R. v. L.L. (May 20, 2009)

CITATION: R. v. L.L., 2009 ONCA 413

DATE: 20090520

DOCKET: C46162

COURT OF APPEAL FOR ONTARIO

Rosenberg, Feldman and Simmons JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

L.L.

Appellant

Christopher Hicks and Catriona Verner, for the appellant

James K. Stewart, for the respondent

Heard: November 20, 2008

On appeal from the conviction entered by Justice R. Riopelle of the Superior Court of Justice, sitting with a jury, on September 8, 2006.

Simmons J.A.:

I. Overview

[1] Following a jury trial, the appellant was convicted of committing incest against his developmentally challenged daughter.

[2] The complainant was 27 years old at the time of trial but had the intellectual capacity of a thirteen-year-old. She testified that the appellant began having intercourse with her when she was eighteen years old and continued to do so until she moved out of the family home when she was 25. The complainant said the assaults happened “about four or five times for five days out of seven” and estimated that they occurred “almost 2,000 times in a year.”

[3] In addition to calling the complainant as a witness, the Crown played a videotaped statement taken from the appellant by the police on May 20, 2005. The appellant denied the complainant's allegations. However, the Crown relied on portions of the appellant's statement as supporting aspects of the complainant's testimony and used the videotaped statement for the purposes of cross-examination.

[4] The appellant, his wife and their son, testified for the defence. The appellant again denied the complainant's allegations. The appellant's wife and son both indicated that although the appellant was alone with the complainant much of the time, neither had observed anything untoward in the relationship

[5] The appellant raises two main issues on his conviction appeal:

i) Did the trial judge err in dealing with issues relating to whether the complainant had a motive to fabricate?

ii) Did the Crown engage in misconduct that created a miscarriage of justice? [1]

[6] For the reasons that follow, I would allow the appeal, set aside the appellant’s conviction and order a new trial.

II. Analysis

1. Did the trial judge err in dealing with issues relating to whether the complainant had a motive to fabricate?

[7] The appellant submits that the trial judge made two errors in dealing with issues relating to the whether the complainant had a motive to fabricate. First, he failed to edit the appellant’s statement to exclude questions inviting an explanation concerning why the complainant would fabricate her allegations. Second, he erred in his instructions to the jury by failing to correct misleading statements made by the Crown concerning the complainant’s motive to fabricate and by failing to caution the jury against attributing undue weight to the absence of evidence that the complainant had a motive to fabricate.

[8] I will deal with these issues in turn.

a) Did the trial judge err by failing to edit the appellant's statement?

[9] During his videotaped statement to the police, the appellant was asked on two occasions why the complainant would be making the allegations:

Detective: Okay. The allegations are that you sexually abused her from the time of 18 years old. What do you have to say about that?

Accused: It never happened.

Detective: Okay. Why would she be saying this?

Accused: Your guess is as good as mine. She has been in and out, in problems with boys. We have crashed down on her hard a few times about her boys' situations. And she has been screaming and yelling in the past... for five or six years, wanting a baby and that. And we go months, talking with her about that, and responsibilities.

And then she would say, okay... and then two months later, she would be right back at it again. She has gotten into all (inaudible) boys. We have restricted her movements with them boys. And she rebelled against us and (inaudible). It could be all that. I have no idea.

Detective: So you have no idea why she is making these claims?

Accused: No.

Detective: And you are telling me that they are totally false?

Accused: At home there, she leaves no indications of any problems between me and her.

...

Detective: Why would she be saying this stuff?

Accused: And your guess is as good as mine.

[10] After ruling that the appellant's videotaped statement to the police was voluntary, the trial judge raised an issue concerning the propriety of the police officer's questions to the appellant about why the complainant would be making the allegations. Defence counsel at trial (not Mr. Hicks), observed that the challenged portions of the statement might actually be helpful to the appellant because the appellant's answers would likely answer a question that would be in the mind of the jury. Nonetheless, defence counsel submitted that the challenged questions and answers should be edited from the statement because an accused person has no obligation to explain why a complainant might fabricate allegations and because the questions invited the appellant to state an opinion about the complainant's state of mind.

[11] The trial Crown (not Mr. Stewart), submitted that it is neither customary nor correct to edit this form of questioning from police statements because an accused’s out-of-court statements explaining why a complainant might lie are properly admissible.

[12] The trial judge decided not to edit these portions of the appellant’s statement but indicated he would provide the jury with special instructions concerning their use. Immediately before the videotaped statement was played for the jury, the trial judge gave the jury the following instructions:

You will recall that at the opening of the trial this morning I said to you: "There is absolutely, under our system of law, no obligation on Mr. L. to testify and to produce any witnesses or to produce any exhibits." The responsibility here rests with the Crown to prove their case beyond a reasonable doubt. And that means several things but one of the things is, he does not have to testify.

...

During the course of [the police] investigation, there were, on two occasions a specific question asked by the police officer of Mr. L., a question which could not have been asked of Mr. L. had he been in court.

So when you listen to that question, remember, as I have indicated to you on several occasions already, he does not have to prove anything, he does not have to supply any evidence. The responsibility is always with the Crown.

The particular question has something to do with: “Why would your daughter make up these allegations? And why would she say these things about you?” And that invites from him a response. That invites from him an explanation. It puts him on the defensive. He has to come up with some reasonable explanation. At law, there is no obligation on him to do that.

[13] I agree that the impugned questions and answers should not have been placed before the jury. However, in light of the clear and contemporaneous instructions given by the trial judge, I am satisfied that no prejudice arose in this case from the failure to edit this portion of the appellant’s statement.

[14] Questions in cross-examination that ask an accused person to explain why a complainant would fabricate his or her allegations are improper for two reasons.

[15] First, as a general matter, it is improper to invite one witness to comment on the veracity of another: R. v. Brown (1982), 1 C.C.C. (3d) 107 (Alta. C.A. ) affirmed [1985] 2 S.C.R. 273. This principle has particular application to an accuser and the accused. As noted by Charron J.A. in R. v. Rose, (2001), 53 O.R. (3d) 417 ( C.A. ) at para. 27, this court “has held repeatedly that it is improper to call upon an accused to comment on the credibility of his accusers”.

[16] Second, questions of this type create a risk of shifting the burden of proof because they may mislead the trier of fact into focussing on whether the accused can provide an explanation for the complainant’s allegations instead of focussing on the central issue of whether the Crown has proved beyond a reasonable doubt that the allegations are true: R. v. S.(W.) (1994), 18 O.R. (3d) 509 ( C.A. ), leave to appeal to the S.C.C. refused, [1994] S.C.C.A. No. 290. ; R. v. Ellard (2003), 172 C.C.C. (3rd) 28 (B.C.C.A.). As this court said in R. v. F.(C.), [1996] CanLII 623 (Ont. C.A. ), such questions create a risk that the jury may draw an adverse inference if the accused fails to provide a “reasoned or persuasive” response.

[17] Contrary to the submissions of the trial Crown, the fact that it may be appropriate for the police to ask such questions as part of an investigation does not mean that portions of an accused’s statement in which such questions are asked are properly admissible. This court made that clear in F.(C.). In that case, even though no objection was raised at trial, this court held that portions of an accused’s statement to the police asking him to explain why the complainant made the allegations and why some people believed the complainant should not have been placed before the jury.

[18] Nonetheless, I am satisfied that the trial judge’s clear instructions explaining why this form of questioning is improper and emphasizing that the onus is on the Crown to prove guilt beyond a reasonable doubt, would have cured any prejudice that might otherwise have arisen. In the face of this instruction given before the videotaped statement was played, I see no real possibility that the jury would have been misled into focusing on any perceived failure of the appellant to provide an adequate explanation for the complainant's allegations rather than on the issue of whether the Crown had satisfied its obligation to prove guilt beyond a reasonable doubt.

[19] Further, although the impugned questions may have led the appellant to volunteer that there were no problems in his relationship with the complainant, the appellant's relationship with the complainant was a subject that could properly be explored both in the appellant's statement to the police and in the evidence at trial. Evidence suggesting the absence of any reason to make a false allegation “is a factor which juries, using their common sense, will and should consider in assessing a witness’ credibility”: R. v. Batte (2000), 49 O.R. (3d) 321 (Ont. C.A.) at para. 120; R. v. Mearow, [2006] CanLII 33765 (Ont. C.A. ) at para. 18.

b) Did the trial judge err in his instructions to the jury concerning absence of evidence of motive to fabricate?

Background

[20] In my view, there are significant problems with the way the motive to fabricate issue was dealt with during the balance of the trial. In order to address this issue, it will be necessary that I review the relevant events at trial in some detail.

i) The Crown’s opening address

[21] In his opening statement to the jury, Crown counsel made it clear that he would be relying on the appellant’s comment to the police that that there was no trouble between him and his daughter to demonstrate that the complainant had no apparent motive to fabricate:

There are three important things that this man has to say to the police. Okay? The first one –I want this to ring in your ears all through the trial. I want you to think about this when you make your final deliberations.

He says to the police officer, “There's no trouble between me and my daughter. I was not aware of any concerns whatsoever.”

It was a bombshell to him when he was arrested on or about May 20, 2005... No problems. So you're gonna think about that in terms of her alleged motivation. [Emphasis added.]

ii) The evidence relating to motive to fabricate

[22] Several witnesses gave evidence about the complainant’s relationship with the appellant and about the possibility that she had a motive to fabricate.

[23] The complainant testified in-chief that she had a good relationship with her father until the sexual abuse began. However, the complainant also noted that she was not allowed to go out at night and that the appellant asked her to leave the room if company came over. In addition, she described the appellant as controlling.

[24] In cross-examination, the complainant acknowledged that she had told her parents she wanted to have a child; that her parents did not want her going out late at night; and that she had difficulty accepting the return of two of their foster dogs. The complainant denied suggestions that she wanted to be able to have the same things her working brother had, or that her allegations were based on things she had seen while watching pornographic movies.

[25] Although the appellant alluded in his evidence in-chief to issues relating to the complainant wanting to have a child, wanting to go out at night and difficulties over returning the foster dogs, he acknowledged in cross-examination that there was no animosity between him and his daughter.

[26] During cross-examination of the appellant's son, J.L., Crown counsel reminded J.L. of comments J.L. made to the police, suggesting that his sister made her allegations because she had to pay a total of $520 per month to her parents for room, board and cable TV and because she did not have the money to do what she wanted. The following exchanges took place:

Q: In fact, you were so desperate to help dad that you offered an explanation as to why this complaint had been made. Do you remember that? ... Let me refresh your memory.

And I’ll quote on page three... “I think it was out of retaliation, stuff like that. She’s paying for cable. She pays $400 rent, which I do as well. She's jealous that I'm working bringing money in and she is not.”

And then you’re asked: “Does she have freedom at the house?” “She can come and go where she pleases. I think she feels that she didn't have the money to do what she wanted.”

So, those are the questions and answers supplied by you as to why this complaint came. I suggest to you that – that's a pretty desperate thing you did on behalf of your father to make such an explanation. Do you agree?

A: Yes

...

Q: Now, let's get back to that desperate explanation, you agreed it's desperate, that you gave to the police in an effort to assist your father, let's just analyze that a little bit. Your opinion at the time, and I –I imagine that it still is, is that she was upset about money issues, right?

A: Yes, she was.

Q: All right. Well, let's analyze that for a second. Your position then and it still is, is that she didn't have enough money to do what she wanted to, right?

A: Yes.

Q: And she was jealous of you, right?

A: Yes.

Q: Okay. Now, can we agree that N. was paying $400 a month room and board?

A: She was.

A: And in addition to that was she paying for cable?

A: Yes. ... 120 odd dollars.

Q: And was she shouldering the whole brunt of that or did she split the 120 with you and your folks?

A: Well she was complaining about that because she was paying the cable and I wasn't paying anything. But meanwhile, I was paying into –into food.

...

Q: Will you agree with me that in the normal course of events, knowing human nature as you do, J.L., that if a daughter says to the police: "My father has been having sex with me for seven years almost every day", that that girl is not likely gonna stay under that roof much longer?

A: Yes.

Q: Thank you. So we'll just play around with your theory a little bit. So now N. has to leave and for $520 a month she's getting room and board and cable. Can you get room and board and cable elsewhere for $520 in your opinion?

A: In my opinion... no.

Q: No. It's not gonna happen. So funny theory you had there. Now, she's worse off financially by making the complaint.

iii) The closing addresses of counsel

[27] Both trial counsel dealt with the issues of the appellant's obligation to provide an explanation for the complainant's allegations, and the complainant's motive to fabricate, in their closing addresses.

[28] Defence counsel essentially re-iterated that, even though the Crown might argue that there was no benefit to the complainant to fabricate the complaint, the appellant had no obligation to explain why she would do so. He pointed out that there was no evidence of where the complainant was living and suggested that any financial considerations the Crown might rely on were irrelevant. In addition, he suggested that making an allegation could be a way of getting out of the house to pursue a relationship. Finally, he reminded the jury that the police officer’s question asking the appellant why the complainant would be making her allegations could not be asked at trial and repeated the admonition that the appellant had no obligation to explain why the complainant would fabricate her allegations.

[29] The Crown began his comments in this area by reviewing a portion of J.L.’s evidence:

Let's deal with J. for a second, brother J. As you know by now and it's been reiterated more than once, the accused can't be asked to explain why someone has said something bad about him. But that doesn't apply to other witnesses. So I felt free to ask J., "Tell us about that explanation you gave to the police, J., about how she was jealous of your income and how she sort of wanted a little more balance between hers and yours." And within about 30 seconds he had to admit that was full of it, full of it. Why? Because when she left the house she was worse off financially than before she made the complaint. [Emphasis added.]

[30] Later, the Crown turned to the general issue of lack of motive to fabricate:

Now, the last thing I want to talk about is lack of motive. If all you heard from –from –on this point was my friend, you'd conclude that it was completely irrelevant. And I suppose he's basing that observation or submission on the fact, and I agree, you can't ask the accused about it. "Hey, Mr. L., tell us why she'd make this complaint if it wasn't true?" We are past that. But I can tell you right now and Justice Riopelle will reinforce in your mind that now is the time to think about that. Now, it is a critical factor in your deliberations, a lack of motive. Because you know what, thank goodness, the law is not an ass, at least not in this respect. And you're not going to be asked, like 12 ostriches, to go to Gillies Lake and stick your head in the sand and just ignore the fact this woman had no motive to lie.

You don't have to ignore that. It's very important. And what's unusual in this case is, not only is there no motive to lie, I'm going to spend a little time on that right now, everybody agrees she had a great relationship with her dad. You may have asked yourself, "Why is that Crown attorney going on and on about that? Why is he reinforcing that in our minds?" Because it's critical now. You can and should use that in your deliberations. No reason why.

But we're gonna go past that. She had reasons not to lie. Put yourself in her shoes. Twenty-seven years old with cognitive difficulties; barely surviving on the money she makes with the support of her family. She's lost it all. She's lost it all.

Now, you have to compare that to my friend's earlier suggestion, which is not based on the evidence, that she wanted to get out of the house. Well, let's think about that for a second. Did she have to cook up this story to get out of the house? The accused himself said she was free to go. And she did go and nobody held her back.

Why did she have to bring this on herself? Why did she have to forever, and this is a horrible, horrible thing to say but it's true and we know it, why did she rupture this family forever? It's not a family anymore. It can't be a family anymore. And that's despite all the mutual love and all the good times they had, and the fact he was a good father except for incest. She threw it all away. That's lack of motive. That's more than lack of motive. [Emphasis added.]

iv) The trial judge’s instructions to the jury

[31] The trial judge gave the jury the following instructions on the motive to fabricate issue:

Through cross-examination of this witness and other evidence, they tried to –it will be up to you to decide. This is one of those dangerous grounds that judges go on, but I am not sure, it is up to you to decide, was there ever any reason for this disclosure to have been divulged the way it was. There were some allusions to maybe there was jealousy between her and her brother with respect to him having money to buy things. Generally it seemed to have been, according to the evidence, a happy relationship between father and daughter, mother and daughter, brother and sister. Just a normal average home is what it seemed like. You have to consider all those things as well.

The Crown made much of the fact that she may be even financially worse off now that she has made these disclosures. You can take that into account as well I suppose, if you wish. There has been a definite rupture in the family. Things will never be the same between this mother and daughter, between this father and daughter, as a result of those disclosures.

Now, the father's version is that this never happened. This is all somewhere up in la-la land. She made this up. He cannot prove, as [defence counsel] has said to you, a negative. You just cannot prove a negative. That is why the responsibility is on the prosecutor to prove guilt beyond a reasonable doubt. You can prove a positive and that is what he has attempted to do during this trial. Even though the question can never be asked of the father, "Why would she do this? Why would she make up these allegations?" They did, during the trial, attempt to answer those questions. I have already alluded to what some of those answers might be. That is for you to decide. That is for you to review. [Emphasis added.]

Discussion

[32] The significant problems relating to the motive to fabricate issue began with the Crown’s cross-examination of the appellant’s son, J.L. In asking J.L. about his “desperate” explanation to the police, the Crown elicited what appears to be an answer to a question similar to the question the police asked the appellant, why would the complainant be making these allegations. As I have said, a question to any witness seeking to elicit that witness’s opinion of another witness’s credibility is improper and this cross-examination was improper for that reason.

[33] That said, if this was the only problem that had occurred, it would not present a major issue. Although improper, the Crown’s questions were close to the line. In his statement to the police, J.L. not only expressed his opinion, he also recounted facts capable of supporting a conclusion that the complainant was jealous of J.L. and unhappy about their respective financial obligations in their parents’ household. Had the questions been confined to eliciting those facts and any information J.L. had about the complainant’s new living arrangements, the questions would have been entirely proper.[2]

[34] However, the Crown went further and used this line of questioning as an opportunity to editorialize about the complainant's financial state when she left home; he then referred to his editorial comment as if it was evidence in his closing address; and he used his editorial comment in implicit support of his suggestion that the complainant had reasons not to lie.

[35] This approach was prejudicial to the appellant because it allowed the Crown to reinforce and emphasize its position that there was no evidence of a motive to lie by leading inadmissible opinion about a possible motive to lie, and by discrediting the opinion with speculative editorial comment.

[36] I am referring here to Crown counsel’s response after posing the question to J. L., “Can you get room and board and cable elsewhere for $520 in your opinion?”. Following JL's answer, “In my opinion … no”, Crown counsel said, “No, she's worse off financially by making the complaint (emphasis added.)”

[37] Since there was no indication that JL was aware of the details of the complainant's living arrangements after she left home and since J.L. couched his answer as an opinion, J.L.'s response to the Crown counsel’s question did not provide an adequate evidentiary basis for the Crown's conclusion that the complainant was worse off financially after she made the complaint. Moreover, Crown counsel’s statement of a conclusion in response to J.L.’s answer was an improper editorial comment.

[38] In his closing address, Crown counsel referred to J.L.'s explanation to the police concerning why the complainant would fabricate and stated that J.L. had to disavow his explanation because the complainant “was worse off financially than before she made the complaint.” As there was no other evidence at trial concerning the complainant's financial status after she left home, Crown counsel’s statement lacked an evidentiary foundation.

[39] In the circumstances, rather than telling the jury that they could take account of the fact that the complainant may be worse off financially than she was before she made the complaint, the trial judge should have instructed them that there was no evidence at trial concerning the complainant’s current living arrangements and that they should not speculate about that issue. The trial judge should also have corrected the Crown’s erroneous statement that he was entitled to cross-examine J.L. about his explanation to the police concerning why the complainant might be making her allegation.

[40] Further, considering the Crown’s comments in his closing address about the absence of motive to fabricate as a whole, in my opinion, it was incumbent on the trial judge to caution the jury against attributing undue weight to the absence of evidence of motive to fabricate.

[41] I will repeat certain excerpts of the Crown’s closing for ease of reference:

Now, it is a critical factor in your deliberations, a lack of motive.

…

You don't have to ignore that. It's very important. And what's unusual in this case is, not only is there no motive to lie ... everybody agrees she had a great relationship with her dad.

…

But we're gonna go past that. She had reasons not to lie. Put yourself in her shoes. Twenty-seven years old with cognitive difficulties; barely surviving on the money she makes with the support of her family. She's lost it all. She's lost it all.

…

Why did she have to bring this on herself? Why did she have to forever, and this is a horrible, horrible thing to say but it's true and we know it, why did she rupture this family forever? It's not a family anymore. It can't be a family anymore. And that's despite all the mutual love and all the good times they had, and the fact he was a good father except for incest. She threw it all away. That's lack of motive. That's more than lack of motive. [Emphasis added.]

[42] The difficulty with these comments is twofold. First, they appear to suggest that the Crown proved lack of motive to fabricate when the evidence was not capable of supporting such a finding. Second, by asking highly emotive rhetorical questions concerning why the complainant would create various negative consequences for herself, the Crown created a risk that the jury would jump to a conclusion that the complainant must be telling the truth if there was no demonstrated motive to lie.

[43] In his comments, the Crown made outright assertions that the complainant had no motive to lie and also referred to the complainant's reasons not to lie. Particularly when combined with the prior suggestion that the complaint was worse off financially after making her allegations, these assertions suggested that the fact of the complainant’s good relationship with her father and the negative consequences that she experienced proved that the complainant had no motive to fabricate.

[44] When dealing with the issue of a complainant’s motive to fabricate, it is important to recognize that the absence of evidence of motive to fabricate is not the same as absence of motive to fabricate. As Rowles J.A. stated in R. v. B. (R.W.) (1993), 24 B.C.A.C. 1(B.C.C.A.), at para. 28: “it does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth.” Put another way, the fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate. [3]

[45] The complainant’s good relationship with her father and the negative consequences she may have experienced as a result of making her allegations are not capable of proving that she had no motive to fabricate. As this court held in R. v. White (1996), 29 O.R. (3d) 577, at p. 608, (Ont. C.A.); affirmed [1998] 2 S.C.R. 72, in the context of an accused’s motive to commit a crime, evidence of a good relationship does “no more than reinforce the absence of evidence of proved motive.” [4] The same reasoning applies to evidence of negative consequences that may ensue from making serious allegations. Although they highlight the significance of absence of evidence of motive, they do not prove the absence of a hidden motive.

[46] In my view, the Crown’s suggestions that the complainant’s great relationship with her father and the negative consequences she may have suffered by making her allegations amounted to no motive to fabricate required a corrective instruction from the trial judge to put the issue of absence of evidence of motive to fabricate into its proper context.

[47] Further, in my opinion, the Crown’s emotive rhetorical questions asking why the complainant would bring various negative consequences on herself also required a corrective instruction. The problem with these questions is that they called on the jury in a compelling way to focus on what had not been proven (a credible motive to lie) rather than on what was proven and therefore created a risk that the jury would reason that failure to demonstrate a motive to lie proved that the complainant was telling the truth.

[48] In Batte at para. 121, this court identified the pitfalls that should be avoided in a trial judge’s instructions to the jury on motive to fabricate. The same pitfalls must be avoided in Crown counsel’s closing address:

What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or, finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.

[49] I recognize that in Batte, this court concluded that the trial judge did not err when, in setting out the Crown’s position at trial, he invited the jury to consider why the complainant would subject herself to the rigours of the trial process if her allegations were not true. This court stated that at least some of the potential problems arising from such an instruction are overcome by the trial judge’s general instructions on credibility. Further, the trial judge’s instructions in their entirety would not have “led the jury astray from applying its common sense to the question of why the complainants would make the allegations they did, and the significance of the answer to that question, to their overall assessment of the credibility of the complainants”: Batte at para. 126.

[50] However, in this case, by inviting the jury to focus on potential long-term negative life consequences to the complainant from making her allegations and characterizing them as reasons not to lie, in my opinion, Crown counsel in this case went far beyond the trial judge’s isolated reference in Batte and virtually invited the jury to reason that in the absence of a demonstrated motive to fabricate the complainant must be telling the truth.

[51] Finlayson J.A. highlighted this risk in S.(W.), supra, a judge alone trial, when he said, at p. 519:

The Crown on appeal conceded that it was improper for the Crown at trial to demand an explanation from the appellant as to why the complainant would make up what counsel referred to as "this horrendous lie". There is no onus on an accused person to explain away the complaint against him or her. The trial judge should have resolutely rejected this approach. Instead he implicitly adopted it. He was favourably impressed with the complainant and the manner in which he testified and, consequently, he believed her. He then subtly shifted the onus to the appellant, as accused, to give some explanation as to why the complainant would lie. Why would she bring all this grief upon herself and risk jeopardizing the close relationship between the two families if it were not true? [Emphasis added.]

[52] Particularly in the context of a developmentally challenged complainant, by emphasizing what the complainant may have lost by making the allegations and by suggesting that it had proven absence of a motive to lie, the Crown created a risk that the jury would jump from those factors to a conclusion that the complainant was telling the truth. It was, therefore, incumbent on the trial judge to neutralize that risk by providing corrective instructions. Rather than addressing the problems created by the Crown’s closing, the trial judge’s instructions merely pointed out that it was for the jury to determine whether a motive to fabricate had been established. The trial judge’s instructions do not address how the jury should treat a failure to demonstrate a motive to fabricate.

[53] At a minimum, the corrective instructions should have addressed the following matters:

· Because a persons’ motives can sometimes be hidden, there is a difference between absence of apparent motive and proven absence of motive;

· Although the defence had raised some possible motives for the complainant to fabricate her evidence, depending on their view of the evidence, it was open to the jury to find an absence of any apparent motive on the part of the complainant to fabricate;

· Although absence of apparent motive to fabricate is a proper factor to consider in assessing the credibility of the complainant, it is but one of many factors to be considered; and

· Whatever their view of the evidence relating to the complainant’s motive to fabricate, it was essential that the jury bear in mind that the accused has no obligation to prove a motive to fabricate and that the onus remains on the Crown throughout to prove guilt beyond a reasonable doubt.

[54] The effect of the trial judge’s failure to provide corrective instructions along these lines and along the lines I have referred to earlier in paras. 39 and 40 respecting the Crown’s errors on this issue, was to permit the Crown to bolster the complainant’s credibility unfairly. When combined with the impact of the Crown’s conduct in unfairly undermining the credibility of the defence witnesses, which I will discuss in the next section, the overall impact is sufficiently serious to require a new trial.

2. Did the Crown engage in misconduct that created a miscarriage of justice?

[55] The classic statement of the role of the Crown is that set out by Rand J. in Boucher v. The Queen, [1955] S.C.R. 16, at 23-24:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and justness of judicial proceedings.

[56] The appellant submits that the conduct of Crown counsel in this case was so unfair and prejudicial that it gives rise to a miscarriage of justice. In particular, the appellant submits that the Crown's opening and closing addresses were improper and inflammatory. Further, he contends that that the Crown: improperly expressed his opinion concerning the appellant's guilt; inappropriately suggested to the appellant in cross- examination that the jury disbelieved him; improperly asked defence witnesses to comment on the veracity of other witnesses; was rude, demeaning, and abusive throughout his cross-examinations; led the complainant through crucial aspects of her evidence; and mischaracterized earlier evidence in forming his questions.

[57] I do not accept all of the appellant’s submissions concerning the alleged transgressions. However, I do agree that Crown counsel at trial engaged in some conduct that crossed the line of propriety. In my opinion, the Crown’s general approach involved overstating the Crown’s position, demeaning defence witnesses and at least impliedly injecting his personal opinion into the trial. Although perhaps not as egregious as Crown misconduct in some other cases, the overall impact of this approach was, on occasion, to unfairly cast defence witnesses in a bad light.

[58] I will give some examples. Before doing so I will briefly outline one of the issues at trial to which some of the misconduct relates.

[59] One important aspect of the Crown’s case was the complainant’s testimony that the appellant’s wife caught the appellant having intercourse with the complainant when the complainant was 19. According to the complainant, her mother did not get particularly upset about this incident but rather simply told them not to let it happen again.

[60] The appellant was asked about the incident when he gave his statement to the police. Although he denied any impropriety, he described an incident in which the complainant “climbed in” to bed with him and asked about a kiss. The appellant said he gave the complainant a little kiss and that, at that point, his wife walked in. The appellant acknowledged that his wife told them she did not want to see them in bed together again.

[61] At trial, the Crown cross-examined both the appellant and his wife extensively about this incident and alleged inconsistencies and improbabilities in their evidence became one of the focal points of the Crown’s closing address.

[62] I will turn now to some examples of the Crown’s misconduct.

a) The Crown’s opening address

[63] During his opening address, the Crown said the following about the incident:

Now, I told you the accused gave a statement to the police. I'm going to play that video tape for you... and there are three important things that this man had to say to the police. Okay?

…

And the third thing that he admits to is something that N. is going to tell you about and this is the blockbuster. This is a piece of evidence that I suggest to you at the end of the day is going to leave you with absolutely no doubt that this happened.

When N. was about 19 or 20 –so we're talking about the middle of the seven year period, maybe a little earlier than that-the sex was going on all through the day. Mom was out working 8:30 to 4:30 cleaning for the most part for two ladies. Mom never came home for lunch. One day she did. (Unintelligible) she saw her husband and her daughter having intercourse in bed. You have to ask yourself, what would the typical woman do? The women that I know would react in a very, very uniform way.

…

But you're going to hear… mom didn't get all excited at all. She said, "L. and N. put your clothes on. We're gonna have a chat. I want this never to happen again. Do I have your promise? Do you promise". That was it. The very next day, surprise, surprise, more incest.

You have to ask yourself what would a young gal in that situation, with her particular challenges, do when her own mom reacting that way, did nothing. Yeah. And her mom, I'll ask you to conclude, knew the sexual abuse was going on at least for the next three years. It's shocking isn't it, if you conclude that it's true.

[64] As can be seen from this extract, the Crown portrayed the appellant as having admitted the conduct in issue. Although it was undoubtedly open to the Crown to ask the jury to find the appellant admitted that the incident occurred, the bald assertion of an admission overstated the Crown's position. Moreover, characterizing the appellant's wife's alleged reaction as shocking was improper editorializing.

b) The Crown’s cross-examination of the appellant

[65] The Crown was often subtly disrespectful and demeaning when cross-examining the appellant. A prime example of such conduct was his habit of asking the appellant if he knew the meaning of the words used in questions posed in cross-examination:

Q. You know what analogy means.

...

Q. Do you know what a six week convalescence is?

...

Q. Do you know what that means, destitute?

...

Q. And so she goes into your room, she is the kisser, you are the kissee. Do you know what that means?

...

Q. You know what day surgery is?

[66] On other occasions the Crown was sarcastic:

Q. So we're gonna get back to the time that you had to spend with your precious daughter, your one daughter.

[67] A more flagrant example of improper conduct was Crown counsel’s tendency to refer to the jury in his questions and, on some occasions, to suggest that either he or the jury were having difficulty with the appellant’s answers:

Q. Now, let's talk about the locks on the door ’cause I have to say that –that I found your response rather unusual to the question put by the officer. And I think the jury felt the same way and I'll tell you why...

...

Q. All right. So let's –let's be frank here. If you're not in the picture, your wife is destitute.... Do you know what that means, destitute?

A. It means she's got no place to go.

…

Q. That's it. No food, no lodging, no nothing. She relies on you 100 percent. And I don't mean to sound crass but in a way you are her meal ticket, right?

A. No.

Q. Well, gee for the jury... might have some... difficulty with that.

...

Q. Now, we're going to talk about that fourth incident on the video tape that I claim is important. I could be all wet on that but I think the jury will agree this is pretty important. This is the incident where your wife walks in on you and N.

...

Q. Now, when I heard your testimony yesterday and I think the jury will agree that that was an important event in your life?

A. No.

Q. No? Oh, okay. Well, let's examine that for a second. See how it stands up to a little scrutiny. You made this jury or gave them the impression that your wife was suspicious of what was going on. Are you going to deny that?

...

Q. That's very interesting. We've heard it before and we’re gonna go over it again but you know my question was: "Did you feel your wife was suspicious about what was going on?"

A. No.

Q. Well, the jury’s...

A. Because there was …

Q. … having some difficulty...

A. … nothing going on.

Q. … with that, I think. We’re gonna have some difficulty with that because, if your wife wasn't suspicious, she'd walk right on by and she'd do the laundry but instead she turns to you and says: "What's going on here?" That's the truth isn't it?

...

Q. Now, the jury, having heard your evidence yesterday, I'm sure has your most recent story fresh in their mind.

...

Q. All right. And that's basically what you told the jury but you left out an important part. All right?

...

Q. Asked for a kiss? Difference without a distinction or vice versa. Asked about a kiss? Now isn't that totally different from what you told these good people just yesterday?

...

Q. Let's just deal with that for a second here. This was, whether you concede the point or not, I think the jury will conclude that this was an important event in your life. That your wife was suspicious that you were engaging in sexual activity with your own flesh and blood.

...

Q. All right. So your story is mixed up about why she came to the room: who kissed who. Let's talk about the hug for a second. You told these good jurors that when your wife walked in, she saw you hugging her, is that correct?

...

Q. Did you catch that difference too? Your wife – you said on the videotape that your wife said to you and N.: "I don't want you in that bed together anymore." Did you not hear that?

A. No, I didn't hear it.

Q. All right. Well, maybe the jury will sort that out for us.

...

Q. No. It happens... I think we're talking at cross-purposes here. Now, so we painted a picture of you being a swell father but you said something that I’m sure struck the jury yesterday and is at complete odds with the portrayal you’d have us believe. You told this jury that: "I was angry when I heard about these allegations and if she had been present, I would've been yelling and screaming at her."

...

Q. You're avoiding the question. You're the one who threw it out. I didn't invent this. You and [defence counsel] broached it. I'm going to deal with what you told this jury yesterday and you can't deny it. You said that if she had been present and made these allegations in your presence, you'd be yelling and screaming in her face. Kind, loving and understanding father.

...

Q. Okay. And was there anything that was eating N. that was obvious to you outside of your relationship with her?

A. Little bit, yes.

Q. All right. It took little while to think about that one. I guess it wasn't so obvious. Well, what were those problems?

A. She would run and sort of say she'd be here and not there, those little things.

Q. That makes no sense to me so I'm gonna move on, okay?

A. Yeah.

Q. Let the jury make of it what they will.

...

Q. All right. So let's see if the jury can understand this. Your position now is, you were aware that your daughter has gone to the police to talk about sexual abuse at your hands and then your daughter says: "Dad, let's go to counselling." And you told this jury you had no idea what that was about, the counselling.

...

Q. All right. We've done a bit of a 180 degree turn here. I think the jury will remember, just 15 minutes ago under oath, I asked you what you understood the option of counselling was and we drew a big fat zero, a big blank. "Your guess is as good as mine," you said to the Crown attorney.

...

Q. Well, how else can you cut it? How else can you cut this one? You tell the jury 15 minutes ago, "I've no idea, Mr. Crown attorney. I've no idea why we're going to counselling." And now you admit to them there was no other possible reason but the allegation of incest. You lied to these people.

A. That was just drawing a general conclusion, yes, that – what that counselling would be about but it wasn't for my participation in the counselling.

Q. A general conclusion. So what do we glean from that, that the main topic would be having sex with your daughter almost every day for seven years, in addition to that, I don't know, an eating disorder? You lied to these people didn't you?

A No, I did not.

Q. We'll let them make that decision.

The court: Mr. [Crown attorney], that last comment was not necessary.

c) The cross-examination of the appellant’s son.

[68] I have already referred to a serious example of Crown misconduct in relation to the cross-examination of the appellant's son under the first ground of appeal.

d) The cross-examination of the appellant's wife

[69] The most serious example of Crown misconduct during cross-examination of the appellant's wife is an exchange in which the Crown expressed his opinion about what had occurred:

Q. Ma'am, let's cut to the chase here. I'm going to tell you what I believe the truth is here. We're gonna see if we can agree, okay? The truth of the matter is that you did catch her daughter [sic] in bed with your daughter having full-blown sexual intercourse approximately 1999 when your daughter was 19.

[70] Although the Crown went on to frame his questions in terms of which version of events made more sense, he had clearly expressed his opinion concerning the truth.

e) The Crown's closing address

[71] In addition to the improper conduct in his closing address that I have referred to under the first ground of appeal, Crown counsel used inflammatory language in referring to the appellant as a liar, improperly injected himself into the closing, demeaned the position of the defence and, at least implicitly, expressed his opinion that neither the appellant or his wife were worthy of belief and that the appellant was guilty:

You know what the hallmark of a liar is? The hallmark of a liar is to admit everything except the one little bit of information that will get you in trouble. So he's trying to be generous with the truth. That's the hallmark of a liar, trying to suck you in and say: "You know? I'll meet you halfway on this but I'm not a bad guy?”

The truth never changes. But he tried to change the truth didn't he...

They talked about what went on in the bedroom and how it was going be prevented in the future. That's the truth. But now he has a different story for you. He says: "We told her. He told her you're not coming back in here anymore."

Really? Did he have any such objections in the minutes before his wife caught them in there? I think not. The truth never changes.

Now, it seemed to me that those blatant and several contradictions would be enough for any jury to say to themselves, individually or collectively, "We can't believe that fellow. He's not worthy of belief."

But it gets so much better for the prosecution. It is almost of the Biblical story of manna from Heaven. You don't expect it or even deserve it but it falls into your lap.

After those contradictions were revealed, the accused proceeded to shoot himself in the foot twice didn't he? He lied to your faces twice. That's what I suggest happened here.

Now, what were those lies? I'm sure they're still ringing in your ears. And do you remember how the accused squirmed on the hook after I exposed it? Really, how foolish he looked trying to rehabilitate himself in your eyes. It's not going to happen is it? You know a liar when you see one.

So what's the big, fat lie number one? The first one is that: "She wanted me to go to counselling".

...

So here's the $64,000 question. "Mr. L., why do you think she wanted you to go to counselling with her?" Do you remember his response? It's something of a refrain he has, right? He used it twice to the police officer. He used it twice and cross-examination. "Mr. Crown attorney, your guess is as good as mine." Your guess is as good as mine. As if to say: "I have no bloody idea." But you know that was a blatant lie to your face. It wasn't the police officer. It wasn't a witness outside the court. It was to your faces.

Because on the heels of that, I asked him some more questions... I said: "Well stop the presses here. You just said you had no idea... on the other hand you knew... So how do you square the circle?" And his jaw almost hit the ground didn't it? It's almost a small child example where you catch them in an obvious lie and they don't know what to do. They run in little circles and now they're caught in a corner and there's nowhere to go. So what did he do? He basically tried to blame me for confusing him.

But there's no confusion on your part is there? That’s crystal clear. He lied to you. And the one big fat lie wasn't enough because he was in a downward spiral now. That's what happens when you start to lie... because one lie follows on another in desperation. The next lie had to do with how he would've reacted to his daughter if she’d had the gall to confront him with that in his presence instead of scurrying off tell the police... "I would have screamed and yelled in her face."

I suppose an innocent man might do that. But what did he do? He said to her, knowing full well what this was about, basically: "Honey I'll go with you to counselling."

Big fat lie number two.

...

Now, I'm having some trouble understanding my friend's position because it's somewhat inconsistent. Not that that's a bad thing. The defence can advance any number of possible defences... the first one... emerged yesterday in questioning of Ms. L.... He put to her: "You've watched a couple of porn flicks late at night, haven't you?" "Yeah, I have." "And I suggest to you ma'am, that you're confused." And in essence what he said to her was: "In your mind you and your dad were porn stars in those films." I don't know about you but I almost fell off my chair with that one..

...

Now, let's talk a little bit about mom. With great respect, she doesn't deserve much comment does she?[Emphasis added.]

[72] I acknowledge that there were few objections during the course of the trial to the Crown’s conduct. However, although that is a factor to be considered, it is not determinative: R. v. Jacquard, [1997] 1 S.C.R. 314. The effect of some of Crown counsel’s transgressions, taken individually, may not have been apparent at the time. In my opinion, it is the cumulative effect of the improprieties under this ground of appeal and the first ground of appeal that undermines the fairness of the trial and requires this court to order a new trial.

Disposition

[73] Based on the foregoing reasons, I would allow the appeal, set aside the appellant’s conviction and order a new trial.

RELEASED: May 20, 2009 “MR”

“Janet Simmons J.A.”

“I agree M. Rosenberg J.A.”

“I agree K. Feldman J.A.”

[1] The appellant raised an additional issue in his factum concerning the admission of his statement to the police. Counsel for the appellant indicated during oral argument that he was not pressing that issue.

[2] R. v T., [1998] 2 NZLR 257, provides a useful discussion of this issue. In that case, the New Zealand Court of Appeal noted that the question “spoken or unspoken, why the complainant would lie hovers over many [sexual assault] trials.” Although the court ruled that the question can properly be asked, it also set out some useful guidelines concerning the proper limits on questions and submissions relating to this issue at pp. 265-266:

We accept the proposition "Why would the complainant lie?" should not be presented in a way which would deflect or distract the jury from the central issue, whether the Crown had proved the charge and each element of the charge beyond reasonable doubt. Nor should any suggestion be allowed that there was an onus on the accused to advance a credible answer. Generally, the trial Judge would be required to intervene firmly if these principles were infringed.

We also accept the distinction between questions relating to facts on the one hand and opinion on the other, and that absence of evidence of motive should not be equated to absence of motive. There is a danger of descending into mere semantics, but in trials the situation where slight rephrasing is sufficient to overcome a proper objection is commonplace. The question: "Why should she lie?" must be interpreted as and confined to the eliciting of facts known to the accused, not speculation as to possible motives. Likewise, any submissions by the prosecutor have to be couched in a way that observes the distinction. [Emphasis added.]

[3] Similarly, cases dealing with an accused’s motive to commit a crime emphasize that “there is a significant difference between absence of proved motive and proved absence of motive”: R. v. White (1996), 29 O.R. (3d) 577, at p. 608, affirmed [1998] 2 S.C.R. 72.. See also Lewis v. The Queen, [1979] 2 S.C.R. 821

[4] In the same vein as White, see also R. v. O'Grady (G. L.) (1999), 120 B.C.A.C. 129, leave to appeal to S.C.C. refused, [1991] S.C.C.A. No. 401; and R. v. Ilina (2003), 172 C.C.C. (3d) 240 ( Man. C.A.), leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 134.