising news; she was processing
    information that did not fit with her perception of the appellant, with whom
    she had been in a relationship for eight years; and she knew her daughters
    character.

[87]

The demeanour evidence was some circumstantial
    evidence from which the jury could draw inferences either consistent with Ls
    knowledge of the abuse or inconsistent with such knowledge.  The defence at
    trial articulated its concerns with the demeanour evidence as a matter of
    weight and not admissibility.  The defence then used that circumstantial
    evidence to fit within its theory of the case.  The demeanour evidence was not
    hearsay any more than was Ts evidence, in cross-examination, of past
    protective and nurturing acts by L, from which the defence requested an
    inference that L did not know of and would not have tolerated the abuse.

[88]

I would simply conclude on this argument by
    noting that, at trial, defence counsel expressly conceded that PC Kimens was
    entitled to give the demeanour evidence.

B.

The Second Argument

[89]

Second, the appellant argues, for a variety of
    reasons, that it was improper for the Crown to lead the demeanour evidence and
    not call L as a witness.  One of the reasons advanced by the appellant for this
    argument is that it enabled the Crown to evade the rule in
Browne v.
    Dunn
(1893), 6 R. 67 (H.L.).
That rule, the appellant
    says, would have required the Crown to put to L the theory that she had reacted
    without emotion to being told about Ts allegations against the appellant
    because she was already aware of the misconduct.  The appellant also complains
    that t
he trial judge should have commented on the Crowns failure to
    call L as a witness.

[90]

I see nothing in this argument.

[91]

The Supreme Court held in
R. v. Cook
, [1997] 1 S.C.R. 1113, at para. 55, that the Crown does not have a
    duty to call all material witnesses.  Therefore, there was nothing improper in
    the Crowns strategic choice not to call L.

[92]

Furthermore,
the trial judge made no
    error in his instructions to the jury on this matter.  He observed that although
    L was not called as a witness at trial, both counsel referred to her
    extensively during their respective closing addresses.  The trial judge then
    specifically instructed the jury that defence counsel could both comment on the
    failure of the Crown to call L as a witness and invite the jury to consider why
    the Crown had not called her as a witness.  However, he also explained that this
    did not mean that the Crown was obligated to call L as a witness.  The trial
    judge then correctly instructed the jury on corroboration and told them that
    they were not to speculate as to what L might have testified to, had she been
    called as a witness.

C.

The Third Argument

[93]

Third, the appellant argues that PC Kimens
    should not have been permitted to offer his opinion about Ls demeanour.

[94]

For the reasons that follow, I would not give
    effect to this argument.

[95]

I begin by considering this argument in the
    trial context.

[96]

At trial,
defence counsel objected to PC
    Kimens being allowed to express an opinion about Ls reaction, but the basis
    for his objection is not clear.  When the trial judge asked him for the reason,
    defence counsel said:

Your Honour, from her questioning it appears the area shes
    going into is, what is his experience as a police officer when he advises
    parents of this kind of nature, this conduct, and what, what the normal
    reaction may be.  Im not sure thats appropriate.  Maybe thats an area of an
    expert in terms of, I mean, for you to say, I mean, his experience, obviously,
    is not encompassing of all officers experience, human, hes not an, sorry, an
    expert in human psychology, human behaviour, human conduct, Your Honour, for
    him .

[97]

When Crown counsel was invited to respond to the objection, she
    said that it appeared that defence counsel was taking the position that this type
    of evidence had to be given by an expert.

[98]

However, when the trial judge heard from defence counsel in reply
    on this point, defence counsel did not pursue the objection based on the notion
    that it required expert evidence.  He simply pointed to the fact that PC Kimens
    had only been with the unit dealing with crimes against children for about two
    months when he went to the complainants home on January 4, 2013.

[99]

In the absence of an identifiable legal basis for the objection,
    the trial judge then ruled that PC Kimens could answer the question that had
    been posed  that is, that he could offer his opinion about Ls reaction.

[100]

I next consider the cases to which the appellant points in support
    of this argument:
R. v. Quazi
, 2014 ONCA 94;
and
R. v. J.F.
(2006), 210 C.C.C.
    (3d) 405 (Ont. C.A.).
These cases do not assist him.

[101]

In
Quazi
, this court held that a
    police officers opinion that the accuseds demeanour during his police
    interview was indicative of guilt,
was irrelevant and therefore
    inadmissible
.  In
J.F.
, a mother testified that she believed her daughters when they
    disclosed sexual abuse to her.
This court held that the evidence was
    inadmissible because it offended the rule against oath-helping and was
    irrelevant.

[102]

In
    the present case,
PC Kimenss opinion evidence did not relate
    to the accused (as was the case in
Quazi
) nor
    did it contain an expression about whether PC Kimens believed T (as was the
    case in
J.F
.
).

[103]

Graat
,
    on the other hand, does provide assistance in determining whether the trial
    judge erred in permitting PC Kimens to offer his opinion on Ls demeanour.  As
    we have seen, in
Graat
, the Supreme
    Court explained that the admissibility of lay opinion evidence must be
    determined using appropriate legal principles:

Admissibility is determined, first, by asking whether the
    evidence sought to be admitted is relevant.  This is a matter of applying logic
    and experience to the circumstances of the particular case. The question which
    must then be asked is whether, though probative, the evidence must be excluded
    by a clear ground of policy or of law.

[104]

In accordance
    with
Graat
,
in my view, the trial
    judge should have determined whether PC Kimenss opinion evidence was relevant
    and, if so, whether its probative value was outweighed by such policy
    considerations as [the] danger of confusing the issues or misleading the jury. 
    This would include an assessment of whether the probative value of that
    evidence was outweighed by the prejudicial effect of its admission.

[105]

Had the trial
    judge performed such an assessment, because of the highly subjective nature of
    the evidence, he might well have exercised his discretion to exclude it on the
    basis that the prejudicial effect of the evidence outweighed its probative
    value.

[106]

That said, in my
    view, the admission and use of the impugned evidence in this case did not
    impair a fair trial.  I say this for two reasons.

[107]

First,
    the impugned evidence was very limited.  T
he full extent of PC
    Kimenss opinion evidence is the following:

A.

Based on my experience, as a police officer, when telling others of
    allegations of this nature theres usually a reaction, whether it be rage,
    denial, um, but, again, what I noticed was, was the fact that there was no real
    surprised look, and
that struck me as
    odd
.  [Emphasis added.]



Q.

Did [Ls] demeanour change at all during the course of this
    interaction that you had with her?

A.

No. And, again, in, in harkening to my experience, in that, there
    werent a lot of questions.
Normally,
    when an allegation of that nature is brought out, people have a lot of
    questions in terms of the specifics and what next.
[Emphasis added.]

[108]

Second, I see no
    basis for believing that the jury would have attached undue weight to the
    impugned evidence.  The defences effective and thorough
cross-examination
    of PC Kimens served to diminish its weight and any prejudice that the opinion
    evidence might have occasioned.  Through that cross-examination, it was clearly
    demonstrated that PC Kimens had no special training in psychology, human
    emotions or facial expressions, and he readily admitted that people react to
    shocking news in different ways.  It also exposed the
limits of PC
    Kimenss experience and education in forming his opinion, which served to
    address the policy consideration identified in
Graat
,
    namely, that the evidence might mislead the jury.

[109]

For these
    reasons, I would not give effect to the appellants third argument.

D.

The Fourth Argument

[110]

Fourth, the appellant argues that the trial judge erred in his
    instructions to
the jury on the permissible use of the demeanour evidence. 
    He says that the Crowns closing address improperly invited the jury to find
    that the demeanour evidence corroborated Ts evidence and that the trial judge
    erred by failing to tell the jury that it could not serve as corroboration.

[111]

I
    see no error in the trial judges instructions in this regard.

[112]

It
    is important to place in context the Crowns remarks in her closing address
    about the demeanour evidence.  In each of their closing addresses,
the Crown and defence counsel invited the jury to draw inferences
    based on L, even though she had not been called as a witness.  While the Crown
    invited the jury to find that the demeanour evidence corroborated Ts evidence
    that she had told her mother of some of the abuse, defence counsel relied on
    Ls caring behavior for her daughters to suggest that the jury draw the
    inference that as a good and loving mother, L would not have known of the abuse
    and allowed it to continue.

[113]

Defence counsel did not challenge, before the trial judge, the
    Crowns suggestion that the demeanour evidence corroborated Ts testimony that
    she had told her mother of some of the abuse.  Indeed, neither counsel argued
    to the trial judge that the others inferences were unreasonable or speculative
    and therefore required a corrective instruction.

[114]

Furthermore, as already noted, the trial judge gave proper
    instructions on corroboration, reasonable inferences and impermissible
    speculation, with particular regard to the evidence concerning L.  It was for
    the jury to decide whether they could draw the inference that L already knew of
    the sexual abuse at the time PC Kimens disclosed it to her and, if so, what
    weight to attach to that inference.

GROUND #3

THE IMPUGNED INSTRUCTION

[115]

The appellant
    submits that the trial judge treated defence counsel harshly in the Impugned Instruction
    but did not treat Crown counsel harshly for committing similar errors. In so
    doing, the appellant contends, the trial judge diminished defence counsels
    standing before the jury and prejudiced the appellant.

[116]

I see nothing in
    this submission.  The errors that each counsel made were markedly different in
    nature and number, and called for different types of corrective instructions.

[117]

The trial
    judges instruction on Crown counsels single misstatement of the law was both measured
    and appropriate.

[118]

So, too, was his
    corrective instruction regarding defence counsels multiple comments.  It is
    impermissible for defence counsel to impugn Crown counsels integrity in the
    course of closing submissions:
R. v. Trakas
,
    2008 ONCA 410, 233 C.C.C. (3d) 172, at para. 32.  It was for the trial judge to
    consider the defence comments in the context of the entire trial to determine how
    the jury would perceive those comments, and to determine the appropriate remedy
    if those comments were found to have risked distracting the jury from its task
    of determining the charges before the court (
Trakas
,
    at para. 33).

[119]

In any event,
    there is nothing to support the appellants submission that the differences in
    the wording of the two corrective instructions in any way prejudiced the jury
    against the appellant.

DISPOSITION

[120]

For these
    reasons, I would dismiss the appeal.

E.E. Gillese J.A.

I agree. Paul Rouleau J.A.


Brown J.A. (Concurring):

I.        Overview

[121]

I
    concur with my colleague that the appeal should be dismissed. I agree with my
    colleagues
analysis and disposition of Grounds 1 and 3
    concerning the re-examination of the complainant on the appellants prior
    discreditable conduct and the Impugned Instruction. As to Ground 2  the
    evidence of PC Kimens  I respectfully cannot agree with parts of my
    colleagues analysis.

[122]

Ground 2 concerns the Crowns introduction through PC Kimens of
    evidence about how the complainants mother reacted when the police told her
    about her daughters allegations against the appellant. The officer gave two
    distinct, but highly inter-related, pieces of evidence. First, PC Kimens
    testified the mothers reaction was not surprise, there was no real change
    in her demeanour (the demeanour evidence).
Defence counsel did not
    object to the admission of that evidence.

[123]

PC
    Kimens then started to express a view about the lack of change in the mothers
    demeanour based on his experience as a police officer. The defence objected.
    The Crown submitted the officer was entitled to give his interpretation of her
    demeanour. The trial judge recognized the issue in play was whether the
    mothers reaction was a normal reaction. He allowed the question, holding
    that this is a question that could be answered, frankly, by anyone who was
    confronting someone with an allegation of this sort.

[124]

PC
    Kimens then
testified that based on his experience as a police
    officer, the fact that there was no real surprised lookstruck me as odd
(the
    departure from the norm evidence).

[125]

In
    her closing to the jury, Crown counsel described PC Kimens evidence as
    significant and crucial. His evidence that the mothers demeanour did not
    change on being told of the allegations and her odd reaction tended to
    corroborate the complainants evidence that she had told her mother about the
    abuse shortly after it happened and her mother knew about the ongoing abuse.

[126]

My colleague concludes, in effect, that the trial judge did not err
    in admitting either PC Kimens demeanour evidence or his departure from the
    norm evidence. I agree with my colleagues treatment of the implied hearsay
    issue and of the
Browne
    v. Dunn
issue. I also agree with my colleague
    that the
admissibility of PC Kimens demeanour and departure from the
    norm evidence fell to be determined pursuant to the principles set out
in
R. v. Graat
, [1982] 2 S.C.R. 819, at p. 835
.

[127]

The
    appellant did not object to the admission of the demeanour evidence. However,
    in considering the appellants objection to the admissibility of PC Kimens
    departure from the norm evidence, the trial judge did not conduct a
Graat
analysis. In failing to do so, he
    committed an error of law.

[128]

As
    my colleague points out, at para. 105 of her reasons, had the trial judge
    performed such an assessment, he might well have excluded what I have termed
    the departure from the norm evidence. However, he admitted it. In my view,
    admitting the departure of the norm evidence was an error in light of the use
    the Crown proposed to make of it.

[129]

Notwithstanding
    that error of law, I am persuaded that
no substantial wrong or
    miscarriage of justice occurred because of the instructions the trial judge
    gave in his charge
. As a result, I would dismiss the appeal.

II.       Analysis

[130]

Ground 2 calls
    for a consideration of the scope and use of lay opinion evidence. The law of
    evidence has long recognized that lay witnesses may give opinion evidence in
    certain circumstances. In the original edition of their evidence text published
    less than a decade before the
Graat
decision, Sopinka and Lederman wrote that to rule certain inferences made by a
    lay witness inadmissible would conflict with the natural mental processes
    which translate a mans perception into words. So, with respect to matters of
    common experience, a lay witness will be allowed to express an opinion if he
    possesses personal knowledge of the facts upon which that opinion is based:
    John Sopinka and Sidney N. Lederman,
The Law of
    Evidence in Civil Cases
(Toronto: Butterworth & Co. (Canada) Ltd.,
    1974), at pp. 299  301.

[131]

The
Graat
case considered the admissibility of
    evidence from police officers that a persons ability to drive was impaired by
    alcohol, based on the officers observations of the persons manner of driving
    and indicia of intoxication. The Supreme Court recalled the law of evidence
    permits the non-expert witness to give opinion evidence on certain subjects,
    including the emotional state of a person  e.g. whether a person appeared
    distressed, angry, aggressive, affectionate or depressed: p. 835.

[132]

In
Graat
, the Supreme Court took the view that
    such opinion evidence was an abbreviated version of the witnesses factual
    observations or a compendious statement of facts admissible, in part,
    because it may be difficult for the witness to narrate his factual
    observations individually: at pp. 837  840. In the case of a lay opinion about
    the degree of intoxication of a driver, the court also adopted the
    jurisprudence that the driving of motor vehicles had become a matter of
    everyday experience for ordinary people: at p. 839.

[133]

Graat
anchored the admissibility of opinion
    evidence given by a non-expert witness in broad principles, stating, at p. 835:

Admissibility is determined, first, by asking whether the
    evidence sought to be admitted is relevant. This is a matter of applying logic
    and experience to the circumstances of the particular case. The question which
    must then be asked is whether, though probative, the evidence must be excluded
    by a clear ground of policy or of law.

[134]

The practical
    consequence of this more principled approach to the admission of lay opinion
    evidence is summarized in
Alan W. Bryant, Sidney N. Lederman
    and Michelle K. Fuerst,
Sopinka, Lederman & Bryant  The Law of Evidence in Canada
,
Fourth Edition (Toronto: LexisNexis,
    2014)

at §12.14:

Courts now have greater freedom to receive lay
    witnesses opinions if: (1) the witness has personal knowledge of observed
    facts; (2) the witness is in a better position than the trier of fact to draw
    the inference; (3) the witness has the necessary experiential capacity to draw
    the inference; that is, form the opinion; and (4) the opinion is a compendious
    mode of speaking and the witness could not as accurately, adequately and with
    reasonable facility describe the facts she or he is testifying about. But as
    such evidence approaches the central issues that the courts must decide, one
    can still expect an insistence that the witnesses stick to the primary facts
    and refrain from giving their inferences. It is always a matter of degree. As
    the testimony shades towards a legal conclusion, resistance to admissibility
    develops.

[135]

Although the law
    of evidence is open to admitting lay opinion evidence about the demeanour of
    another person, it increasingly has become cautious about the use to which such
    evidence may be put. In three cases, this court has sounded a warning about
    using evidence of an accuseds demeanour as evidence indicative of guilt.

[136]

In
R. v. Levert

(2001),
150 O.A.C. 208, 159
    C.C.C. (3d) 71
(C.A.), the Crown adduced evidence about the accuseds
    reaction when confronted with allegations of sexual touching of the minor
    complainant. The gist of the evidence was that the accused was very, very,
    very calm. Rosenberg J.A. expressed grave concerns about the admissibility of
    such evidence when the Crown sought to use the accuseds reaction as evidence
    of consciousness of guilt. He observed the probative value of that type of
    evidence is highly suspect and should be admitted at a criminal trial with
    caution because perceptions of guilt based on demeanour are likely to depend
    upon highly subjective impressions that may be difficult to convey to the jury
    and in any event the significance of the reaction will often be equivocal.

[137]

In
R. v. Trotta

(2004
), 191 O.A.C. 322,
190 C.C.C. (3d) 199
(C.A.), this court recognized the probative value of demeanour evidence
is, in many circumstances,

more apparent
    than real
 because it
assumes there is a normal range
    of reaction to highly stressful situations applicable to all individual
s
    and
that outward appearance accurately reflects an
    individuals state of mind or emotional state
: para. 40. As put by
    Doherty J.A. at para. 41:

Evidence of demeanour offered
    as evidence indicative of a state of mind must be received with caution
...
The circumstances surrounding the proffered evidence must be
    such as to make that evidence sufficiently unambiguous and demonstrative of a
    relevant state of mind so as to overcome concerns that a trier of fact may too
    easily equate what is perceived to be an unusual reaction with a guilty mind.
    [Emphasis added].

[138]

Finally, in
R.
    v. Quazi
, 2014 ONCA 94, [2014] O.J. No. 495,
    this court held the trial judge should not have permitted the jury to hear the
    opinion of a police officer who characterized the appellants demeanour during
    his police interview as indicative of guilt. This court held, at para. 7, that
    [s]uch an opinion was irrelevant and should not have been permitted. Its
    intrusion into the trial record was highly prejudicial and contributed to the
    overall unfairness of the appellants trial.

[139]

In
R. v. White
, 2011 SCC 13,
[2011]
    1 S.C.R. 433,
the Supreme Court of Canada stressed the highly
    problematic nature of evidence of an accuseds demeanour. At paras. 75 and 76,
    Rothstein J., writing for the majority, described the 
hallmark
    flaws associated with demeanour evidence that may so seriously taint the
    evidence that it becomes irrelevant
:

Such hallmark flaws are generally associated
    with evidence in the form of a witness's impression of the accused's mental or
    emotional state (e.g. appeared calm or nervous), as inferred by the witness
    from the accused's outward appearance or behaviour. The accused's mental or
    emotional state is then submitted as suspect and probative of guilt


A problem with such evidence is that the
    inferential link between the witness's perception of the accused's behaviour
    and the accused's mental state can be tenuous
.
The
    witness's assessment depends on a subjective impression and interpretation of
    the accused's behaviour

Moreover, it appears to
    involve an element of mind reading

Additionally,
    insofar as the witness is inferring the accused's state of mind from the
    accused's outward appearance, there may be a legitimate concern that this is
    inadmissible lay opinion evidence. This is to be contrasted with evidence of
    objective conduct that allows the jury to draw its own inferences about the
    accused's state of mind.

[140]

In her concurring reasons Charron J., at para. 107, agreed that
    inferences drawn by a witness, based on his or her observation of the accuseds
    demeanour, may well call for a special caution or be subject to an exclusion
    order in accordance with these principles. Binnie J. echoed similar concerns
in his dissent: paras. 141  142.

[141]

Unlike
White, Levert, Trotta and Quazi
, the present
    case does not involve evidence about an accuseds demeanour and the inferences
    one can draw from it about the accuseds state of mind. Here, the use of the
    evidence against the accused is more indirect. The Crown urged the jury to use
    PC Kimens opinion of the mothers odd reaction when informed of the
    allegations against the appellant as evidence supporting the complainants
    credibility  i.e. the mothers odd reaction confirmed the complainant had
    disclosed ongoing abuse by the appellant to her mother.

[142]

Nevertheless,
    the line of reasoning employed by the Crown in respect of PC Kimens departure
    from the norm evidence suffers from the same hallmark flaws as those
    associated with inferences drawn from demeanour evidence about an accused. The
    dangers of such evidence and inferences are the same in both cases: a witnesss
assessment of a persons state of mind or knowledge depends on
    a subjective impression and interpretation of the persons behaviour. As put by
    Rothstein J. in
White
, such reasoning appears to involve an element of
    mind-reading. In my view,
mind-reading remains mind-reading, whether the
    object of observation is the accused or some other person.

[143]

PC Kimens
    evidence about the mothers reaction to the allegation of sexual abuse against
    the appellant  that it was not surprise  perhaps was his compendious way of
    expressing the mothers appearance and, as such, admissible lay opinion
    evidence. However, his testimony that the mothers reaction was odd was
more akin to an editorial comment on how far the mothers demeanour
    departed from the expected reaction of a normal person.

How
a person reacts to allegations of
    sexual abuse made against another family member is not a matter of common or
    everyday experience, the primary basis for the admission of lay opinion
    evidence. Nor did PC Kimens possess a wealth of experience in observing or
    assessing such reactions, unlike the emergency room physician in
Trotta
who had a great deal of experience observing parents who brought their young
    children to the hospital.

[144]

Parenthetically, it strikes me that to the extent one relies on the
    special experience or training of a person as a basis for admission of his or
    her opinion, one is moving into the realm of expert opinion evidence, thereby
    bringing into play the standard factors governing the admissibility of that
    type of evidence.

[145]

The
    tenuous probative value of PC Kimens departure from the norm evidence was
    vastly outweighed by its prejudicial effect. His
evidence
    about the mothers odd reaction amounted to nothing more than irrelevant
    mind reading by the police officer
of the mothers state of knowledge
    about any abuse by the appellant of the complainant. The trial judge should not
    have admitted it.

[146]

Notwithstanding
    that error of law, the use the jury could make of PC Kimens demeanour and
    departure from the norm evidence about the complainants mother was the subject
    of extensive discussion at the pre-charge conference. In the result, the trial
    judge repeatedly instructed the jury not to speculate about what the
    complainants mother might have said had she testified, and he specifically
    instructed the jury they could not speculate about whether she might or might
    not corroborate [the complainants] evidence. He also reiterated that
    counsels submissions did not constitute evidence for them to consider.

[147]

Those
    instructions in the charge adequately mitigated the prejudice caused by
    improperly admitting the departure from the norm evidence given by PC Kimens.
    As a result, I am satisfied that notwithstanding the trial judges error of
    law,
no substantial wrong or miscarriage of justice occurred:
Criminal Code
s. 686(1)(b)(iii)
.

[148]

Accordingly, I
    agree with my colleague that the appeal should be dismissed.

Released: December 16, 2016 (E.E.G.)

David Brown J.A.


