



WARNING

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

An order restricting
publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
(4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
sections of
the Criminal Code
provide:

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information that could identify the victim or a witness shall not be published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

(a)     any of the following
offences;

(i)      an offence
under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
under this Act, as it read at any time before the day on which this
subparagraph comes into force, if the conduct alleged involves a violation of
the complainants sexual integrity and that conduct would be an offence
referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

(2.1) Subject to subsection (2.2),
in proceedings in respect of an offence other than an offence referred to in
subsection (1), if the victim is under the age of 18 years, the presiding judge
or justice may make an order directing that any information that could identify
the victim shall not be published in any document or broadcast or transmitted
in any way.

(2.2) In proceedings in respect of
an offence other than an offence referred to in subsection (1), if the victim
is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform
the victim of their right to make an application for the order; and

(b) on application of the victim
or the prosecutor, make the order.

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

(4)     An order made under this
section does not apply in respect of the disclosure of information in the
course of the administration of justice when it is not the purpose of the
disclosure to make the information known in the community. 2005, c. 32, s. 15;
2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss.
22,48; 2015, c. 13, s. 18.

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

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





COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. B.G., 2022 ONCA 92

DATE: 20220202

DOCKET: C67149

MacPherson, Roberts and Miller
JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

B.G.

Appellant

James Lockyer and Alexander Ostroff, for the appellant

Jennifer Epstein and Jacob Millns, for
the respondent

Heard: September 28, 2021 by video conference

On appeal from the convictions entered
on February 20, 2019 and the sentence imposed on July 3, 2019 by Justice Leonard
Ricchetti of the Superior Court of Justice, sitting with a jury.



B.W. Miller J.A.:


A.

Overview

[1]

Following a trial by jury, the appellant was
convicted of sexual interference, sexual assault and other historical offences committed
against his daughter.

[2]

The main issue on appeal is whether the Crown
counsel at trial invited the jury to rely on impermissible racial or cultural
stereotyping through her cross-examination of defence witnesses and through statements
in her closing address. The question is whether the absence of a specific instruction
to the jury cautioning against impermissible reasoning relying on racial or
cultural stereotyping of the defence witnesses resulted in an unfair trial. For
the reasons that follow, I conclude that it did and would allow the appeal, set
aside the conviction, and order a new trial.

[3]

With respect to the appellants second
submission, however, I do not agree that the trial judge made any error in his
W.(D.)
instruction to the jury with respect to the burden of proof.

B.

Background

[4]

In January 2016, the complainant N.G., who was
then aged 31, reported to the police that her father, the appellant B.G., had
sexually and physically abused her from the time she was 6 or 7 years old until
she was 14. The appellant was charged with sexual assault, sexual interference,
invitation to sexual touching, and uttering threats. He was convicted as
charged, and the trial judge imposed a sentence of 8 years imprisonment.

[5]

The complainant testified to almost daily sexual
abuse by the appellant, and to the appellant regularly beating her and her
sister, brother, and mother, as well as the children of the family who lived
with them (the B. family). She also testified that over the years she had told
members of her family (the G. family) and others about the sexual abuse, and that
one of the persons she told  one of the two daughters of the B. family  told
the complainant that she too had been sexually assaulted by the appellant.

[6]

The appellant testified and denied the
allegations. The defence called seven witnesses, including the complainants
mother, aunt, sister, brother, and the two daughters of the B. family. The
complainant testified she had told each of these witnesses about the abuse prior
to her eventual disclosure to the police. Each of the witnesses denied this,
and each denied having observed any sexual or physical abuse by the appellant or
any signs of it. However, it was uncontested at trial that the complainant told
a friend in Grade 7 that she was being sexually abused and she believed it was by
her father.

[7]

The appellant and his wife were immigrants from
India. Although the complainant was born in Canada, she spent most of the first
three years of her life in India, where she was raised by her grandparents and her
aunt and uncle before she was sent back to Canada to live with her parents. It
was profoundly shocking to her to be returned to Canada and to discover that
her aunt and uncle in India were not actually her biological parents. As she
grew up, the complainant frequently clashed with her parents over what she  as
well as her parents and siblings  characterized at trial as a traditional Indian
upbringing. The complainants parents imposed greater restrictions on the
complainant than the parents of the complainants non-Indian peers at school. The
complainant was denied privileges that were common among her peers, such as dating
and going with friends to the mall or for sleepovers. There were restrictions
on how she could dress and cut her hair and on what she watched on television.
There was tension with her parents over her desire to integrate into non-Indian
culture.

[8]

According to the complainant, the appellant
sexually abused her on a regular basis from the time she was around 6 years old
and threatened he would kill her if she told. The complainant testified that it
was only after sex education class when she was 13 that she realized the nature
of what the appellant was doing. It was at that time she told her friend that
she was being sexually abused. The claimant testified that the sexual abuse only
stopped when she was 14, after she told her mother. She testified there was a
family meeting at that time where her mother confronted her father.

[9]

When the complainant was 15, she had a boyfriend
several years older whom she kept secret from her parents. Her boyfriend would
occasionally sneak into the house to see her. The two were eventually
discovered. This was traumatic for the complainants parents and the
complainant was punished and forbidden from seeing her boyfriend again. The
evidence diverged as to how the complainant was punished. The parents testified
that they yelled in anger at her and she was subjected to a strict curfew, denied
television viewing privileges, and given additional household chores. The complainants
evidence was that she was severely beaten by her father.

[10]

A few months later, the complainant ran away
from home. The complainant testified that the reason was to escape her fathers
physical and sexual abuse. During a group field trip to the Royal Ontario
Museum, the complainant separated herself from the group, phoned her boyfriend,
and told him she was running away and for him not to look for her. He persuaded
her to wait for him instead, and he took his parents van, picked up the complainant,
and the two ran away to Sarnia. They came to the attention of the police two
weeks later after each attempted suicide and were hospitalized for several
weeks. The police contacted the parents, but the complainant refused to speak
with them. Communicating through the police, the complainants parents told the
complainant she should marry her boyfriend. The complainants evidence was that
she had no intention of doing what her parents said. However, her boyfriend seized
on the idea, asked her to marry him, and after he persisted, she eventually
agreed. After a civil ceremony in Sarnia, they returned to Brampton for a
traditional Sikh ceremony. The complainant had a daughter sometime thereafter. Within
three years, the complainant was experiencing physical abuse from her husband
and left the marriage with her young daughter. Since that time, she has suffered
financial difficulty, instability, and poor health. She first brought her allegations
against the appellant to the police in 2016.

C.

Analysis

[11]

An ethnic or national culture consists in part
of shared beliefs and norms, social institutions, and patterns of behaviour. It
can include duties and obligations, and other beliefs about what ought to be done
and not done, and what constitutes a good life. The norms of any particular
culture is a question of fact to be resolved according to evidence led at
trial, including expert evidence if not a matter of everyday experience of the
average person:
R. v. Shafia
, 2016 ONCA 812, 341 C.C.C. (3d) 354, at
para. 241.

[12]

Where relevant to a matter in issue, it is
permissible for the trier of fact to consider whether the beliefs and practices
of a particular culture provide some evidence about what a particular person
believes, or explain that persons apparent behaviour:
R. v. Boswell
,
2011 ONCA 283, 277 CCC (3d) 156, at paras. 25-26;
R. v. S. (R.D.)
,
[1997] 3 S.C.R. 484, at paras. 124, 128-30, 133,
per
Cory J. It
is, however, impermissible to invite the trier of fact to adopt a stereotype
about cultural practices unsupported by evidence and use it to draw conclusions
about a witnesss beliefs or actions.

[13]

As explained more fully below, at trial the
norms of Indian culture as practiced by the appellants family and other
witnesses were first put in issue by the defence and then by the Crown,
although for different purposes. The defence in its cross-examination of the
complainant first raised the concept of honour for the purpose of explaining the
defence theory: that the complainant married out of a sense of obligation  an
obligation rooted in Indian culture  and later blamed the appellant for it. For
its part, the Crown advanced three propositions related to the defence witnesses
culture: (1) the witnesses culture  and specifically the concept of honour within
their culture  provided them with a motive to lie; (2) one aspect of the
witnesses culture is that the women of a household are dominated by the men
and will do what they are told, and (3) the witnesses culture permits lying
under oath. The first of these propositions was stated explicitly. The latter
two were premises underlying the questions put to the witnesses on
cross-examination. None were established by expert evidence, nor were they
admitted by the defence witnesses. Only the first of the three  the concept of
honour  had any foundation in evidence, and that was only in the context of
whether the complainant felt pressure from her parents to marry after running
away.

Indian culture in the defence theory at
trial

[14]

The defence theory at trial was that the
complainant ran away from home as the culmination of an on-going rebellion
against the strictness of her parents, particularly her father. It was
uncontroversial at trial that the complainants upbringing was common to traditional
Indian (and specifically Sikh) households. The defence theory was that the
appellant  as a husband and father in a traditional Indian household 
parented according to the norms of that culture and the complainant resented it.
Furthermore, the defence argued, the complainant attributed all of her
difficulties in life  an early and unhappy marriage, early parenthood, drug
addiction, poor health, financial problems  to the strictness of her parents,
and particularly her father, who provoked her adolescent rebellion and pressured
her to get married as a culturally appropriate resolution of the scandal of having
run away with her boyfriend. The defence argued that the complainant fabricated
the allegations against her father as revenge for the degree of control he had exercised
over her life as she was growing up  including his role in pressing her to get
married  and the suffering she believed resulted from it.

[15]

Accordingly, the fact that the appellants
parenting style was traditionally Indian was key context for the defence theory,
as was the allegation that the complainant submitted to marriage at the instigation
of the appellant.

Indian culture in case for the prosecution

[16]

In its closing address, the Crown appealed to
the witnesses participation in Indian culture to make the case that the
defence witnesses had a powerful motive to lie:

It doesnt take a rocket scientist to figure out
that anyone would have a motive to lie to protect a family member, regardless
of culture. People lie for family members all the time

Here,
the cultural element
is but one
added dimension.
Theres nothing wrong with it
, but the reality is
that family reputations mean a great deal in the traditional East Indian
culture, as a great deal depends on family reputation.
The actions of one
family member can tarnish the name of the entire family
This is a
traditional East Indian family. It is not easy for any family to have the
patriarch labelled as a sexual abuser of his own daughter when she was a child,
but in a community where the wrongdoing of one member is so significant to
the other members of the family if the word gets out, imagine the shame the
family is trying to protect themselves from now
. (Emphasis added).

[17]

Additionally, a frequent premise of the Crowns
questions on cross-examination was that the female defence witnesses were
acting under the dictation of men who told them to lie, and that the norms of their
culture permitted them to lie. The Crown thus pivoted from the common ground that
the family  in common with other traditional Indian families  was strict or
non-permissive in its parenting, to the contested propositions that this family
was also patriarchal, in the highly pejorative sense that the men of the
household ruled the women and children, and that it was acceptable according to
the cultural norms of the household to lie, particularly in order to protect
family honour.

[18]

The Crown argued on appeal that this was not a
matter of inviting the jury to apply cultural stereotypes, but a matter of drawing
individualized judgments about the credibility of the witnesses based on the evidence
of how they had behaved.

[19]

I do not agree. The cross-examination transcripts
show the trial Crown putting questions to the witnesses based on highly
pejorative assumptions about the witnesses culture that were not established
in the evidence. The trial Crown repeatedly used phrases such as culturally
and in your culture in contexts that suggested the witnesses answers were
not believable because they were contrary to the stereotypical cultural norms 
such as preserving family honour through secrecy and dishonesty  that were
presumed to govern the witnesses behaviour. The most direct example is in the
cross-examination of the appellants sister:

Q: And youre saying that if [N.G.] had told
you that, instead of trying to deal with it inside the family, you would have
called the police.

A: Yes.

Q: Youll agree with me that
culturally
that would have been a very difficult position to put yourself in
.

A: No, wrong is wrong.



Q: And Im going to suggest to you that once
your husband and your brother found out that you were gonna go speak to the
police, they told you that you couldnt.

A: No, it did not happen that way.



Q:  and furthermore, now theyve told you
that you have to come here and lie and say that [N.G.] never told you this.

A: No one ever told me like that.



Q: Im gonna suggest to you maam, that the
male members of your family, both your brothers, your husband, are never gonna
let you tell what you know.

A: No, thats not the truth.

[20]

A similar tack was taken with the
cross-examination of one of the daughters of the B. family, N.B., after she
denied having ever told the complainant that she too had been sexually abused
by the appellant. The Crown pressed that she was lying for cultural reasons:

Q: [N.B.], again, Im sorry to do this to you,
but Im going to suggest that although you were sexually touched by [the
appellant]
for personal and cultural reasons
you never wanted that to
be disclosed outside of your sister and your mother,
and for personal and
cultural reasons and because of some pressure from other people in the family
and the community
youve been told to come here today and say that [N.G.]
never told you that she was being sexually abused.



A: No, if it was true I would have said yes.
If nothing happened, I cannot say that something happened that never happened.
(Emphasis added).

[21]

Additionally, the Crowns argument that the
evidence established an individualized basis for concluding the witnesses were dominated
by men and therefore willing to lie to hide physical and sexual abuse 
primarily the evidence of the circumstances of the witnesses marriages   itself
relied on negative cultural stereotyping that the witnesses rejected and had no
evidential support.

[22]

The Crown cross-examined the B. family sisters
extensively about the circumstances of their marriages, which were arranged in
India by their families according to Indian custom. The B. family had travelled
to India for the wedding of their daughter A.B. in 1999, which had been
arranged in advance. The parents had expected to return to India the next year
to arrange a marriage for A.B.s sister N.B., but while they were there, an uncle
told the family of an educated young man who might be a match for N.B. She
ended up marrying as well, two weeks after her sister.

[23]

The Crown argued that the circumstances of N.B.s
marriage were consistent with concern that N.B. needed to marry quickly, before
the allegations about the appellants behaviour became widely known and the B.
familys reputation became damaged as a result of their close association with
the G. family.

[24]

Additionally, an unstated premise in several of
the questions put to N.B. was that the marriage  as an arranged marriage  was
something outside of her control and showed her to be under the domination of male
relatives.

Q. Okay. So the arranged marriage, did you
want to get married in India back then?

A. It was fine with me.

Q. Okay, and your family or your  who picks
the guy?

A. Well usually the parents do.

Q. Yes.

A. But we do have a choice of saying yes or
no. Its not like if they pick the guy we have to stick to them. So we have a
right to say no if we want to.

Q. All right. So your parents picked the guy?

A. We actually went to see him all together.
Its not like they met him before.



Q. And then your dad just said were here,
might as well get you done as well.

A. Yeah, you know how Indian parents, they
talk to their relatives saying I have a girl, if you know a guy just let me
know. So my uncle told him that theres a guy here. He has done his MB [ph] and
stuff so if we want to meet him, so we met him.

Q. Okay. So he was educated so...

A. Yeah.

Q. ...that was a good thing.

A. Yeah.

[25]

The Crown then asked:

Q. And how long after you first met him did
you actually marry him?

A. Maybe after a week or 10 days, Im not
sure.

Q. And you werent upset about that.

A. No, why would I be upset?

[26]

It was perfectly legitimate for the Crown to suggest
to N.B. that the circumstances of her marriage  a last-minute affair when
compared to the lead-time in advance of her sisters  supported the inference
that the family was aware of allegations that the appellant had engaged in
sexual abuse as the complainant alleged, and that N.B.s marriage should be
arranged before the word could get out. The premises of that question did not
rely on any negative stereotyping.

[27]

However, it was not fair for the Crown to suggest
through its questioning that the fact the B. sisters married according to the tradition
of arranged marriage is evidence they lacked agency. Both N.B. and A.B.
objected to this characterization of their marriages and of themselves and
there was no evidential support for it.

[28]

More broadly, the effect of the Crowns repeated
use of the preface in your culture when questioning the defence witnesses had
the effect of exoticizing them in the eyes of the jury, of insinuating that they
were not only different, but operated according to a different ethical system in
which the obligation to tell the truth was subordinate to protecting the family
from shame. The witnesses, particularly the B. family sisters  one a pharmacy
technician and the other an appeals officer with the Canada Revenue Agency  rejected
this stereotype as an accurate depiction of themselves. The witnesses not only
denied the direct accusation that they lied to protect the reputation of the
appellant, they denied the premises of the questions: that the women were not
independent, that arranged marriages are manifestations of patriarchy, and that
the concept of family honour would justify lying to protect the appellant.

[29]

The Crown was entitled to pursue the theory that
the defence witnesses were lying to protect the appellant. Similarly, the Crown
was entitled to put to the witnesses that they lacked agency, believed it was
permissible to lie to protect family honour, and were in fact lying at the
direction of male relatives. But where questioning is so heavily freighted with
negative cultural stereotyping  stereotyping that may subconsciously resonate with
the jurors even though the questions turned up empty  the questioning itself creates
a risk that without some instruction from the trial judge, a jury will seize on
the stereotype even though it is not established in evidence. In this case, where
the Crown effectively invited the jury to conclude the witnesses were lying
because their religion and culture either demanded it or excused it, there was
a risk that the jury would leap from the fact that the witnesses were Indian
women living in households governed by traditional Indian norms to the
conclusion they were therefore less likely to be truthful witnesses. In
particular, the jury ought to have been expressly instructed not to reason from
the facts that the witnesses were members of traditional Indian households
that value family honour, and that several of the witnesses had been married in
accordance with Indian custom, to the stereotype that Indian women are
culturally conditioned to submit to the domination of men, tolerate physical
and sexual abuse by the family patriarch, and lie about it under oath to
protect family honour.

The failure to object

[30]

The defence did not raise any objection to the
Crowns questions on cross-examination and did not ask that the jury be given
any cautionary instruction. The Crown argues that this was tactical. The defence
not only did not object to the questioning but introduced the idea  through
the cross-examination of the complainant  that a refusal to submit to an
arranged marriage or marrying outside the community was frowned upon. This was
in support of the defence theory that the complainant fabricated her allegations
as retribution for being forced into a marriage by the appellant.

[31]

I agree that the defences failure to ask for an
instruction is some evidence that the defence may not have viewed an
instruction as necessary. But I do not agree that it was a tactical decision. The
defence position was that pressure was put on the complainant to marry to save
family honour. It does not follow that the defence was thereby committed to the
proposition that arranged marriages are a manifestation of the subjugation of
women, and any woman who contracts an arranged marriage  such as the B. family
sisters or the complainants mother or aunt  are likely dominated by men and
lack the necessary agency to tell the truth in court. There was no equivalency
between the argument advanced by the defence and the proposition insinuated by
the Crown.

[32]

Furthermore, the defence did initially object
that the Crowns line of questioning about the B. familys marriages was
irrelevant. The trial judge disagreed, and later explained:

its very clear to me that the Crown is going
to be alleging  that the families are tight, that the males dominate, the
males control it, thats part of the Sikh culture, part of the culture from
India and thats why theres a little more latitude being given as to what
happens in India, how they discipline the children and so forth.

[33]

The trial judge recognized the stereotype that
was put into play, even if he did not perceive why it would be problematic, and
it is of less significance that defence counsel did not renew the objection
when reviewing the closing charge to the jury, given that the trial judge had been
unpersuaded by the objection earlier in the proceeding.

[34]

In any event, a failure to object is not
determinative and the responsibility for the jury charge ultimately falls on
the trial judge:
R. v. Ellard
, 2009 SCC 27, [2009] 2 S.C.R. 19, at
para. 47. This court has repeatedly held that trial judges are required to
respond through specific corrective instructions where Crown improprieties
inject a particular risk that the jury will engage in an impermissible pattern
of reasoning:
R. v. L.L.
, 2009 ONCA 413, 96 O.R. (3d) 412, at para. 52.
In this case, similar to
R. v. J.S.
, 2018 ONCA 39, 140 O.R. (3d)
539, there was a real danger that the jury would accept the proffered
stereotypes in place of properly assessing the evidence, and that this would
harm the credibility of the defence witnesses in the jurors minds, and bolster
the credibility of the complainant. The result was an unfair trial

[35]

Accordingly, I conclude that the trial was
unfair, and would allow an appeal on this basis and order a new trial.

The W.(D.) Instruction

[36]

Although it is not necessary for the disposition
of this appeal, I do not agree that the trial judge made any error with respect
to the
W.(D.)
instruction to the jury. When the instruction is read as
a whole, it is clear that the trial judge instructed the jury to consider the
whole of the evidence, including the evidence of the defence witnesses and
Crown witnesses, in determining whether any of the evidence raised a reasonable
doubt as to the appellants guilt. Nothing further was required.

D.

Should the Publication Ban be lifted?

[37]

Regardless of the outcome of the appeal or the
appellants position, the complainant, through the respondent, has asked that
this court set aside the order made by the preliminary hearing judge, Justice P.
Band, on March 27, 2017, under s. 486.4 of the
Criminal Code
,

R.S.C.,
1985, c. C-46, that any information that could identify the complainant not be
published. The complainant wishes for the ban to be lifted so she can openly
speak about this part of her life. The Crown supports the complainants
request. The appellant takes no position on the request.

[38]

The difficulty with this request is that the
publication ban ordered by the preliminary inquiry judge may overlap with the
trial judges publication ban concerning anything dealing with the
voir
dire
on evidentiary issues. There was no request to lift the latter ban.
As a result, I would decline to make this order. Given my proposed disposition
of the appeal, there would be a new trial, and the trial judge would be better
placed to determine this issue.

Disposition

[39]

I would allow the appeal, set aside the
conviction, and order a new trial.

Released: February 2, 2022 J.C.M.



B.W.
Miller J.A.

I
agree. J.C. MacPherson J.A.

I
agree. L.B. Roberts J.A.


