



COURT
    OF APPEAL FOR ONTARIO

CITATION: R. v. Osborne, 2017 ONCA
    129

DATE: 20170215

DOCKET: C57313

Epstein, Tulloch and
    van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Osborne

Appellant

Clayton C. Ruby and Annamaria
    Enenajor, for the appellant

Grace Choi, for the respondent

Heard: June 28, 2016

On appeal from the conviction
    entered on February 8, 2012 by Justice Fletcher Dawson of the Superior Court of
    Justice, sitting with a jury.

Epstein J.A.:

A.

OVERVIEW

[1]

After a
    trial by judge and jury, the appellant Jason Osborne was convicted of first
    degree murder in the death of Karina Neff. He was sentenced to life
    imprisonment without eligibility for parole for 25 years.

[2]

The
    appellant appeals his conviction on two grounds. First, the appellant argues
    that the trial judge erred in admitting the video-recorded statement of a Crown
    witness under s. 715.2 of the
Criminal
    Code
.
Second, the appellant argues
    that the trial judge erred in dismissing his application for a mistrial after
    Crown counsel made certain remarks in his closing address about the evidence of
    the defences expert forensic psychologist.

[3]

For the
    reasons set out below, I would dismiss the appeal.

B.

Background

(1)

The Factual Background

[4]

In 2008, 31
    year-old Karina Neff was living with her parents. The appellant, with whom Ms.
    Neff had had a previous intimate relationship, was staying in a townhouse close
    to Ms. Neffs family home with three other young men, including Grayson
    Kekewich and Adrian Osmond. To varying degrees, Ms. Neff and all of the young
    men were developmentally delayed.

[5]

On the
    evening of July 21, 2008, Mr. Kekewich was visiting Ms. Neff at her home. At
    around 10:00 p.m., Ms. Neff and Mr. Kekewich went for a walk. They took Ms.
    Neffs dog with them. At 11:00 p.m., Ms. Neff had not returned home and her
    parents became concerned. They went looking for her and eventually contacted
    the police. At about 1:00 a.m., the dog returned to Ms. Neffs home, alone and without
    its leash.

[6]

The police
    focused their search on the people last known to be with Ms. Neff. Shortly
    before 2:30 a.m. on July 22, Mr. Osborne, Mr. Kekewich and Mr. Osmond were
    brought to the police station to be interviewed.

[7]

Mr.
    Osmonds first video-recorded interview started at around 3:00 a.m. and lasted
    about half an hour. He told police that he and Mr. Osborne had gone for a walk
    that night and had met up with Ms. Neff and Mr. Kekewich near her townhouse.
    After a brief conversation, Ms. Neff walked toward her home by herself, and he
    (Mr. Osmond) walked home with Mr. Osborne and Mr. Kekewich. This version of
    events was supported by Mr. Osborne in his first interview with the police that
    started at about the same time.

[8]

Later that
    morning, the police interviewed Mr. Osmond and Mr. Osborne again.

[9]

Mr.
    Osmonds second video-recorded interview began around 11:00 a.m. and concluded
    at about 6:45 p.m. on July 22. Just after noon that day, while Mr. Osmonds
    interview was ongoing, Ms. Neffs body was discovered in a forested area of a
    park near her home. Upon being advised that the police had found Ms. Neffs
    body, Mr. Osmond said things to the police that he had not said in his first
    interview. He told the police that Mr. Osborne had something fishy on his mind
    and wanted to do it. According to Mr. Osmond, Mr. Osborne told him that he
    wanted to hurt Ms. Neff and had said: I wanna choke her. I wanna kill her. I
    wanna get rid of her. Mr. Osborne had tried to enlist Mr. Osmonds assistance
    in killing Ms. Neff, but Mr. Osmond had made it clear to Mr. Osborne that he
    did not want to get involved with Mr. Osbornes problems with her. In this
    statement, Mr. Osmond said that he went home with Mr. Kekewich and left Mr.
    Osborne alone with Ms. Neff. Later, Mr. Osborne returned home covered in sweat.

[10]

During Mr.
    Osbornes second interview, the police observed pink discoloration on Mr.
    Osbornes shoes. Closer scrutiny disclosed small red spots on the shoes.

[11]

It was
    during Mr. Osbornes second interview that police arrested him for Ms. Neffs
    murder. Mr. Osborne then confessed to having assaulted Ms. Neff but denied
    either intending or planning to kill her. He explained that after Mr. Kekewich
    and Mr. Osmond left, Ms. Neff started screaming at him. He became frustrated and
    angry, lost control and assaulted her.

[12]

Mr. Osborne
    gave the following description of the assault:

Osborne: And after she grabbed my
    left wrist, she grabbed my right wrist, tried to pull me to hug her. I pushed
    her really hard on the ground. Just one hard push and she lost her balance.
    Then thats when uh, I said lets go, and, and I pull her closer into the
    woods.

[Detective]: Okay. And then what did
    you do?

Osborne: I kept on saying lets go up
    this way, lets go up this way.

[Detective]: And that was back long
    that pathway?

Osborne:
    Yeah.

[Detective]: Into the woods? And then
    what happened Jason?

Osborne: And I kept on saying to her
    a few things I need to get off my mind, a few things I need to get off my mind.
    Thats all I was saying.

[Detective]: What did you want to get
    off your mind?

Osborne: I didnt get it out.

[Detective]: Oh.

Osborne: I just, after that I just
    went quiet.

[Detective]: Were you deeper in the
    woods by that time?

Osborne: Yes.

[13]

Mr. Osborne
    told the police that once he got Ms. Neff deeper into the woods, he pushed her
    to the ground again. She got back up. He grabbed her chest and took her to the
    ground yet again. He held her chest and neck with his hands and choked Ms.
    Neff a little. Mr. Osborne then stomped on her chin, neck, and upper chest,
    and gripped her hair and swung her head forwards and backwards, hitting her
    head on a log.

[14]

Mr. Osborne
    indicated that before he left Ms. Neff in the park, he located her cell phone,
    took the leash off the dog and picked her shoes up, which had come off during
    the assault. He discarded the leash and shoes in one garbage can and the cell
    phone in another. He then went home and took a shower.

[15]

A forensic
    pathologist gave evidence about Ms. Neffs injuries. She sustained extensive
    injuries to her face, neck, chest, and upper torso. She also suffered internal
    neck hemorrhages associated with a fracture-dislocation of the hyoid bone and
    cricoid cartilage. The pathologist identified the cause of Ms. Neffs death to
    be compression of her neck and the obstruction of her upper airway by
    smothering. He could not specifically say how much pressure was applied to Ms.
    Neffs neck but could not exclude manual strangulation or compression of the
    neck by a foot.

(2)

The Trial

[16]

Mr. Osborne
    admitted to causing Ms. Neffs death but took the position that he did not have
    the
mens rea

for murder and was therefore guilty of
    manslaughter. The main issue at trial, therefore, was whether the Crown could
    prove first degree murder.

[17]

The Crown
    based its theory that Ms. Neffs death was planned and deliberate largely on
    the evidence given by Mr. Osmond in his second video-recorded statement to the
    police that Mr. Osborne told him that he had been thinking about choking Ms.
    Neff to get rid of her and that Mr. Osborne had tried to enlist his help to
    kill Ms. Neff. The Crown also argued that Mr. Osborne could be found guilty of
    first degree murder on the basis that the murder was committed while Ms. Neff
    was forcibly confined by Mr. Osborne. The evidence of forcible confinement came
    from Mr. Osbornes statement to police that he pulled Ms. Neff deeper into the
    woods before killing her.

[18]

As will be
    discussed more fully below, another issue arose in the course of the trial.
    Counsel for Mr. Osborne applied for a mistrial based on remarks the Crown made
    in his closing submissions to the jury that went to the issue of intent. The
    defence took the position that what the Crown said to the jury misstated the
    evidence and was prejudicial to Mr. Osborne, and asked the trial judge to order
    a mistrial. The trial judge dismissed the mistrial application, reasoning that
    any prejudice caused by the Crowns submissions could be addressed through
    strong corrective instructions.

(3)

The Crown's Application to
    Admit Mr. Osmond's Video-Recorded Statements

[19]

On a
    pre-trial application, the Crown sought to have Mr. Osmonds second
    video-recorded statement admitted into evidence at trial under s. 715.2 of the
Criminal Code
.
[1]
The parties agreed that the preliminary hearing evidence should be considered
    as evidence on the pre-trial application.

[20]

Section 715
    permits reception of a video-recorded statement describing the relevant events
    by a person in a prescribed class of witness.  The section is divided into two
    subsections. Each deals with a different category of witness. Section 715.1
    pertains to witnesses under the age of 18 at the time of the offence. Section
    715.2 pertains to witnesses who have a disability that makes it difficult to
    communicate evidence. There are several conditions that must be met before the
    video-recording may be admitted for the truth of its contents. The maker must
    fall within one of the two classes of witnesses, and the video-recording must
    be made within a reasonable time after the alleged offence and describe the
    relevant acts. Significantly, for the purposes of this appeal, the witness must
    adopt the contents of the video-recording while giving evidence in the
    proceedings in which it is tendered.

[21]

Mr.
    Osmonds father, Donald Osmond, testified on the s. 715.2
voir dire

at the preliminary inquiry. Donald Osmond
    explained that his son was born with a genetic condition known as Fragile-X
    syndrome, which is associated with a spectrum of intellectual limitations. The
    cognitive impairments can range from mild to severe. Donald Osmond stated that
    his sons genetic condition impairs his ability to perceive and remember events
    and that his son has difficulty recounting events in a chronological order.
    However, he also testified that his son was very capable of remembering things
    you say if they were very unusual events.

[22]

Mr. Osmond
    testified at the preliminary inquiry. He was 24 years old at the time but had
    been assessed as having the mental capacity of a seven-and-a-half year old. At
    the hearing, Mr. Osmonds second video-recorded statement was played to him in
    segments and after each segment, he testified that he remembered making the
    statements and that, in making those statements, he was endeavouring to tell
    the police the truth. However, Mr. Osmond only vaguely remembered what the
    police asked him, what he said to the police, and what occurred on the day Ms.
    Neff died.

[23]

Counsel for
    Mr. Osborne argued that Mr. Osmonds statements were inadmissible under s.
    715.2. Specifically, it was Mr. Osbornes position that s. 715.2 is narrower in
    application than s. 715.1 and that a witness seeking to admit his or her
    video-recorded statement under this section must be able to confirm its
    contents from present recollection. Given Mr. Osmonds evidence at the
    preliminary hearing, Mr. Osborne argued that Mr. Osmond was not in a position
    to confirm the truth and accuracy of the contents of the video-recorded
    statements from his present memory of the events referred to in the statement,
    making them inadmissible.

[24]

The Crown
    argued that the test for adoption under s. 715.2 is the same as in s. 715.1 and
    does not include a requirement that the witness be able to confirm the truth of
    the video-recorded statement based on a present recollection.

[25]

The trial
    judge rejected Mr. Osbornes argument that s. 715.2 should be read to include a
    requirement that an adult witness with a disability must have a present ability
    to offer assurance that the video-recorded statement is a true reflection of
    the events witnessed:
R. v.
    Osborne
, 2011
    ONSC 4289, [2011] O.J. No. 6279.

[26]

In ruling
    in favour of admitting Mr. Osmonds statements into evidence, the trial judge
    relied on the Supreme Courts decision in
R. v. C.C.F
.
, [1997] 3 S.C.R. 1183, in which the court
    concluded that under s. 715.1, a child witness adopts his or her video-recorded
    statement while testifying if the child recalls giving the statement and
    testifies that he or she was, at the time of giving the statement, attempting
    to be truthful:
C.C.F.
,
at paras. 35-41. Significantly, in
C.C.F
.
, the Supreme Court held that the adoption
    test in s. 715.1 does not require that the child verify the accuracy and
    contents of the statement based on a present memory of the events referred to
    in the video-recorded statement:
C.C.F
.
, at paras. 38-41.

[27]

In
    considering whether the test for adoption under s. 715.2 should be interpreted
    differently than the test for adoption under s. 715.1, the trial judge
    reasoned, at para. 39, as follows:

Based on the similarity of the
    language used in ss. 715.1 and 715.2 it is apparent that Parliament chose to
    treat these two groups in the same way for the purpose of admitting video
    recorded statements. In doing so Parliament must have been aware of the test
    for adoption of video recorded statements previously established by the Supreme
    Court of Canada in
C.C.F.
In these circumstances I take the enactment
    of s. 715.2 in virtually the same terms as s. 715.1 as an indication by
    Parliament that adoption should have the same meaning in both sections.
    Parliament could have chosen to specify a different test for adoption in s.
    715.2 but did not do so. I conclude the test for adoption is the same under
    each section.

[28]

The trial
    judge held that by enacting s. 715.2 in virtually the same terms as s. 715.1,
    Parliament intended that the word "adopts" has the same meaning in
    both sections.

[29]

Both of Mr.
    Osmonds statements to the police were admitted into evidence.

(4)

The Application for a
    Mistrial

[30]

In his
    closing statement to the jury, the Crown referred to the evidence of Dr. Sandor
    Wiseman, a forensic psychologist engaged by the defence, in a manner to which
    defence counsel strongly objected. The Crown made the following comments during
    closing submissions:

Dr. Wiseman in fact told you that it
    was not his opinion that Mr. Osborne was not able to form intention for first
    degree murder, nor should he have told you that, because as it turns out, he
    didnt assess Mr. Osborne to determine whether or not he could form intention
    or did form intention. Why is that?

The key issue for your determination,
    intention. And you were presented with a psychologist who was extremely
    limiting  limited of what he could say to you about intention. He told you he
    could have assessed Mr. Osborne on the issue of intention, but such would have
    meant discussing the killing and what Mr. Osborne was thinking at the time.



Mr. Osborne was spoken to by a
    psychologist in a trial where the issue was intention and was never asked about
    what he was thinking at the time he committed this horrible crime. Those were
    his instructions.

Does it seem a little strange to you?
    Its clear that the defence entailed hiding from the crucial issue in asking
    you to simply accept Mr. Osbornes suggestion that he, over the course of three
    or four minutes in which he strangled Ms. Neff and the preceding moments where
    he viciously beat her, simply didnt form the intention.

Youre being asked to reduce this
    common sense proposition that Ive put to you to the results of an IQ test.
    Well, ladies and gentlemen that would in fact usurp your function and it sure
    did insult your intelligence.

[31]

After the
    Crowns closing statement, counsel for Mr. Osborne applied for a mistrial on
    the basis that the Crown had misstated Dr. Wisemans evidence to the effect
    that the defence had instructed Dr. Wiseman not to speak to Mr. Osborne about
    the issue of intent to murder Ms. Neff, and that the Crown had prejudiced the
    defence by suggesting that Mr. Osborne was trying to hide from the issue of
    intent. Mr. Osborne also argued that the Crowns closing remarks drew attention
    to his silence on the question of intent and failure to testify, in violation
    of s. 4(6) of the
Canada
    Evidence Act
,
R.S.C. 1985, c. C-5

(the
CEA
)
.

[32]

The trial
    judge dismissed the application for a mistrial. He reasoned as follows:

I
    do not accept the defence submission that this violated s. 4(6) of the
Canada
    Evidence Act
. No mention was made by the Crown that the accused did not
    testify, there was not even a veiled reference to that.

I do conclude that there was a
    misstatement of the evidence, and there was rhetorical excess by [the [Crown]
    in its weight.
I doubt that [the Crown]
    understood the problem he was creating, but I am satisfied his remarks invited
    the jury to shift the onus or burden of proof to the accused on the critical
    issue of intent for murder. That must be forcefully corrected, in my view,
R.
    v. Tuck
(2007), 87 O.R. (3d) 308.

In my view, any prejudice can be
    cured by an instruction, but it must be a strong instruction.
The instruction that the jury should find that their
    common sense was insulted is particularly unfair, given that the Crown had an
    opportunity to have Jason Osborne examined by their own expert on the issue of
    intent and chose not to do so, resting that decision on the contents of Dr.
    Wisemans report.

So the record is clear, the Crown did
    have an assessment on the s. 16 issue, which has not been raised, but chose not
    to do an assessment on the issue of intent.

Crown counsel have advised me that
    they are not opposed to some reference being made in a corrective instruction
    to the availability of an opportunity for the Crown to have its own assessment.
    I intend to do that in a modest way by making reference to the law that would
    permit it.

Approached in this way, I conclude
    a pointed jury instruction is adequate to eliminate any prejudice. The
    application for mistrial is dismissed.
[Emphasis added.]

[33]

Further to
    this ruling, the trial judge added the following corrective instruction to his
    charge to the jury:

Members of the jury, in his closing
    remarks to you, Mr. [Crown] said some things to you about Dr. Wisemans
    evidence and about the defence which
I must tell you should never have been
    said and which you must disregard completely.

First of all, [the Crown] told you
    that Dr. Wiseman was instructed not to speak to Jason Osborne about what he was
    thinking at the time he assaulted Ms. Neff.
I must tell you that there is no
    evidence to that effect whatsoever. That is a seriously misleading statement of
    the evidence that should never have been made. Dr. Wiseman said that he was
    retained to determine whether Mr. Osborne suffered from a mental disorder and
    how it affected him. He said he did not ask about the offence because it was not
    necessary to do so in order to properly accomplish what he was asked to do. In
    other words, Dr. Wiseman testified he did not ask Mr. Osmond [sic] about that
    as it had no bearing on determining whether Jason Osborne was suffering from a
    mental disorder and, if so, what it was.


Dr. Wiseman said in passing that most
    defence counsel ask him not to discuss the offence with their clients. He did
    not say that he received any such instruction from defence counsel in this
    case.
Even if such instructions had been given, and there is no evidence
    they were, that would be a completely irrelevant consideration. I have already
    told you that it is a fundamental principle of our criminal justice system that
    there is no onus or burden on an accused person to prove anything. The Crown
    bears the burden of proof on the issue of intent, as on any other issue that is
    an essential element of the offence. That burden never shifts.


Mr. [Crown] suggested to you that
    these instructions to Dr. Wiseman, which I have just told you there is no
    evidence of, entailed the defence hiding from the crucial issue, and
    suggested that should insult your intelligence.
That could be taken as
    shifting the onus; it is capable of suggesting there is some onus on Jason
    Osborne to prove or show that he did not have the intent for murder. That is
    fundamentally wrong and you must not let anything Crown counsel said lead you
    to reason in that fashion. It is the Crown that must prove that Jason Osborne
    had the intent required for murder, not Jason Osborne who must show you or
    prove to you that he did not.

You will decide the question of
    whether Jason Osborne had the intent for murder on the basis of the evidence
    that you have before you, which includes Dr. Wisemans evidence. While it is
    for you to assess Dr. Wisemans evidence and determine the extent to which you
    are prepared to rely on it,
you must not draw any negative inferences or
    diminish the value of his evidence because he might have done something which
    he was not asked to do and which he says was unnecessary to properly accomplish
    what he was asked to explore.

Perhaps most importantly, you must
    not consciously or unconsciously shift the burden of proof on the issue of
    intent onto Jason Osborne because Dr. Wiseman did not explore what was in Jason
    Osbornes mind at the time of the assault on Ms. Neff. To emphasize the
    unfairness of doing so I will tell you that in circumstances such as those in
    this case the Crown was legally entitled to have their own psychologist or
    psychiatrist conduct an assessment of Jason Osborne on the very issue of
    whether he actually formed the intent for murder. Although it is the Crown that
    bears the burden of proof, you have heard no evidence of such an assessment
    having been undertaken by the Crown. You must not draw an adverse inference
    against the Crown from failure to call evidence of such an assessment, and you
    certainly must not do so in respect of the accused, who bears no burden of
    proof on the issue of intent or any other issue
. [Emphasis added.]

C.

ISSUES ON APPEAL

[34]

The
    appellant advances the following arguments:

1.

The trial judge erred in
    concluding that the adoption test under s. 715.2 does not require the witness
    to be able to confirm the truth of his video-recorded statement based on a
    present memory of the events referred to in the statement.

2.

The trial
    judge erred in dismissing the appellants application for a mistrial following
    the Crowns closing address, and by ruling that any prejudice arising from the
    Crowns submissions could be addressed through correcting instructions.

D.

ANALYSIS

Issue 1  Did the trial judge err
    in concluding that the adoption test under s. 715.2 does not require the
    witness to be able to confirm the truth of his video-recorded statement based
    on a present memory of the events referred to in the statement?

(1)

Statutory Framework

[35]

Section
    715.2, like s. 715.1, is a statutory exception to the hearsay rule, permitting
    an out-of-court statement to be admitted for the truth of its contents.

Evidence
    of victim or witness under 18

715.1 (1) In
    any proceeding against an accused in which a victim or other witness was under
    the age of eighteen years at the time the offence is alleged to have been
    committed, a video recording made within a reasonable time after the alleged
    offence, in which the victim or witness describes the acts complained of, is
    admissible in evidence if the victim or witness, while testifying, adopts the
    contents of the video recording, unless the presiding judge or justice is of
    the opinion that admission of the video recording in evidence would interfere
    with the proper administration of justice.

...

Evidence
    of victim or witness who has a disability

715.2

(1)
In any
    proceeding against an accused in which a victim or other witness is able to
    communicate evidence but may have difficulty doing so by reason of a mental or
    physical disability, a video recording made within a reasonable time after the
    alleged offence, in which the victim or witness describes the acts complained
    of, is admissible in evidence if the victim or witness, while testifying,
    adopts the contents of the video recording, unless the presiding judge or
    justice is of the opinion that admission of the video recording in evidence
    would interfere with the proper administration of justice.

[36]

I make two
    important observations based simply on the wording of the two provisions.

[37]

First, the
    only difference in wording between the two sections relates to who is covered
    by the provision. Section 715.1 requires that the witness be under the age of
    18 at the time of the offence, whereas s. 715.2 requires that the witness be
    able to communicate evidence, but may have difficulty doing so by reason of a
    mental or physical disability.

[38]

Second, the
    pre-conditions for admissibility in s. 715.2 are identical to the
    pre-conditions for admissibility in s. 715.1. The pre-conditions are that: (i)
    the video-recorded statement must have been taken within a reasonable time
    after the alleged offence; (ii) in his or her statement, the witness must
    describe the acts complained of; (iii) the witness must, while testifying,
    adopt the contents of the video-recorded statement; and (iv) the presiding
    judge or justice is not of the opinion that admission of the video recording in
    evidence would interfere with the proper administration of justice.

(2)

Arguments on Appeal

[39]

The
    appellant argues that the trial judge erred in admitting Mr. Osmonds
    video-recorded statements under s. 715.2 because he failed to apply the
    appropriate test for the adoption precondition under s. 715.2. As he did before
    the trial judge, the appellant submits that s. 715.2 requires that the witness
    be able to confirm the contents of the video-recorded statement from his or her
    present recollection. If, as in Mr. Osmonds case, the witness has no present
    recollection of the events referred to in the video-recorded statement, the
    statement is inadmissible.

[40]

The
    appellant bases his argument on several points. First, he says the text of s.
    715.2 reflects a narrower aim and purpose than s. 715.1. Section 715.1 is
    focused on a childs vulnerability and fading memory and, for that reason,
    applies to all children, including those with difficulty remembering evidence.
    On the other hand, s. 715.2 is restricted to persons who are able to
    communicate evidence. Moreover, this phrase is expressed in the present tense.
    The appellant submits that this means s. 715.2 is meant to only apply to those
    who could otherwise testify to events based on their present recollection, but
    have difficulty communicating due to a mental or physical disability.

[41]

Second, the
    appellant argues that the legislative history and context of s. 715.2
    demonstrates Parliaments intention to treat the category of witnesses referred
    to in s. 715.2 differently than child witnesses under s. 715.1. In particular,
    it was open to Parliament to simply incorporate persons with disabilities into
    s. 715.1. Instead, Parliament chose to enact two separate provisions. The
    appellant points to s. 486.2(1) of the
Criminal Code
, which provides accommodations to children and people with
    disabilities so that they can testify without seeing the accused. The appellant
    contends that this section supports his argument that when Parliament intends
    to treat child witnesses and witnesses who can communicate evidence but may
    have difficulty doing so by reason of a mental or physical disability
    identically, it does so by addressing both groups through the same provision.

[42]

Finally,
    the appellant submits that the Parliamentary debates further support a
    conclusion that s. 715.2 was enacted to assist witnesses who experience difficulty
    communicating, not difficulty remembering their evidence. Again, he focuses on
    the inclusion of the word communicate in s. 715.2.

[43]

The
    respondents position is that the trial judge correctly found that the test for
    adoption in s. 715.2 is identical to the test in s. 715.1, and neither section
    requires a witness to have a present memory of the events described in the
    statement. Parliaments primary goal in enacting s. 715.2 was to facilitate
    equal access to justice and full participation in the justice system by
    witnesses with mental or physical disabilities. Given this important remedial
    legislative intent, there is no reason to infer that Parliament intended to
    exclude an entire group of witnesses with disabilities from the salutary intent
    of s. 715.2. Access to justice for witnesses with disabilities is facilitated
    through the animating goals of s. 715.1  to record a witness best
    recollection of evidence that assists in ascertaining the truth and to reduce
    the number of times a potentially vulnerable witness is required to repeat
    their evidence.

[44]

The use of
    the phrase able to communicate evidence in s. 715.2 refers simply to a
    witness ability to communicate evidence in the very sense required for
    competence to testify. The phrase only excludes those who do not have the
    ability to communicate evidence in the basic sense involved in capacity to
    testify.

[45]

The
    respondent argues that the reasoning for why the adoption test under s. 715.1
    does not require the witness to have a present memory of events, as set out in

C.C.F.
, applies equally to s. 715.2. Both sections contain
    built-in guarantees of trustworthiness and reliability that eliminate the need
    for a stringent adoption test, including the requirement that the statement be
    made within a reasonable time.

[46]

Further,
    the fact that Parliament used two provisions to deal with the admissibility of
    video-recorded statements made by two different groups of people whose ability
    to testify may be compromised does not support the conclusion that the adoption
    test under each must be different, particularly when virtually identical
    language is used in each provision.

[47]

Finally,
    the respondent contends that even if the trial judge did err in admitting the
    statements under s. 715.2 of the
Criminal
    Code
, the
    video-recordings would have been admissible under the traditional hearsay
    exception for past recollection recorded or under the principled approach to
    the hearsay rule.

(3)

Applicable Principles

[48]

The
    resolution of this issue turns on the interpretation of the word adopts in
    the context of s. 715.2 of the
Criminal
    Code
.

[49]

Statutory
    interpretation is governed by the approach described in Elmer Driedger,
Construction of Statutes,
2nd ed. (Toronto:
    Butterworths, 1983), at p. 87, and adopted by the Supreme Court of Canada in
Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27, at para.
    21:

Today there is only one principle or
    approach, namely, the words of an Act are to be read in their entire context
    and in their grammatical and ordinary sense harmoniously with the scheme of the
    Act, the object of the Act, and the intention of Parliament.

(4)

Principles Applied

[50]

As both
    parties have argued, the proper meaning of adopts in the context of s. 715.2
    can only be understood in conjunction with its related provision of s. 715.1
    and other provisions of the
Criminal
    Code
and the

CEA
, and by examining the
    legislative history of the provision. It is this analysis to which I now turn.

(a)

The Purpose and Goals of ss. 715.1 and 715.2

[51]

Section
    715.2 came into effect on June 30, 1998 pursuant to Bill S-5,
An Act to amend the Canada Evidence Act and the
    Criminal Code in respect of persons with disabilities, to amend the Canadian
    Human Rights Act in respect of persons with disabilities and other matters and
    to make consequential amendments to other Acts,
1st Sess., 36th Parl., 1997-1998
    (assented to 12 May 1998), S.C. 1998, c.9 (Bill S-5). The preamble of Bill
    S-5 included Parliaments recognition that:

Whereas accommodating the needs of persons
    with disabilities is particularly important to
ensure that they can be full
    participants in and contributors to Canadian society
;

And Whereas Parliament is
committed
    to ensuring equal access to the criminal justice system for persons with
    disabilities
. [Emphasis added.]

[52]

The intent
    of the provision was clearly stated by then Minister of Justice, the Honourable
    Anne McLellan, before the House of Commons Standing Committee on Justice and
    Human Rights, 36th Parl., 1st Sess. (12 March 1998), at p. 1540:

As already provided in s. 715.1 for
    witnesses under the age of 18, the videotaped statement of a disabled person
    would be admissible in evidence only if this person, when testifying, adopts
    the contents of the videotape. This means the witness
would not have to
    repeat once more all the facts relating to the offence, which in some cases may
    be difficult because of a disability affecting communication or some other type
    of disability
. At the same time, the witness is available for
    cross-examination. Witnesses who might, in the past, have been practically
    unable to testify will be able to do so under this new provision. [Emphasis
    added.]

[53]

In the
    House of Commons, then Member of Parliament, Paul Forseth, repeated the
    intention set out in the legislative summary of Bill S-5:
House of Commons Debates,
36th Parl., 1st Sess., No. 57
    (11 Feb 1998) at 3743. The relevant excerpt from the legislative summary and
    House of Commons debates reads:

The
    intention behind section 715.1 is to preserve the evidence of children who
    might not otherwise recall events that took place months or years before and
    also to remove the need for them to repeat their story many times, both in an
    out of court. Clause 8 of the bill would allow similar videotaped evidence by
    persons with disabilities who might have difficulty communicating due to
    disability.

[54]

In my view,
    it is apparent that the intention of Parliament in introducing the language now
    contained in s. 715.2 of the
Criminal
    Code
was to
    increase access to justice for people with disabilities who would, due to
    physical, cognitive or other types of disabilities affecting their ability to
    communicate in court, otherwise be prevented from participating in the
    proceedings.

[55]

A
    consideration of this purpose in the light of the purpose of s. 715.1
    highlights the similarities, not the differences, in purpose between the
    sections. In
R. v. L. (D.O.)
, [1993] 4 S.C.R.
    419, LHeureux-Dubé J. held that one of the primary purposes of s. 715.1
    is to remove or limit the barriers encountered by child victims and witnesses.
    She noted, at pp. 444-445:

I find that [s. 715.1] is
    designed to preserve an early account of the child's complaint in order to
    assist in the discovery of the truth and to provide a procedure for the
    introduction of the child's story into evidence at the trial. R.G. Mosley,
    senior general counsel for the Department of Justice, said when introducing
s. 715.1
before
    the Standing Senate Committee on Legal and Constitutional Affairs that:

... the videotape ...
    is simply a means of getting the child's earlier statement before the court in
    the belief that early statement will be an accurate and, hopefully, more
    complete account of what took place.

(Standing Senate
    Committee on Legal and Constitutional Affairs,
Proceedings
, Issue
    No.2 (November 20, 1986) at p. 2:23.)

[56]

She
    continued, at p. 450:

Section 715.1 of
    the
Criminal Code
acts to remove the pressure placed on a
    child victim of sexual assault when the attainment of "truth" depends
    entirely on her ability to control her fear, her shame and the horror of being
    face to face with the accused when she must describe her abuse in a compelling
    and coherent manner. Section 715.1 ensures that the child's story
    will be brought before the court regardless of whether the young victim is able
    to accomplish this unenviable task.

[57]

In my view,
    both sections have, as an underpinning, the interests of getting at the truth
    and ensuring that vulnerable people who, for different reasons, are limited in
    their ability to communicate in court, are nevertheless provided with an
    opportunity to be heard:
C.C.F.
, at para. 42;
R. v. Untinen
, 2015 BCSC 1796, [2015] B.C.J. No. 2998,
    at paras. 89-90; Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst,
    eds.,

Sopinka, Lederman & Bryant: The Law of
    Evidence in Canada
, 4th ed. (Markham: LexisNexis Canada, 2014), at p. 428. While
    there are, no doubt, certain vulnerabilities that are unique to child witnesses
    and witnesses with disabilities, the overarching purpose of s. 715.1 and s.
    715.2 is, for the most part, the same.

(b)

The Meaning of Adopts in s. 715.2

[58]

Although I
    conclude that ss. 715.1 and 715.2 share the same overarching mandate; namely,
    increasing access to justice for vulnerable groups of people and obtaining the
    best evidence from vulnerable witnesses, I must still consider whether the word
    adopts in s. 715.2 must be interpreted differently than in s. 715.1, given
    that the provisions govern different groups of witnesses.

[59]

The
    greatest guidance comes from the Supreme Courts consideration of the term in
    the context of s. 715.1. In

C.C.F.
, Cory J. was faced with the very argument
    raised in this appeal  whether s. 715.1 required that the witness have a
    present recollection of events for the statement to be admitted under s. 715.1.
    In rejecting this courts holding in
R. v. Toten
(1993), 14
O.R. (3d) 225
(C.A.) that a child needed to be able to
    verify the accuracy and contents of the statement based on present
    recollection, Cory J. made several observations that are relevant to assessing
    the same question in the context of s. 715.2.

(i)

Interpret "adopts" in a Manner that is
    Consistent with the Aim and Purpose of the Legislation

[60]

First, at
    para. 35, Cory J. observed that the term adopts is capable of several
    meanings, but must be given an interpretation that is consistent with the aim
    and purpose of the legislation. As noted above, ss. 715.1 and 715.2 share a
    common goal of facilitating the truth-seeking process in cases involving two
    groups of vulnerable witnesses  children and people with disabilities  whose
    age or disability impacts their ability to communicate evidence in court. As
    such, Cory J.s analysis of the term adopts under s. 715.1 informs the
    analysis of how adopts should be interpreted in s. 715.2.

[61]

The
    appellant places emphasis on the fact that, in enacting s. 715.2, Parliament
    created a separate provision from s. 715.1 and must therefore, have intended
    the sections to be treated differently. In my view, this position places undue
    focus on form and fails to consider the substance and purpose behind the
    provisions. There is nothing on a plain reading of s. 715.2 that suggests that
    Parliament intended the word adopts to be interpreted differently than in s.
    715.1. Indeed, as discussed above, both the legislative history and the purpose
    of the sections suggest Parliament intended for the provisions to work
    congruently over two different groups of witnesses.

[62]

That
    legislative intent is further reflected in Bill C-2
,
An Act to amend the Criminal Code (protection of
    children and other vulnerable persons) and the Canada Evidence Act,
1st Sess., 38th Parl., 2005
    (assented to 20 July 2005), S.C. 2005, c. 32 (Bill C-2). Clause 23 of Bill
    C-2 amended s. 715.1 and s. 715.2 to expand the circumstances under which a
    witness video-recorded statement may be admitted as evidence by making the
    provisions available in any criminal proceedings, not only the enumerated list
    of predominantly sexual offences that existed prior to Bill C-2.

[63]

In
    expanding the protection provided by each section to cover any criminal
    proceeding, Bill C-2 drew no distinction between s. 715.1 and s. 715.2: Canada,
    Parliament, 
Bill C-2: An Act
    to Amend the Criminal Code (Protection of Children and other Vulnerable
    Persons) and the Canada Evidence Act
 by Robin MacKay, Legislative Summary
    480-E (revised 16 June 2005), at pp. 12-13; Nicholas Bala et al., 
Bill C-2: A New Law for Canadas Child Witnesses


(2005)

32 C.R.
    (6th) 48. This further supports the conclusion that s. 715.1 and s. 715.2 are
    meant to function in the same way.

[64]

For similar
    reasons, I do not accept the appellants argument that by including the words
    able to communicate evidence in s. 715.2, Parliament intended that the
    section only apply to witnesses with a present recollection of the events
    described in the statement. The requirement in s. 715.2 that the witness be
    able to communicate evidence, in my view, refers to the simple and relatively
    low threshold of having the capacity to testify under ss. 6 and 16 of the
CEA
.
The limitation created by the language
    able to communicate in s. 715.2 functions to exclude witnesses who do not
    have the testimonial competence, which the Supreme Court in
R. v. Marquard
,
[1993] 4 S.C.R. 223, at p. 237, defined
    as the basic ability to perceive, remember and communicate.


[65]

Moreover,
    it is also worth noting that at the same time as adding s. 715.2 to the
Criminal Code
,
Bill S-5 also amended s. 6 of the
CEA
to provide that witnesses with physical or
    mental disabilities who have difficulty communicating would be permitted to
    give evidence by any means that enables the evidence to be intelligible. This
    contemplates witnesses whose difficulty is making themselves understood by
    others, and allows their testimony to be given with assistive devices and other
    techniques. If Parliaments only intention was to facilitate testimony for
    those who have difficulty articulating speech as a result of a mental or
    physical disability, but who have a present recollection of the events, s.
    715.2 would not have been necessary, as s. 6 of the
CEA
addresses these concerns.

[66]

The Supreme
    Court has cautioned against importing different tests between related
    provisions where it is apparent that Parliament had no such intention. In
R. v. D.A.I.,
2012 SCC 5, [2012] 1 S.C.R. 149, the
    Supreme Court found that s. 16 of the
CEA
, which governs the testimonial competence of adult witnesses
    whose mental capacity is challenged, does not require anything other than the
    testimonial competence of children. In refuting the argument that adults with
    mental disabilities should be subjected to additional questioning about the
    nature of the obligation to tell the truth, McLachlin C.J.C., for the majority,
    stated at para. 52:

The final and most
    compelling answer to the equivalency argument is simply this: When it comes to
    testimonial competence, precisely what, one may ask, is the difference between
    an adult with the mental capacity of a six-year-old, and a six-year-old with
    the mental capacity of a six-year-old? Parliament, by applying essentially the
    same test to both under

s. 16(3)

and

s.
    16.1(3)

and

(6)

of
    the

Canada Evidence Act
, implicitly finds no difference. In my
    view, judges should not import one.

[67]

In my view,
    these words are apt in interpreting the adoption requirement in s. 715.2 in the
    light of how the Supreme Court has interpreted the term adopts in the context
    of s. 715.1. Interpreting the adoption requirement in the same way in both
    sections not only contributes to the truth-seeking process but also ensures that
    persons with disabilities are full participants in and contributors to Canadian
    society.

(ii)

The Deleterious
    Effects of Imposing a present recollection Requirement for Admissibility

[68]

The second
    important observation that emerges from
C.C.F.

and which bears on the appropriate meaning to be ascribed to
    adopts in s. 715.2 is found in Cory J.s analysis of the deleterious effect
    of imposing, as a requirement for admissibility under s. 715.1, that a child
    have a present recollection, as suggested in
Toten
. To this effect, Cory J. stated at para. 41:

The test set out in

Toten

would prevent a
    child who has little, or no memory of the events from "adopting" the
    video and it would therefore be inadmissible under

s
.

715
.
1
. However, it is precisely in this situation that
    the video is most needed. Children, particularly younger ones, are prone to
    forget details of an event with the passage of time. A videotape made shortly
    after the event is more likely to be accurate than the child's

viva voce

testimony, given months later, at
    trial. It is quite possible that a young child will have a recollection of
    going to the police station and making the statement and of her attempt to be
    truthful at the time yet have no memory of the unpleasant events. This is
    particularly true where the elapsed time between the initial complaint and the
    date of trial is lengthy.
If effect is to be given to the aims
    of s. 715.1 of enhancing the truth seeking role of the courts by
    preserving an early account of the incident and of preventing further injury to
    vulnerable children as a result of their involvement in the criminal process,
    then the videotape should generally be admitted.
[Emphasis added.]

[69]

Requiring a
    witness with a disability to testify to a present recollection of the events in
    question as a pre-condition to the admissibility of the video-recorded
    statement under s. 715.2 would have a similarly deleterious effect. A
    requirement of present recollection would exclude all people whose disability
    caused them to lose or have a significantly diminished memory of the events in
    question. For example, a person who has suffered a serious brain injury that
    has caused him to lose all memory of a past event may nevertheless have
    provided a clear narrative of events within a reasonable time after the alleged
    offence. The appellants interpretation of s. 715.2 would put such a witness
    outside the scope of s. 715.2.

[70]

Clearly,
    the purpose of rendering greater access to justice and the truth-seeking
    function of s. 715.2 is not met by excluding all persons whose mental
    disability has impacted their memory, such that they have difficulty
    communicating their evidence in court.

[71]

Furthermore,
    Cory J. expressly rejected, at para. 42, the notion that s. 715.1 be restricted
    to a child witness who has a recollection of events but is unable to articulate
    them, concluding that this approach was too narrow to meet the truth-seeking
    goal of s. 715.1. He stated:

[This approach] fails to take into
    account the broader purposes of the legislation. Trial judges do not expect
    children to be perfectly articulate. They know that the examination-in-chief of
    a child will not precisely match the ideal narrative form of an adult's
    testimony. Indeed, the trial judge has the discretion to permit counsel to use
    leading questions on examination-in-chief in order to get the child's evidence
    before the trier of fact.
Children are vulnerable victims and for a number
    of reasons their testimonial capacities may range from a complete inability to
    articulate recalled events to an ability to recount some but not all of the
    events. In any of these circumstances, the admission of a videotaped statement
    would assist a court in arriving at the truth. It would be inappropriate to
    construe the section as one which only addresses the "inarticulate
    complainant".
[Emphasis added.]

[72]

Very
    similar considerations are in play when it comes to witnesses who have
    disabilities that affect their ability to give evidence in court. A disability
    can affect a persons ability to communicate evidence in court in different
    ways, depending on the nature of the disability. It could be that the witness
    has difficulty articulating evidence due to a physical or mental disability,
    but it could also be that a witness is no longer able to recall the evidence
    due to their disability and is therefore unable to communicate it to the court.

(iii)

Lack of Present Recollection and Reliability

[73]

Finally,
    Cory J. recognized the concern about the inability to cross-examine a child
    witness who has no independent recollection of the events, but also noted, at
    para. 44, important conditions in s. 715.1 that provide the requisite level of
    reliability and trustworthiness of the video-recorded statements for their
    admission into evidence, including: (a) the requirement that the statement be
    made within a reasonable time; (b) the trier of fact can watch the entire
    interview, which provides an opportunity to observe the witness demeanor, and
    assess the personality and intelligence of the witness; and (c) the requirement
    that the witness attest that he or she was attempting to be truthful at the
    time that the statement was made. Further, Cory J. noted that the witness can be
    cross-examined on whether he or she was actually being truthful when the
    statement was made. Finally, he noted that where the witness has no independent
    memory of the events there is an obvious necessity for the video-recorded
    evidence.

[74]

These
    factors are equally applicable in the context of s. 715.2. These conditions
    provide statements made by people with disabilities who are unable to
    communicate their evidence at trial with the requisite reliability to
    compensate for the lost opportunity to cross-examine on the forgotten event.

(5)

Conclusion

[75]

In the
    light of the wording of s. 715.2 in the context of the

Criminal Code
and Parliaments intention, the
    inescapable conclusion, in my view, is that adopts in s. 715.2 has the same
    meaning as adopts in s. 715.1.

[76]

It follows
    that I would not give effect to this ground of appeal.

Issue 2  Did the trial judge err
    in dismissing the appellants application for a mistrial following the Crowns
    closing address, and by ruling that any prejudice arising from the Crowns submissions
    could be addressed through correcting instructions?

(1)

Arguments on Appeal

[77]

As he did
    at trial, Mr. Osborne argued on appeal that the Crowns closing submissions
    improperly commented on his right not to testify under s. 4(6) of the
CEA
and prejudiced his right to a fair trial.
    Second, as the trial judge noted, the Crowns remarks that the defence was
    hiding from the crucial issue of intent invited the jury to shift the onus to
    Mr. Osborne on this issue. Third, the Crown knew that the defence was not hiding
    from the question of intent, as the defence gave the Crown an opportunity to
    have a Crown expert examine Mr. Osborne on this very question and the Crown
    chose not to do so. Fourth, the Crown misstated the evidence with respect to
    the instructions defence counsel gave to Dr. Wiseman, as there was no evidence
    about Dr. Wiseman being instructed not to ask Mr. Osborne about what he was
    thinking when he assaulted Ms. Neff.

[78]

Based on
    what Mr. Osborne refers to as the Crowns significantly prejudicial closing
    address to the jury, he argues that the trial judge erred in not granting a
    mistrial.

[79]

In the
    alternative, says Mr. Osborne, if this court concludes that a mistrial was not
    required, the trial judges jury instructions did not cure the prejudice to him
    caused by the Crowns submissions. The instructions provided no assistance on
    the violation of s. 4(6) of the
CEA
.
Moreover, the instructions strongly
    suggested to the jury that the defence counsel knew Mr. Osborne was trying to
    hide his guilt. Significantly, the instructions did not address the
    impermissible inference of guilt or cure the Crowns attack on defence
    counsels integrity.

[80]

The Crown
    submits that the trial judge did not err in the exercise of his discretion not
    to grant a mistrial. This case fits among the vast majority of cases in which
    corrective instructions will ensure fairness. The trial judges forceful
    corrective instruction negated the Crowns comments.

(2)

Applicable Principles

[81]

The
    declaration of a mistrial is a remedy of last resort, reserved for the clearest
    of cases, where no remedy short of a mistrial will adequately redress the
    actual harm occasioned. A mistrial should only be ordered where it is
    necessary to prevent a miscarriage of justice:
R. v. A.G.
, 2015 ONCA 159, [2015] O.J. No. 1217, at para. 50;
R. v. Chiasson
, 2009 ONCA 789, [2009] O.J. No. 4682, at
    para. 14;
R. v. Burke
, 2002 SCC 55, [2002] 2 S.C.R.
    857, at para. 77.

[82]

In
R. v. Rose
, [1998] 3 S.C.R. 262, at para. 126, the
    majority made it clear that a trial judge is in the best position to assess the
    impact of counsels remarks to the jury and to correct any unfairness or
    inaccuracies with appropriate jury instructions. The decision of whether to
    grant a mistrial is a matter of discretion of a trial judge. It follows that an
    appellate court should only interfere where such a response is clearly wrong or
    based on an erroneous principle:
Chiasson
, at para. 14;
R. v. A.G.
, at para. 51.

(3)

Principles Applied

[83]

I agree
    with the trial judges assessment of the Crowns closing  the rhetorical
    excess was prejudicial and the misstated evidence was problematic. However, I
    see no reason to interfere with the exercise of the trial judges discretion in
    refusing to grant a mistrial and instead to address the inaccuracies and
    potential unfairness the trial Crown created through corrective instructions.

[84]

I note that
    the impugned comments were an isolated part of the trial Crowns jury address.
    I further note that the Crown did not expressly comment on Mr. Osbornes not
    having testified. Anything said to this effect was implicit. And, it was, in my
    view, negated by the trial judges repeated emphasis in his instructions that
    there was no onus on Mr. Osborne to testify that he did not have the intent for
    murder and that the Crown bore the burden to prove intent. Moreover, in the
    post-charge discussion, trial counsel did not object to the trial judges
    corrective instructions regarding the Crowns jury address.

[85]

Finally, as
    can be seen from the corrective instructions set out above, the jury was
    advised in no uncertain terms that there was no evidence that the defence
    instructed Dr. Wiseman not to speak to Mr. Osborne about what he was thinking
    when he was assaulted; that the Crown bears the burden of proof on the issue of
    intent; that the accused person does not bear the burden to prove that he did
    not have the intent for murder; and that there is no evidence that the defence
    hid from the issue of intent. In my view, any harm caused by the Crowns
    closing submissions was ameliorated by the trial judges strong correcting
    instruction to the jury.

[86]

The jury is
    presumed to have understood and followed these instructions:
R. v. Corbett
, [1988] 1 S.C.R. 670, at p. 695;
R. v. Pannu
, 2015 ONCA 677, 127 O.R. (3d) 545, at
    paras. 61 and 98.

[87]

I would
    therefore not give effect to this ground of appeal.

E.

DISPOSITION

[88]

On the basis
    of this analysis, I would dismiss the appeal.

Released: February 15, 2017 ("GE")

"Gloria Epstein J.A."

"I agree. M. Tulloch J.A."

"I agree. K.M. van Rensburg J.A."





[1]

Although the Crown only planned to tender the second
    video-recorded statement Mr. Osmond made to the police on July 22, 2008, the
    trial judge held that fairness dictated that the Crown was required to tender
    the first statement if the Crown tendered the second.


