



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: S.C. 2014, c. 25, s.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    the victim shall not be published in any document or broadcast or transmitted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. Speers, 2017 ONCA 333

DATE: 20170426

DOCKET: C53889

LaForme, Epstein and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Richard Speers

Appellant

Richard Speers, acting in person

Brian Snell, appearing as duty counsel

Michael Fawcett, for the respondent

Heard: April 3, 2017

On appeal from the conviction entered by Justice Elizabeth
    Quinlan of the Superior Court of Justice, sitting with a jury, on February 17,
    2011.

Epstein J.A.:

[1]

Following a four-day jury trial,
    the appellant, Richard Speers, was convicted of one count of sexual assault. He
    admitted having engaged in sexual touching with the complainant, M.H., on the
    night in question. The only issue for the jury to decide was whether M.H. had consented
    to the sexual activity. M.H. testified. Mr. Speers did not. Three other witnesses
    testified. Although all interacted with M.H. soon after the admitted sexual
    touching, none were in a position to provide any direct evidence on the
    question of consent. Thus, the case essentially came down to M.H.s testimony,
    and the attempts by the defence to attack her credibility during
    cross-examination.

[2]

The argument on appeal focused on
    the jury charge. Duty counsel on behalf of Mr. Speers takes the position that
    the charge to the jury was unfair as it was unbalanced. The trial judge
    summarized the Crowns position over two pages.
The summary focused on
    the Crowns case, and not the frailties exposed during cross-examination.

[3]

The Crowns position is that, in
    the context of this case, particularly given Mr. Speers called no evidence, the
    charge provided the jury with the tools needed to determine the issue of
    consent.

[4]

For the reasons that follow, I
    would dismiss the appeal.

Closing Submissions & Jury Charge

i.

Closing submissions

[5]

As I discuss below, the jury charge should be considered together with
    the parties closing submissions in considering whether the jury was adequately
    instructed on the positions of the parties. As the charge is alleged to be
    unbalanced in favour of the Crown, there is no need to summarize the Crowns
    closing address.

[6]

Defence counsel at trial submitted that the pivotal issue for the jury
    was M.H.s credibility. Cross-examination had revealed M.H. to be dishonest and
    showed that she had embellished, exaggerated, and simply made things up during
    her testimony. Defence counsel pointed to several alleged examples of M.H.s
    wavering in her testimony during cross-examination. It was not believable,
    counsel submitted, that M.H. had thought Mr. Speers weird and tried to avoid
    him before the incident, as she claimed, given the history of their
    interactions. The evidence of the three other witnesses merely showed that
    something had happened in M.H.s room that night that had upset her. They
    provided no evidence that her being upset was because of a sexual assault.

[7]

Finally, defence counsel argued that the photos of the room indicated
    that it was a near physical impossibility for the sexual assault to have occurred
    as described by M.H. Considering M.H.s serious drug addiction and criminal
    record, she was simply not a credible or reliable witness. Based on all the
    evidence, the Crown had not established beyond a reasonable doubt that M.H. had
    been sexually assaulted that night.

ii.

Charge to the jury

[8]

The charge, as a whole, is slightly more than 42 transcript pages long.

[9]

Considering the admission that there had been sexual touching, the trial
    judge charged the jury that in order for there to be a conviction, the Crown
    was required to prove two things beyond a reasonable doubt: 1) that M.H. did
    not consent to the touching; and 2) that Mr. Speers knew that M.H. did not
    consent to the touching.

[10]

At page 29, in discussing the issue of whether M.H. had consented, the
    trial judge summarized M.H.s evidence concerning the issue of consent, as
    follows:

The evidence of M.H. is that on the night in question she had a
    few drinks with Mr. Speers and his friend Chris. Chris left at nine or ten p.m.
    M.H. had enough, and said she was going to bed. Mr. Speers tried to get her to
    stay up, but she did not want to be with him alone. She went to sleep. At
    around midnight she could feel something. She woke up. She saw Mr. Speers
    holding a beer and wearing a red robe. He had his hand in her pants and his
    fingers in her vagina. She said What the fuck are you doing? Get the hell out
    of my room. M.H. testified that she did not consent to the sexual encounter.

[11]

The trial judge charged the jury
    that if they had a reasonable doubt whether M.H. had consented, they must find
    Mr. Speers not guilty. On the other hand, were the jury satisfied beyond a
    reasonable doubt that M.H. had not consented, they must turn to the second
    question  whether Mr. Speers had known that M.H. had not consented. At page 32,
    the trial judge instructed the jury with respect to M.H.s evidence, as
    follows:

The evidence of M.H. is that on the night in question she only
    had a drink to be nice and civil. She was only out in the kitchen area when
    Chris was there. At no time did Richard Speers come into her room to drink beer
    with her. As soon as Chris left, she went to bed because she did not want to be
    alone with Mr. Speers. M.H. went to sleep and woke up to find Mr. Speers
    fingers inside her vagina.

[12]

At this point, at page 33, the trial judge noted that it is Richard
    Speers position that M.H. consented to the sexual activity with him that forms
    the basis of the charge. However, the trial judge did not mention any of the
    arguments defence counsel had advanced in her closing address. The trial judge
    merely noted that the burden was on the Crown to prove beyond a reasonable
    doubt that M.H. had not consented. The trial judge continued to discuss
    consent. At page 34, the trial judge repeated word-for-word the summary of M.H.s
    evidence that she had given at page 29 (see above).

[13]

The trial judge then provided the position of the parties. The following
    five paragraphs are what the trial judge said about the Crowns theory of the
    case:

The Crowns position is that a sexual assault took place. The
    only issue in this case is whether M.H. consented to the accused, Richard
    Speers, touching her vagina. The DNA report that has been filed on consent
    confirms the presence of M.H.s DNA on the accuseds right middle finger. The
    evidence of the sexual assault is the uncontradicted testimony of M.H. Although
    many suggestions were made to her in cross-examination, she did not agree with
    any of those scenarios.

The Crowns position is that it was very clear that M.H. did
    not consent. She had gone to bed because she did not want to be alone with the
    accused. She was in her own room asleep. She woke up because she could feel the
    accuseds fingers inside her vagina. The words she spoke upon waking further
    clearly communicated the absence of any consent. The accuseds reaction by
    repeatedly saying Im sorry and leaving, confirmed that she did not let him
    touch her, and he went ahead and touched her anyway, and he knew that he had
    done wrong. The apology shows that he had done something he felt sorry for, the
    unwanted sexual contact.

Although M.H. had a criminal record, and had at one brief time
    in her life been a user of heroin, these facts alone do not diminish her
    credibility. You can find her to be a reliable witness because she was very
    clear and sincere when she gave her evidence in court. She was obviously still
    distraught about what the accused did to her.

The Crowns position is that her distress and upset was also
    clear on the night that the accused sexually assaulted her. She became sick to her
    stomach. She was observed by her roommate Barry Donnell [sic] to be distressed,
    worried and in tears. M.H. called her aunt, Cynthia Palmer, who said that M.H.
    seemed very distraught and it took a few minutes for her to calm down enough to
    say what had happened. She said she had a tone in her voice that she had never
    heard in her nieces voice before. She sounded very upset and scared.

Constable Sarah Frith arrived shortly after the events in
    question. She observed M.H. to be crying hard. M.H. was wearing a zip-up
    sweater but it was undone. The officer said that M.H.s hands were shaking too
    much to do the zipper up, and so the officer helped her do up the sweater.
    Those observations further serve to confirm that what happened was exactly as M.H.
    told the court. She had been sexually assaulted by the accused.

[14]

The trial judge then summarized the defences theory of the case in the
    following two paragraphs:

The defence takes the position that the alleged sexual assault
    could not have taken place as described by the complainant.

The defence takes the position that the complainant is not
    credible and should not be believed. As such, the Crown has failed to prove its
    case beyond a reasonable doubt and Mr. Speers should be acquitted.

[15]

I note that neither counsel objected
    to the charge.

ANALYSIS

Applicable Legal Principles

[16]

There is considerable jurisprudence from this court on the question of
    unbalanced jury charges. Sharpe J.A. in
R. v. Mahalingan

(2006),
    80 O.R. (3d) 35 (C.A.), at para. 15, acknowledged that there is no simple
    template that can be uniformly applied when instructing a jury and no simple
    formula by which an appellate court can assess the adequacy of a jury charge.
    In
R. v. MacKinnon
(1999), 43 O.R. (3d) 378 (C.A.),
Doherty
J.A
.
explained that what matters is that by the end of the instruction, the
    jury must understand:

1.

the factual
    issues which had to be resolved;

2.

the law to be
    applied to those issues and the evidence;

3.

the positions of
    the parties; and

4.

the evidence
    relevant to the positions taken by the parties on the various issues.

[17]

It is clear that the issue is really a holistic one: is the jury
    sufficiently informed about the case as put forward by the defence?

Principles Applied

i.

Evidence relevant to the positions taken by the parties

[18]

The appellant argues that in this case the charge was deficient in
    relation to the third and fourth factors in
MacKinnon
.


[19]

I deal first with the fourth factor  the evidence relevant to the
    positions taken by the parties on the various issues. At first glance, this
    case might appear to have much in common with
R. v. Li

(2004),
    183 C.C.C. (3d) 48 (Ont. C.A.). There, Borins J.A. held that the trial judge
    had failed to charge the jury in accordance with the fourth requirement from
MacKinnon
.
    Borins J.A. made the following comments, at para. 42:

Having chosen to review the Crown's evidence in substantial
    detail, the trial judge was obliged to provide a similar review of the defence
    evidence in order to maintain an appropriate balance. A trial judge's duty to
    give a jury balanced instructions is based on the need to ensure trial
    fairness. In my view, the trial judge's failure to place the appellant's
    defence and the evidence capable of supporting it before the jury, undermined
    the defence and materially prejudiced the appellant.

[20]

However, in
Li

the accused had testified, and an expert
    witness had also testified on his behalf on the key issue of whether the
    touching had been sexual or medical in nature. Here, Mr. Speers did not
    testify. As previously noted, the three independent witnesses could not provide
    direct evidence on the key issue of consent. Insomuch as they testified that M.H.
    was upset after the incident, their evidence would tend to support her
    accusation, and not his defence. The fact that Mr. Speers did not testify or
    lead evidence distinguishes this case from many of the authorities on
    unbalanced jury charges.

[21]

However, a similar situation is found in
R. v. Belic
, 2011 ONCA
    671, another case in which the appellant neither testified nor led evidence at
    trial. There, the appellant submitted that the trial charge was unfair,
    unbalanced, and prejudicial because the trial judge had emphasized evidence
    favouring the Crown. In rejecting this submission, the court noted, at para.
    22, that: in a case where the accused does not testify and calls no evidence,
    it is almost inevitable that the judge's summary of the evidence as it relates
    to each issue will focus on the evidence led by the Crown.

[22]

Likewise, in
R. v. Zebedee

(2006), 81 O.R. (3d) 583
    (C.A.), the various appellants submitted that in terms of the review of the
    evidence, the charge consisted of a summary of the evidence called by the Crown
    in chief, and failed to review the deficiencies and frailties they had exposed
    during cross-examination. Writing together, LaForme and Moldaver JJ.A. stated,
    at para. 100:

The appellants are correct that the overview of the evidence
    was essentially a summary of the evidence led by the Crown in chief. But that
    is precisely what it was meant to be. The trial judge was not, at this
    juncture, explaining the position of the parties. He was merely alerting the
    jury to the events giving rise to the counts under consideration. That would
    have been apparent to the jury. In our view, there was nothing untoward or
    improper about the format used by the trial judge

[23]

Similar comments were provided by Watt J.A. in
R. v. Stubbs
,
    2013 ONCA 514, 300 C.C.C. (3d) 181, at para 139:

In some cases, evidence that tends to show an accused committed
    an offence far exceeds the evidence to the contrary. A balanced charge does not
    require a trial judge to ignore evidence that implicates an accused. Nor is a
    trial judge obliged to spin a web of exculpatory inferences, turning each piece
    of circumstantial evidence every which way to reveal its every possible inference.
    This proposition is all the more applicable where the defence position appears
    to be that the cumulative effect of all the evidence falls short of proof
    beyond a reasonable doubt. [Citation omitted.]

[24]

In my view, the reasoning of Watt J.A. in
Stubbs
applies here. Mr.
    Speers did not lead any evidence. This was a case where the only issue was
    consent and only one of the parties involved in the admitted sexual touching
    provided evidence on what had occurred. The facts that M.H. was a drug addict
    and had a criminal record, while relevant to her credibility, were not direct
    evidence about whether she had consented to the sexual touching.

[25]

As I see it, the trial judge fulfilled her obligations to the jury in
    summarizing the evidence. I therefore turn to the third factor in
MacKinnon
 the position of the parties.

ii.

The
    position of the parties

[26]

In her instructions, the trial judge spent about four times as long
    providing the Crowns theory of the case as she did providing the defences
    theory of the case. However, according to
R. v. Nelson
, 2014 ONCA 853,
    318 C.C.C. (3d) 476, at para. 47, there is no requirement that the trial judge
    spend the same amount of time reviewing the position of both sides. It is
    sufficient if the substance of the defence position is put to the jury.

[27]

I note that the entire jury charge took less than an hour, and was delivered
    following counsels closing addresses. As stated by Watt J.A. in
Stubbs
,
    at para. 137: it is fundamental that a jury charge does not take place in
    isolation, but in the context of the trial as a whole. Appellate review of the
    adequacy of a jury charge encompasses the closing addresses of counsel. Those
    addresses may fill in some of the gaps, especially of evidentiary references,
    left in the charge.

[28]

In
Zebedee
, LaForme and Moldaver JJ.A acknowledged that the
    trial judge had devoted little time to the position of the appellants in the
    charge to the jury. However, they held that the charge was sufficiently
    detailed in the context of the case, considering the closing address, and that
    fact that the case was not particularly complicated. They stated, at paras.
    105-109:

First, although there were five
    accused and multiple counts, overall, the case was not complicated. Essentially
    it boiled down to the jury's assessment of the complainants' evidence. There
    was virtually no technical evidence and what little there was was easily
    understandable.

Second, the positions of the Crown and defence were
    straightforward and uncomplicated. Indeed, in the charge proper, the trial judge
    spent almost as little time on the Crown's position as he did on the defence.
    The recharge, however, was devoted almost entirely to the defence.



Be that as it may, we cannot stress enough the right, if not
    the duty of trial judges to take a functional approach to jury charges. Yes,
    the trial judge could have provided the jury with more details about the
    defence position, but in the face of five "united front" closing
    addresses by the defence, one could be forgiven for asking: "What would
    have been the point?" By the end of those addresses, we have no doubt that
    the jury could have rhymed off the position of the appellants in their sleep.

In sum, we wish to emphasize that this ground of appeal cannot
    and should not be approached on a "one-size-fits-all" basis. What
    will be adequate in one case may not be in another. Trial judges however, are
    in the best position to gauge how much or how little is required. On appellate
    review, their assessment of the matter should be afforded considerable deference.

[29]

In my view the case most useful in considering this issue is
R. v.
    Pomeroy
, 2008 ONCA 521, 91 O.R. (3d) 261. In
Pomeroy
, the
    appellant had not testified at trial, and essentially relied on the Crown not
    having proven its case beyond a reasonable doubt. In finding the charge to the
    jury sufficient, Weiler J.A. made the following comments, at paras. 115-117:

Appellate courts must adopt a functional approach to reviewing
    jury charges. The purpose of such review is to ensure that juries are properly
     not perfectly  instructed. In conducting an appellate review, the Supreme
    Court emphasizes in
Daley
at para. 57:

The extent to which the evidence must be reviewed "will
    depend on each particular case. The test is one of fairness. The accused is
    entitled to a fair trial and to make full answer and defence. So long as the
    evidence is put to the jury in a manner that will allow it to fully appreciate
    the issues and the defence presented, the charge will be adequate".

The functional approach also requires the appellate court not
    to divorce the jury charge from the greater context of the trial. The comments
    of counsel during their addresses, including comments on legal issues should
    also be considered in assessing whether the charge is adequate: see
Daley
at para. 58. Here, despite its facial imbalance, the trial judge's charge to
    the jury, when considered together with the closing addresses of counsel,
    provided the jury with an appreciation of the factual issues to be resolved,
    the evidence relating to the issues, the proper law to be applied, and the
    positions of the parties.

Conclusion

[30]

As noted in
Zebedee
, the decision of the trial judge on how
    best to structure the jury charge is entitled to deference. Here, as in
Pomeroy
,
    despite its facial imbalance, the trial judge's charge to the jury, when
    considered together with counsels closing submissions, provided the jury with
    an appreciation of the factual issues to be resolved, the evidence relating to
    the issues, the proper law to be applied, and the positions of the parties.

DISPOSITION

[31]

I would therefore dismiss the appeal.

Released: April 26, 2017
    (GE)

Gloria Epstein J.A.

I agree. H.S. LaForme J.A.

I agree. Grant Huscroft J.A.


