



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    identify the complainant or a witness shall not be published in any document or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.





CITATION:
R. v. LeBrocq, 2011
          ONCA 405



DATE: 20110525



DOCKET: C52176



COURT OF APPEAL FOR ONTARIO



Weiler, Gillese and Blair JJ.A.



BETWEEN:



Her Majesty the Queen



Respondent



and



Philip LeBrocq



Appellant



Joshua Frost and Crystal Tomusiak, for the appellant



Joanne K. Stuart, for the respondent



Heard: May 13, 2011



On appeal from the convictions on six counts of sexual assault
          entered by Justice L.L Gauthier of the Superior Court of Justice, sitting
          with a jury, on October 2, 2009.



By the Court:



Background

[1]

Mr. LeBrocq seeks to set aside his convictions on six
    counts of sexual assault.  He was tried
    by a court comprised of Justice L.L. Gauthier sitting with a jury.

[2]

The complainant alleged that the appellant had sexually
    assaulted her on a number of occasions while he was involved in a romantic
    relationship with her mother.  The
    assaults were said to have ranged from fondling to intercourse and to have
    spanned a period starting when the complainant was 7-10 years old and ending
    when she was 13.

[3]

The appellant raises two grounds of appeal.

[4]

First, he submits that the trial judge erred in
    dismissing his application at the outset of trial to introduce evidence that
    the complainant had previously accused another of the mothers boyfriends of
    sexually assaulting her.  The appellant
    proposed to lead the evidence in order to show that the complainant was
    fabricating her testimony and that she may have been confused about which of
    the boyfriends had sexually assaulted her.  Although defence counsel at trial professed
    that he was not bringing the application under s. 276.1 of the
Criminal Code
, the trial judge treated
    it as such, and rejected it without holding a hearing on the basis that the
    insufficiently-detailed evidence proposed was not capable of being admissible
    under s. 276(2) of the
Code
.

[5]

Secondly, the appellant submits that the cumulative
    effect of a series of allegedly improper comments by Crown counsel during her
    opening and closing addresses to the jury, as well as certain questions during
    cross-examination, rendered the trial unfair.

[6]

We reject both grounds of appeal.

Dismissal of the s. 276.1 Application Without a Hearing

[7]

Under s. 276.1(4)(c), unless there is some basis upon
    which the evidence sought to be admitted satisfies the trial judge that it is
    capable of being admissible under subsection 272(2), the trial judge has no
    obligation to hold a hearing to determine whether that would be the case.  The decision is discretionary and entitled to
    deference.

[8]

In
R. v. Ecker
(1995),
    96 C.C.C. (3d) 161, at pp. 181-82, a majority of the Saskatchewan Court of
    Appeal observed that it is preferable for courts to take a cautious approach to
    establishing the limits of the first stage of the s. 276.1 enquiry, and to
    leave such doubts as may exist regarding the admissibility of the proposed
    evidence to the hearing stage.  Here,
    however, it is apparent from the trial judges reasons that she was satisfied the
    evidence, as presented to her at stage one, was clearly not capable of being of
    being admissible.

[9]

The trial judge concluded that there was insufficient
    detail in the application and supporting affidavit to allow her to determine
    that the proposed evidence was relevant.  The application provided no details of the alleged assaults by the other
    boyfriend or any evidence of whether he had been charged and, if so, the
    outcome of those charges.  In any event,
    the trial judge concluded that, even if the other boyfriend had been tried and
    acquitted, it would not follow that the complainant had fabricated her evidence.  Rather, it would simply show that the Crown
    had failed to prove the charges against the other boyfriend beyond a reasonable
    doubt.  In that sense, the proposed
    evidence was not relevant.  Even if it
    was relevant, the trial judge concluded that it would be inadmissible because
    it was prejudicial and had a significant potential to mislead the jury into an
    impermissible line of reasoning.  She
    therefore dismissed the application.

[10]

On the record before her, we see no error in the trial
    judges exercise of discretion in that regard and in her determination that the
    tendered evidence was not capable of being admissible under s. 276(2) of the
Criminal Code
.

The Comments and Questions by Crown Counsel

[11]

Nor would we give effect to the argument that Crown
    counsels comments in her opening and closing addresses to the jury, together
    with certain of her questions to a defence witness, had the cumulative effect
    of rendering the trial unfair.

[12]

The appellant isolates one comment made during Crown
    counsels opening submission, in particular, and three during the closing
    address.  He also focuses on certain
    questions posed to a defence witness that he submits were designed to
    improperly bolster the complainants credibility.

[13]

No objection was made to any of these comments or
    questions by defence counsel at trial (not Mr. Frost), nor did trial counsel
    seek any corrective instruction or apply for a mistrial.  These concerns are raised for the first time
    on appeal.

Questions to Defence Witness

[14]

In a brief cross-examination of one of the defence
    witnesses, Crown counsel elicited responses indicating that the complainant was
    a good student and a smart and intelligent girl with a lot of potential.  In the context of the evidence as it unfolded
    at trial, we do not consider these questions put to the defence witness as
    amounting to impermissible oath helping.  Crown counsel is entitled to put a human face on the complainant within
    limits.  Moreover, the same evidence had
    already been elicited by defence counsel during the witness
    examination-in-chief.

The Crowns Opening

[15]

Crown counsels comments in her opening address were
    similarly benign, in our view.  She
    outlined some biographical background showing that the complainant had had a
    difficult upbringing and  in the passage particularly impugned  she said:
    Now, when you hear [the complainants] evidence and story, I want you to keep
    an open mind and remember that she is young and shes just trying to survive in
    this world.  The appellant submits that
    the tenor of this presentation was to put the complainant in a sympathetic
    light and therefore to bolster her credibility improperly in a case where
    credibility was central.

[16]

We agree with the Crown, however, that the presentation
    did little more than introduce the jury to who the complainant was and to
    provide some context for the allegations made.  In addition, any difficulties were adequately offset by the trial
    judges general instructions to the jury that the views of counsel were not
    evidence, that the jurors must arrive at their own conclusions on the evidence,
    and that they were to do so without sympathy for either party or prejudice.

The Crowns Closing

[17]

Nor are we satisfied that the comments complained of in
    Crown counsels closing address, taken alone or cumulatively with the other
    impugned comments, led to any unfairness in the trial.

Motive


[18]

In her closing, Crown counsel referred to the absence
    of motive to fabricate.  She stated, [t]he
    defence pointed out no motive for [the complainant] to fabricate, and coupled
    that comment with the related rhetorical question, Where is the motive for her
    to fabricate, and appear here and tell you about these embarrassing things?  The appellant submits that this reference
    irretrievably poisoned the jurors thinking process because it may have invited
    them to conclude that the onus had shifted to the defence to prove a lack of
    motive or that the absence of proof of motive must have meant the complainant
    was telling the truth.

[19]

Again, we disagree.  In the circumstances of this particular case, we do not think that these
    comments were unfair to the defence or that they required a corrective instruction.
     Fabrication was the centrepiece of the
    appellants defence and defence counsel went to the jury entirely on the basis
    that the complainant was lying and had made up her evidence.  The Crown is entitled to counter that defence
    within limits.

[20]

There is a difference between pointing to the absence
    of evidence  as Crown counsel did here  and suggesting in a flourish of
    rhetoric that the defence should have called evidence demonstrating such a
    motive and failed to do so, or that the Crown had proven the lack of motive to
    fabricate.  Crown counsels comments may
    have been close to the line, but, when they are considered in context, we do
    not believe they would have led the jury to believe that there was any shift in
    the onus of proof, or a requirement on the defence to point to a motive to
    fabricate or anything else.  Nothing in
    Crown counsels closing remarks would have invited the jury to reason that the
    absence of a demonstrated motive to lie necessarily means there was no motive,
    or that the absence of a motive to fabricate necessarily means the complainant
    must have been telling the truth.  See
R. v. Batte
(2000), 49 O.R. (3d) 321
    (C.A.), at para. 121;
R v. L.L.
(2009), 96 O.R. (3d) 412 (C.A.). This is not a case like
L.L.
, where Crown counsels remarks were particularly directive and
    egregious.

[21]

The jury would have been aware of the trial judges
    clear instruction that there was no onus on the defence to call any evidence or
    to prove the appellants innocence.  In
    addition, defence counsels lack of objection and the absence of any request
    for a corrective instruction are telling of the impact that defence counsel felt
    the comments may have had.

Erectile Dysfunction

[22]

A key element of the appellants defence at trial that
    the complainant was fabricating her story was his evidence that he was
    suffering from erectile dysfunction during the years when he is said to have
    committed the sexual assaults.

[23]

Crown counsel attacked this defence, and in her closing
    remarks alluded to a number of inconsistencies in the appellants evidence
    regarding the timing of his erectile difficulties and the consequent cessation
    of sexual relations with the mother.  The
    appellant submits that Crown counsel misstated the evidence (which, he says, originated
    from an unfair line of questioning at trial).  We do not agree that Crown counsel misstated the appellants evidence in
    any material fashion, or that her statements resulted from an improper line of
    questioning (we observe again that no objection was raised at trial about the Crowns
    line of questioning).  We are satisfied
    that Crown counsels statements did not lead to any unfairness.

[24]

There was some evidence to support the appellants
    evidence that he had erectile difficulties.  The complainant was apparently aware of it, and said so at one point in
    her testimony.  In Crown counsels closing
    to the jury, she asked how the complainant would have known this intimate
    detail about this man if he wasnt engaging in sexual acts with her?  She characterized this as the most powerful
    evidence in the case.

[25]

The appellant objects to these comments on the basis
    that they called for speculation on the part of the jury, because there was no
    evidence about how the complainant became aware of the appellants
    problems.  In oral argument, the appellants
    counsel framed the issue in
Browne v.
    Dunn
terms,
[1]
submitting that the Crown had never advanced the position before closing that
    it would argue the sole possible source of the complainants awareness was
    direct experience (as opposed, for example, to overhearing it being discussed
    by her mother and the appellant during the years they lived together).  Mr. Frost submitted that it was incumbent on
    the Crown, had it intended to advance this position, to raise this issue in
    evidence by at least questioning the mother about it, before using the argument
    in closing.  Hence, the
Browne v. Dunn
analogy.

[26]

The stumbling block with this argument is that it was
the appellant
who elicited the evidence
    of the complainants knowledge of the appellants erectile difficulties.  In cross-examination she responded to a
    series of questions by noting that there were times when the appellant could
    not get it up.  The defence having brought
    this evidence out, there was no obligation on the Crown to pursue it, or to ask
    any other witnesses about it.  The
    principle of
Brown v. Dunn
has no
    application.

The Role of Crown Counsel

[27]

Finally, the appellant objects to Crown counsels
    statement in closing that: My duty is to test his evidence.  Im not trying to be mean to him or make him
    look bad.  I have to test the veracity
    and truth of what he says.  I have duties
    to the court[.]  The appellant says this
    comment had the potential to impermissibly elevate the Crown in the jurys eyes
    by suggesting that Crown counsel was impartial and that her submissions were
    motivated by her duty to the court to test the veracity of the appellants
    evidence.

[28]

These comments were not improper in our view.  In fact they accurately reflect the duty and
    obligation of Crown counsel and her position at trial, and did not reflect
    adversely in any way on either the appellant or his trial counsel.

Disposition

[29]

In conclusion, no trial unfairness flowed from the
    impugned comments and questions of Crown counsel.

[30]

Accordingly, the appeal is dismissed.

K.M. Weiler J.A.

E.E. Gillese J.A.

R.A. Blair J.A.

RELEASED:  May 25,
    2011





[1]

Browne v. Dunn
(1873), 6 R. 67 (U.K.
    H.L.).


