



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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




WARNING

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

An order restricting
    publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5),
    (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal
    Code
shall continue. These sections of the
Criminal Code
provide:

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    the victim or witness shall not be published in any document or broadcast or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

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    participant shall not be published in any document or broadcast or transmitted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

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

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

(b) a terrorism offence;

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

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

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

(4)     An applicant for
    an order shall

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) the contents of an
    application;

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

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

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

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




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. 539(1), (2), (3) or (4) of the
Criminal
    Code
shall continue.
    These sections of the
Criminal Code
provide:

539(1)          Prior to
    the commencement of the taking of evidence at a preliminary inquiry, the
    justice holding the inquiry

(a) may, if application
    therefor is made by the prosecutor, and

(b) shall, if application therefor is
    made by any of the accused,

make an order directing that the evidence
    taken at the inquiry shall not be published in any document or broadcast or
    transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged; or

(d) if he or she is ordered to stand
    trial, the trial is ended.

(2)     Where an accused
    is not represented by counsel at a preliminary inquiry, the justice holding the
    inquiry shall, prior to the commencement of the taking of evidence at the
    inquiry, inform the accused of his right to make application under subsection
    (1).

(3)     Everyone who
    fails to comply with an order made pursuant to subsection (1) is guilty of an
    offence punishable on summary conviction

(4)      [Repealed,
    2005, c. 32, s. 18(2).]

R.S., 1985, c. C-46, s.
    539; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. MacKenzie, 2020 ONCA 646

DATE: 20201019

DOCKET: C67166

Doherty, van Rensburg and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan MacKenzie

Appellant

Chris Sewrattan and Ashley Sewrattan,
    for the appellant

Lorna Bolton, for the respondent

Heard: October 1, 2020 by video conference

On appeal from a conviction entered on
    May 3, 2019 by Justice James R.H. Turnbull of the Superior Court of Justice, sitting
    with a jury.

Doherty J.A.:


I



[1]

The appellant was convicted by a jury of sexual
    assault. He appeals conviction only.

[2]

The appellant advances two grounds of appeal.
    First, he submits his right to a fair trial was fatally compromised by several
    improper submissions made by Crown counsel in his closing address and by the
    trial judges failure to give the necessary correcting instructions. Second, the
    appellant submits the trial judges response to a question posed by the jury
    during its deliberations was wrong in law. He argues the trial judges response
    improperly narrowed the basis upon which the jury could be left with a
    reasonable doubt by excluding the possibility of a doubt based on the absence
    of evidence.

[3]

For the reasons that follow, I would reject both
    submissions and dismiss the appeal.


II



[4]

The complainant, R.W., and K.M. were good friends.
    Around midnight on June 16, 2017, K.M. invited R.W. over to her residence to
    party with K.M. and her new boyfriend, C.L. R.W. decided to go over to her
    friends house. She had been drinking before she left home. The drinking
    continued after she arrived at K.M.s.

[5]

In the early morning hours, K.M. spoke with the appellant
    and invited him to come over to pick up some of his belongings. K.M. and the
    appellant had previously dated. Apparently, the break-up had been difficult.
    R.W. knew the appellant through her friendship with K.M.

[6]

The drinking and partying continued after the
    appellant arrived. K.M. became very intoxicated and, according to her,
    eventually blacked out. R.W. described herself as heavily intoxicated.

[7]

C.L., who was not feeling well, did not drink as
    much as the others. He decided to go upstairs to bed around 5:30 a.m. After
    C.L. went upstairs, K.M. and the appellant began to make out. They had been
    flirting earlier in the evening. K.M. was very drunk.

[8]

According to R.W., when she saw K.M. and the
    appellant making out, she went upstairs to get C.L. He came downstairs and
    took K.M. up to the bedroom with him, leaving R.W. and the appellant
    downstairs.

[9]

Neither R.W., nor the appellant, had shown any
    sexual interest in the other that night or at any other time. R.W. turned on a
    movie. She and the appellant watched the movie and had one or two drinks. R.W.
    fell asleep on a loveseat. The appellant was sitting on a couch in the same
    room.

[10]

R.W. awoke sometime later, to find herself on
    her knees, facing the back of the loveseat. Her upper body was positioned on
    the loveseat. Her pants were down, exposing her buttocks.

[11]

R.W. was initially confused. It took her some
    time to realize the appellant was behind her, trying to force his penis into
    her vagina. R.W. repeatedly said no and started to cry. Over the next several
    minutes, the appellant continued to attempt to force his penis into R.W. She
    cried out for help.

[12]

C.L., who was sleeping upstairs with K.M., heard
    the scream. He went downstairs to find R.W. on her knees facing the loveseat
    with the appellant kneeling behind her. R.W.s pants were down and she was
    crying. The appellant was making thrusting motions, consistent with an effort
    to have sexual intercourse with R.W. When the appellant saw C.L., he moved away
    from R.W. and put his penis back into his pants. C.L. demanded to know what was
    happening and told the appellant to leave. When the appellant refused, C.L.
    called the police.

[13]

The appellant was arrested and taken to the
    police station. He told the police he recalled falling asleep on the couch. When
    he awoke, K.M. was on the floor next to the couch crying. R.W. was also on the
    floor crying. The appellant said he had no recollection of what happened, but repeatedly
    denied ever having any sexual contact with R.W. The appellant told the police
    R.W. was not sufficiently attractive for him to have had any sexual interest in
    her. He suggested R.W. may have touched him while he was sleeping.

[14]

At trial, the appellant testified and told a
    very different story. He admitted he had repeatedly lied to the police in his
    statement.

[15]

In his testimony, the appellant indicated after
    C.L. took K.M. upstairs, he and R.W. had another drink and put on a movie. He
    passed out on the couch. The appellant woke up to find R.W. lying on the couch beside
    him, facing away from him. She was pressing her buttocks into his crotch. R.W.s
    pants were a little bit down. The appellant said her name, but R.W. did not
    respond. The appellant, without saying anything more, pulled R.W.s pants and
    underwear down and unbuttoned his pants, exposing his penis. He then made
    thrusting motions toward R.W., attempting to insert his penis into her vagina.
    He did not know if he succeeded. According to the appellant, R.W. made noises,
    which the appellant interpreted as an indication she was enjoying his efforts
    to have sex with her.

[16]

The appellant testified R.W. continued to grind
    her buttocks into his penis for some 10 or 15 minutes. After one particularly strong
    thrust by the appellant, R.W. rolled off the couch onto the floor. The
    appellant asked her if she wanted to stop and she said yes. He immediately
    pulled up his pants and sat on the couch. C.L. arrived in the living room from
    upstairs and asked what was going on. R.W. started to cry. C.L. told the
    appellant to leave and he refused. He told C.L. he had consensual sex with R.W.
    A short time later, the police arrived and arrested the appellant.

[17]

At trial, with the agreement of counsel, the
    trial judge put two defences to the jury. He instructed the jury it must
    acquit the appellant unless the Crown proved beyond a reasonable doubt R.W. had
    not consented to the sexual activity. The trial judge also instructed the jury it
    must acquit unless the Crown proved beyond a reasonable doubt the appellant was
    not under the mistaken belief R.W. had consented to the sexual activity. On
    appeal, counsel for both the appellant and the Crown agree the defence of
    honest mistaken belief in consent was legally unavailable. The evidence gave no
    air of reality to a claim the appellant had taken reasonable steps in the
    circumstances known to him to determine whether R.W. was consenting to the
    sexual activity:
Criminal Code
, s. 273.2(b).

the grounds of appeal

A.

the crowns closing argument

[18]

Counsel in closing argument to a jury cannot
    make submissions that are unavailable as a matter of law, or on the evidence.
    Nor can counsel misstate the evidence or the law. On occasion, counsel, usually
    unintentionally, fall into one or more of those errors. When they do, the trial
    judge may be required to provide a timely and focused correction. If counsels
    allegedly improper submissions become a ground of appeal, it falls to this
    court to decide whether those submissions, considered beside any correction
    provided by the trial judge, and in the context of the entire trial, resulted
    in a miscarriage of justice: see
R. v. Boudreau
, 2012 ONCA 830, at
    paras. 14-20;
R. v. L.(L.)
(2009), 96 O.R. (3d) 412, at paras. 50-54.

[19]

Before turning to the appellants specific
    submissions, it is also important to acknowledge the limits specifically
    imposed on Crown counsel in closing argument. While Crown counsel should firmly
    and fairly advance the case for the Crown, Crown counsel must do so in a
    measured manner, avoiding comments or behaviour that could be taken as inflammatory
    or an invitation to the jury to decide the case based on emotion or the
    personal opinion of Crown counsel:
R. v. Daley
, 1992 O.J. No. 1504;
R.
    v. L.(L.)
, at paras. 55-57.

[20]

The trial judge was satisfied some of Crown
    counsels comments and his demeanour during parts of his closing address went
    beyond the kind of advocacy expected of the Crown. He told the jury so, in no
    uncertain terms. The trial judge firmly admonished the jury to approach the
    evidence dispassionately and without emotion, bearing in mind counsels
    personal opinions were irrelevant. This instruction ensured the improprieties
    in Crown counsels closing, identified by the trial judge, would not negatively
    impact on the fairness of the trial. The appellant does not suggest the trial
    judge did not adequately deal with this facet of Crown counsels closing.

[21]

The appellant contends, however, apart from the
    concerns identified by the trial judge, Crown counsel made four improper
    submissions which should have been addressed and specifically remedied by the
    trial judge. The appellant submits Crown counsel improperly:

·

told the jury it could acquit only if satisfied
    R.W., K.M., and C.L. were lying, or alternatively invited the jury to decide
    the case by choosing between the competing versions of events;

·

invited the jury to find R.W. had no motive to
    fabricate and to use the appellants failure to prove R.W. had a motive to
    fabricate to confirm her credibility;

·

gave evidence about the effects of alcohol
    consumption on human behaviour; and

·

invited the jury to use the appellants presence
    at trial when R.W. testified to make an adverse finding with respect to the appellants
    credibility.

(i)

Did the Crown improperly invite the jury to
    reach a verdict after an either/or determination of the credibility of the competing
    versions of events?

[22]

A jury cannot determine guilt simply by deciding
    which of two competing versions of the relevant events it believes. An accused
    must be acquitted if the jury has a reasonable doubt on any of the essential
    elements of the offence, even if the jury does not believe the accuseds
    version of events:
R. v. W.(D.)
(1991), 63 C.C.C. (3d) 397;
R. v.
    O.M.
, 2014 ONCA 503, at para. 42.

[23]

The appellant accepts the trial judge correctly
    instructed the jury on how it should approach the appellants evidence in the
    context of applying the burden of proof. The trial judge followed the well known,
    three-step approach in
W.(D.)
:

If you believe Ryan MacKenzies evidence that
    he did not commit the offence charged, you must find him not guilty. If, after
    a careful consideration of all the evidence, you are unable to decide who to
    believe, you must find Ryan MacKenzie not guilty, because Crown counsel would
    have failed to prove Ryan MacKenzies guilt beyond a reasonable doubt. And even
    if you dont believe Ryan MacKenzies evidence, if it leaves you with a
    reasonable doubt about his guilt, or about an essential element of the offence
    charged, you must find him not guilty of sexual assault, and even if Ryan
    MacKenzies evidence does not leave you with a reasonable doubt of his guilt or
    about an essential element of the offence charged, you may only convict him if
    the rest of the evidence that you do accept, proves his guilt of the offence
    beyond a reasonable doubt. I will repeat that to you again tomorrow, just
    before you go to the jury room.

[24]

As he had promised, the trial judge repeated
    this instruction near the end of his instructions.

[25]

The appellant argues Crown counsels submissions
    invited the jury to take a different approach than the one described by the
    trial judge. The appellant contends fairness required the trial judge to specifically
    identify and correct the improper submission made by the Crown.

[26]

I reject this submission for two reasons. First,
    the trial judge told the jury, on more than one occasion, to take instructions
    on legal matters, like the burden of proof, from him only. If Crown counsels
    submission could be understood as advocating a different approach to the burden
    of proof, I see no reason to conclude the jury would disregard the trial
    judges instructions and follow the Crowns suggested approach.

[27]

Second, and more importantly, Crown counsel did
    not invite the jury to decide the case by choosing between the evidence of the
    appellant and the conflicting evidence of the Crown witnesses. To the contrary,
    Crown counsel specifically told the jury it must acquit the appellant, even if it
    did not believe him, unless the Crown proved his guilt beyond a reasonable
    doubt. In his closing, Crown counsel used the same language from
R. v.
    W.(D.)
, as did the trial judge, in explaining the application of the
    burden of proof to the appellants evidence.

[28]

It is true Crown counsel forcefully urged the
    jury to disbelieve the appellants evidence. Crown counsel offered a variety of
    reasons for rejecting his evidence. In the impugned passage, Crown counsel argued
    the appellants evidence should be rejected because it conflicted with the
    evidence of other witnesses, particularly R.W. and C.L., who the Crown urged
    the jury to find were credible.

[29]

I see nothing wrong with the argument advanced
    by the Crown. The credibility of any individual witness, including the accused,
    must, of necessity, be assessed having regard to all of the relevant evidence
    and the jurys evaluation of the credibility of evidence given by other
    witnesses:
R. v. O.M.
, at para. 45.

[30]

Crown counsel did not invite the jury to reach its
    verdict by choosing between competing versions of events. Instead, counsel
    urged the jury to disbelieve the appellants evidence, for several reasons,
    including what the Crown argued was the presence of cogent conflicting evidence
    from other credible witnesses. On the Crowns argument, the appellant could be
    believed only if the others were disbelieved. For example, Crown counsel said:

You cannot believe Ryan [the appellant]. You
    cannot. Cause if you believe him, then as a matter of logic you have to be
    forced to believe that K.M., C.L. and R.W. were all lying to you, with this
    perfectly crafted story, some conspiracy to make Ryan pay for no real reason,
    common to all three of them. Yes, Ryan, everyones out to get you.

[31]

Although disbelief of the appellant, on its own,
    could not justify a conviction, and the Crown never suggested it could, the
    jury could not possibly convict the appellant if they did not disbelieve him.
    Not surprisingly, Crown counsel strenuously argued the jury should disbelieve
    the appellant for a variety of reasons, including the presence of conflicting
    evidence from other credible witnesses. In making this argument, Crown counsel neither
    suggested disbelief of the appellant equated with guilt, nor invited the jury
    to decide the case by choosing between competing versions of events.

(ii)

Did Crown counsel invite the jury to find R.W.
    had no motive to fabricate, and did he invite the jury to find the appellants
    failure to prove R.W. had a motive to fabricate was confirmatory of her
    credibility?

[32]

In his closing address, Crown counsel referred
    to the defence contention, R.W. was not merely mistaken or unreliable, but was
    deliberately lying about the relevant events. The Crown submitted to the jury, absent
    any evidence of a motive to lie, the jury should reject the defence argument. Crown
    counsel said:

In Ryans [the appellants] version, R.W. is
    not remembering it wrong, shes not mistaken, shes full on lying to you. You
    have to accept that. Do you? You need a real reason to conclude this. You cant
    speculate or conclude that people just do things for no reason. I, Ive talked
    about this. Theres just no ring of truth to the idea she just likes to make
    criminal allegations and submit to sex assault kits for fun.

[33]

Crown counsel then turned to the two possible motives
    to fabricate put forward by the defence. He argued neither made sense and
    neither had support in the evidence. In advancing this argument, Crown counsel
    was not purporting to instruct the jury on the law as it relates to a witnesss
    motive. Instead, he was making submissions to the jury challenging the merits
    of the defense position that R.W. had motives to fabricate the allegation
    against the appellant. The Crown argued there was no evidence R.W. had a motive
    to fabricate and, as a matter of common sense and human experience, the jury
    could conclude R.W. would not fabricate a serious allegation against the
    appellant if she had no reason for doing so.

[34]

It was open to the jury to reject the motives to
    fabricate offered by the defence and to conclude there was no evidence of a
    motive to fabricate. If the jury took that view, the absence of any evidence of
    a motive to fabricate could be used as one factor in assessing R.W.s
    credibility: see:
R. v. J.(H.)
, 2020 ONCA 165, at paras. 145-46.

[35]

In his instructions, the trial judge told the
    jury a witnesss reason or motive for testifying a certain way was one of many
    factors to be considered in assessing the witnesss credibility. He did not
    elaborate and neither counsel asked him to elaborate. For example, the
    appellant did not ask the trial judge to explain the distinction between the absence
    of evidence of a motive and a proved absence of motive. I take it counsel at
    trial did not see the distinction as important to the defence case.

[36]

Significantly, the trial judge said nothing to
    the jury to suggest there was no evidence R.W. had a motive to fabricate. To
    the contrary, he specifically reminded the jury of the motives put forward by
    the defence when summarizing the position of the defence. In doing so, the
    trial judge acknowledged R.W.s motive, if any, for testifying the way she did,
    was very much in play and open to different interpretations on the evidence. Absent
    any objection by counsel, or any request for more detailed submissions
    concerning R.W.s potential motives, I think the trial judge adequately
    addressed that issue in his instructions: see
R. v. J.(H.)
, at paras.
    150-55.

[37]

The argument Crown counsel invited the jury to put
    the onus on the defence to show the absence of a motive to fabricate relies on
    a single sentence in Crown counsels address. When discussing one of the
    motives offered by the defence as a reason for R.W. fabricating her evidence,
    Crown counsel said:

It does not prove some motive to lie.

[38]

There was no onus on the defence to prove R.W.
    had a motive to lie. The single sentence uttered by the Crown during his
    closing would suggest otherwise if considered in isolation. However, bearing in
    mind the trial judges repeated and correct instructions on the burden of proof,
    and the manner in which he dealt with the relevance of a witnesss potential
    motive, I have no doubt the jury understood the Crown carried the burden of
    proof throughout and the defence had no obligation to prove anything, including
    R.W.s motive. The jury could not have been under any misapprehension as to the
    manner in which it should consider the evidence and submissions pertaining to R.W.s
    alleged motives to fabricate her evidence:
R. v. Darnley
, 2020 ONCA
    179, at para. 38.

(iii)

Did Crown counsel improperly give evidence about
    the effect of alcohol consumption on human behaviour?

[39]

The jury heard a lot of evidence about drinking
    in the several hours before the alleged attack on R.W. K.M., R.W. and the
    appellant all consumed a significant amount of alcohol. R.W. described herself
    as very intoxicated. The defence claimed she overstated her degree of
    intoxication.

[40]

R.W.s alcohol consumption was relevant to her
    credibility and the reliability of her evidence in at least two ways. It
    potentially made her memory of the relevant events less reliable. It also potentially
    explained her actions and reactions during the sexual encounter. In the latter
    sense, R.W.s degree of intoxication arguably cut both ways. Significant
    intoxication offered an explanation for how R.W. came to fall asleep and her
    very confused state in the moments after she awoke to find the appellant
    sexually assaulting her. However, R.W.s significant degree of intoxication
    might also offer support for the inference, that because of her drinking, R.W.
    made a very bad decision to have sex with someone her friend cared for and who she
    hardly knew and quickly came to regret that bad decision. That scenario fit
    with one of the motives offered by the defence for R.W.s false allegation
    against the appellant.

[41]

Although R.W.s degree of intoxication was a
    significant issue, it was not directly relevant to consent, the crucial issue
    in the case. The Crown did not allege R.W. lacked the capacity to consent
    because she was intoxicated. The Crown alleged R.W. did not consent because she
    was asleep when the appellant attacked and sexually assaulted her. As my
    colleague, Trotter J.A., concisely put it in oral argument, this was a case
    about consent, not capacity to consent.

[42]

The appellant points to four references in Crown
    counsels closing, contending they amounted to the Crown giving evidence about
    the effects of alcohol consumption. I do not propose to review each separately.
    None are particularly controversial and none are consequential. There was no
    objection taken to any of Crown counsels comments about the effect of alcohol
    consumption. Trial counsels silence reflects the relative insignificance of
    Crown counsels comments. I see no possible prejudice to the appellant.

(iv)

Did Crown counsel improperly invite the jury to
    use the appellants presence at trial to make an adverse finding with respect
    to his credibility?

[43]

R.W. testified that she met the appellant
    several times while he was dating K.M., but barely knew him. In his
    cross-examination, the appellant indicated he had known R.W. for about 12 years
    and did not agree with her suggestion that they had known each other for a
    very brief time. The appellant also pointed out that they were Facebook
    friends. It is fair to say, in his evidence, the appellant suggested he and R.W.
    knew each other better than R.W. had indicated in her testimony.

[44]

The appellants description of the nature of his
    relationship with R.W. led the Crown to ask him what he knew about R.W. The
    appellant referred to four things. The appellant agreed with the Crowns
    suggestion R.W. had testified about those four things. Crown counsel asked if
    there was anything else the appellant knew about R.W. The appellant could offer
    nothing else.

[45]

In his closing argument, Crown counsel submitted
    the appellants evidence about how well he knew R.W. did not have a ring of
    truth. Crown counsel said:

I asked Ryan, tell me some things about R.W.
    If youve known her for 10 years, tell me some things. He told me four. She
    likes to play games on the computer and the Wii; she likes to drink; she has a
    boyfriend in New York; and that she was anti-social because of her anxiety
    issues.
We all know that, all of us know that, we heard
    her testify to that, weve met her only once
. [Emphasis added.]

[46]

The appellant was constitutionally entitled to
    be present throughout his trial. To suggest the appellant tailored his evidence
    to conform with evidence heard at trial could turn the exercise of that
    constitutional right into a strike against the appellants credibility: see
R.
    v. Jorgge
, 2013 ONCA 485, at paras. 12-19.

[47]

Crown counsel did not suggest the appellant had
    used his presence at trial to conform his evidence to evidence given earlier in
    the trial by R.W. Instead, Crown counsel cross-examined the appellant to suggest,
    contrary to the appellants evidence in-chief, he did not know R.W. very well
    at all. In an effort to make this point, Crown counsel cross-examined to demonstrate
    the appellant knew no more about R.W. than anybody who had been sitting at the
    trial and heard her testify. The appellants answers confirmed the Crowns
    suggestion. In closing, the Crown advanced a legitimate argument for the jurys
    consideration.

B.

The trial judges answer to the jurys question

[48]

The jury heard evidence blood samples were taken
    from R.W. as part of her sexual assault examination. They also heard these
    samples were typically sent to the Centre for Forensic Science (CFS) to test
    for the presence of drugs and/or alcohol. The jury did not hear any evidence
    the samples taken from R.W. were actually sent to the CFS or tested for
    blood/alcohol levels.

[49]

R.W. was cross-examined on parts of her preliminary
    inquiry testimony. Those extracts included references to tests having been done
    by the CFS and results suggesting a high blood/alcohol level. None of those
    references, however, were admissible for the truth of their contents. The trial
    judge so instructed the jury soon after the jury heard the evidence making
    references to the preliminary inquiry transcript.

[50]

In his jury charge, the trial judge summarized
    the evidence relevant to R.W.s consumption of alcohol when addressing the
    issue of consent. The trial judge said, in part:

On the evidence, its clear she had consumed
    considerable alcohol during the early morning hours of June 17, 2017. On the
    other hand, the police officers who attended after the 911 call did not comment
    on her state of sobriety or the lack of ability to comprehend what was being
    discussed. There was no evidence offered of any signs of evident intoxication.
    The Crown did not produce the complainants hospital records to prove her
    blood/alcohol level at the time of attending at the hospital, or alternatively,
    to produce evidence the blood/alcohol readings were not taken. I remind you,
    again, the onus is at all times upon the Crown to prove all elements of the
    offence charged beyond a reasonable doubt.

[51]

The trial judge properly alerted the jury to the
    absence of evidence that could impact on the jurys ultimate assessment of
    R.W.s state of intoxication.

[52]

About three hours into their deliberations, the
    jury had two questions:

Was R.W.s blood/alcohol ever tested/taken? If
    so, why wasnt it presented as evidence?

[53]

In answer to the jurys question, the trial
    judge repeated the instruction set out above (para. 50). He also told the jury:

You have to decide this case on the evidence
    which is presented to you in the courtroom and not speculate on why particular
    evidence has not been called.

[54]

The trial judges answers to the jurys
    questions were responsive and correct. In answer to the first question, he
    repeated his instruction there was no evidence of testing. He also repeated his
    instruction that the absence of evidence could impact on whether the Crown had
    met its onus.

[55]

In answer to the second question, the trial
    judge told the jury it must decide the case on the evidence presented, and not
    speculate about why evidence was not called. Given the jurys question, it was
    essential that the trial judge tell the jury it could not speculate either
    about why test results were not presented at trial, or what those results might
    have been.

[56]

The appellant submits the trial judge was wrong
    to tell the jury to decide the case only on the evidence heard in the courtroom
    and to not speculate why certain evidence was called. He argues this
    instruction removed the jurys ability to find a reasonable doubt from the
    absence of the evidence.

[57]

I reject this submission. A reasonable doubt can
    arise from the absence of evidence. The trial judge expressly said so in his
    instructions on reasonable doubt. An absence of evidence may preclude the jury
    from drawing inferences or conclusions necessary to a finding of guilt. A
    reasonable doubt cannot, however, arise from speculation about what uncalled evidence
    might have been, or why the evidence was not called.

[58]

In this case, there was an absence of evidence
    about the testing for blood/alcohol levels, just as there was absence of
    evidence concerning observations by police officers at the scene. Those gaps
    were part of the evidentiary picture. A jury could properly consider those gaps
    in deciding what inferences to draw or not draw. The jury could not, however,
    go on and fill those gaps with speculation about whether tests were done and,
    if so, why the results were not presented.

[59]

The distinction between improper speculation about
    uncalled evidence and considering gaps in the evidence when determining whether
    the case has been proved beyond a reasonable doubt is demonstrated in
R. v.
    Tebo
, 2003 O.J. No. 1853 (C.A.). In
Tebo
, the Crown had to prove
    the accused was in possession of certain items. The Crown offered no
    fingerprint or other forensic evidence connecting the accused to the items.
    Defence counsel argued the absence of any such evidence should leave the jury
    with a reasonable doubt. The trial judge effectively took that submission away
    from the jury, telling them counsel was inviting them to speculate about
    evidence that was not before the court.

[60]

This court held the trial judge erred. In
    allowing the appeal, Feldman J.A. said, at para. 9:

This was not an invitation to the jury to
    speculate as to why the Crown had not called any fingerprint evidence,
    implicitly suggesting that the Crown knew the appellants fingerprints were not
    on the cards and wallet. Rather, counsel was properly pointing out to the jury
    the frailties of the evidence that could link the appellant with the items,
    which included an absence of anything that could have provided that link.

[61]

The trial judge in this case did not err in his
    response to the jurys questions.

conclusion

[62]

I would dismiss the appeal.

Released: DD      OCT 19 2020

Doherty J.A.

I agree. K. van Rensburg J.A.

I agree. Gary Trotter J.A.


