R. v. A.G., (2015) 330 O.A.C. 286 (CA)

• Judge: Sharpe, Hourigan and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 13, 2015
• Jurisdiction: Ontario
• Citations: (2015), 330 O.A.C. 286 (CA);2015 ONCA 159

R. v. A.G. (2015), 330 O.A.C. 286 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MR.018

Her Majesty the Queen (respondent) v. A.G. (appellant)

(C56091; 2015 ONCA 159)

Indexed As: R. v. A.G.

Ontario Court of Appeal

Sharpe, Hourigan and Pardu, JJ.A.

March 13, 2015.

Summary:

The accused was convicted by a jury of sexual assault and extortion. The sexual assault conviction was stayed (Kienapple) and the accused was sentenced to 27 months' imprisonment. The accused appealed the conviction on the grounds that: "(i) The Crown's cross-examination of the defence witnesses was improper and resulted in a miscarriage of justice; (ii) The trial judge erred in refusing to declare a mistrial as a consequence of an interruption in the testimony of a defence witness; and (iii) The trial judge erred in not allowing the jury to ask a DNA expert witness a question.". The accused also sought leave to appeal sentence.

The Ontario Court of Appeal dismissed the conviction appeal. Leave to appeal sentence was granted, but the appeal was dismissed.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4343

Procedure - Jury - Evidence - Questioning of accused or witness by juror - The trial judge refused to permit the jury to ask a question of the Crown's DNA expert witness - The Ontario Court of Appeal held that the trial judge did not err - The court stated that "I accept ... that permitting a jury to ask questions of a witness is not prohibited. However, the decision to allow this type of questioning is within the discretion of the trial judge and safeguards must be in place to ensure that only admissible evidence is elicited and that the parties are not prejudiced ... The dangers of permitting a jury to ask questions of a witness are obvious. In addition to potentially eliciting inadmissible evidence, such questioning may run contrary to trial counsel's strategy and an objection by counsel to a question may trigger conflict with the jury or create the impression that important evidence is being hidden. Moreover, there is a risk that a jury empowered to ask questions will move from being judges of the facts to being advocates." - Although the trial judge erred in stating that jury questions were prohibited, this was an appropriate case to refuse to allow the jury question - The proposed question went beyond clarification, opened up a new issue, and the proposed line of inquiry was irrelevant to the issues at trial - See paragraphs 57 to 68.

Criminal Law - Topic 4633

Procedure - Mistrials - Grounds - While the accused's mother was being cross-examined, a police officer interrupted the proceedings to advise the court, in the presence of the jury, that the accused's sister had on five occasions nodded to the mother - Rather than grant a mistrial requested by the accused, the trial judge chose to instruct the jury that he did not find that the sister was making an intended communication to the mother - The trial judge told the jury that some people are more animated than others and she may have simply been nodding her head without attempting to communicate anything to the witness - The Ontario Court of Appeal held that the trial judge did not err in exercising his discretion to deny a mistrial - The court stated that "a mistrial is a remedy of last resort and should be ordered only where necessary to prevent a miscarriage of justice. ... Because the determination of whether a mistrial should be granted is a matter within the discretion of the trial judge, an appellate court will only interfere with that decision if it is clearly wrong or based on an erroneous interpretation. ... a trial judge is best positioned to assess whether a mistrial is warranted in the circumstances and appellate courts owe trial courts significant deference on that determination. ... I agree with the trial judge's ruling on the mistrial application that his instruction was clear, concise, and prompt. The trial judge specifically cautioned that individuals may nod their heads for a variety of reasons, and that the jury should not draw any conclusions from the court police officer's statements." - See paragraphs 44 to 56.

Criminal Law - Topic 4647

Procedure - Mistrials - Review or appeal - [See Criminal Law - Topic 4633 ].

Criminal Law - Topic 4961

Appeals - Indictable offences - New trials - Grounds - Abusive or improper cross-examination by Crown - The accused bar manager allegedly extorted sexual intercourse and oral sex from a female employee in exchange for not calling the police when she stole some alcohol from the bar - The accused's version was that the employee made unwanted sexual advances to him in an attempt to keep her job - The accused was convicted of extortion - The sexual assault conviction was conditionally stayed - The accused appealed his conviction on the ground of improper cross-examination of defence witnesses by the Crown, resulting in an unfair trial and a miscarriage of justice - The Ontario Court of Appeal dismissed the appeal - There were instances of inappropriate conduct by the Crown in cross-examining defence witnesses: (1) improper to state to the accused that his story was "outrageous"; (2) improper to state to the accused's sister that her testimony was implausible; and (3) improper for the Crown to suggest to the accused's mother that his questions were only confusing to someone intent on not telling the truth - Also, the Crown's questioning was sometimes sarcastic and disrespectful and he used inflammatory language - However, much of the cross-examination was not objected to by defence counsel - There was no miscarriage of justice - The court noted that the employee was also subjected to aggressive questioning by defence counsel, that since the critical issue at trial was credibility, the jury was well aware that both stories could not be true, and that the accused's mother was a difficult witness who was evasive and argumentative and reluctant to answer straightforward questions that might prejudice her son's defence - The jury was properly charged on how to deal with counsel's statements (not evidence) - This was a vigorously contested trial where the Crown occasionally crossed the line of propriety in questioning defence witnesses - However, there was no miscarriage of justice warranting a new trial - See paragraphs 22 to 43.

Criminal Law - Topic 5434

Evidence and witnesses - Cross-examination of accused - Improper questions - What constitute - [See Criminal Law - Topic 4961 ].

Criminal Law - Topic 5834.2

Sentencing - Considerations on imposing sentence - Effect on victim (incl. victim impact statements) - [See Criminal Law - Topic 5911 ].

Criminal Law - Topic 5911

Sentence - Extortion - The accused bar manager allegedly extorted sexual intercourse and oral sex from a female employee in exchange for not firing her and calling the police when she stole some alcohol from the bar - The trial judge sentenced the accused to 27 months' imprisonment for extortion (a sexual assault conviction was conditionally stayed) - The Ontario Court of Appeal dismissed the accused's sentence appeal - The trial judge did not err in relying on the employee's victim impact statement as an aggravating factor - It was permitted to do so to craft an appropriate sentence - The sentence was not unfit - It fell within the 18 month to four year sentence range - This was a serious sexual assault by an accused in a position of authority - The victim impact statement was not used to increase the accused's sentence to an inappropriate level - There was no error in principle and the sentence imposed was not unfit - See paragraphs 69 to 76.

Cases Noticed:

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 1].

R. v. Henderson (R.R.) (1999), 120 O.A.C. 99; 44 O.R.(3d) 628 (C.A.), refd to. [para. 22].

R. v. R. (1994), 74 O.A.C. 363; 20 O.R.(3d) 405 (C.A.), refd to. [para. 23].

R. v. Varga (E.) (1994), 72 O.A.C. 141; 18 O.R.(3d) 784 (C.A.), refd to. [para. 24].

R. v. Middleton (T.) (2012), 294 O.A.C. 82; 289 C.C.C.(3d) 55; 2012 ONCA 523, refd to. [para. 24].

R. v. Daly (1992), 57 O.A.C. 70 (C.A.), refd to. [para. 25].

R. v. R.H., [2013] O.A.C. Uned. 87; 2013 ONCA 126, refd to. [para. 27].

R. v. Johnson (K.) (2010), 267 O.A.C. 201; 262 C.C.C.(3d) 404; 2010 ONCA 646, refd to. [para. 29].

R. v. Turcotte (T.), [2005] 2 S.C.R. 519; 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1; 2005 SCC 50, refd to. [para. 29].

R. v. Paris (G.W.) et al. (2000), 138 O.A.C. 287; 150 C.C.C.(3d) 162 (C.A.), refd to. [para. 30].

R. v. Yakeleya (1985), 9 O.A.C. 284; 20 C.C.C.(3d) 193 (C.A.), refd to. [para. 40].

R. v. Khan (A.R.) (1998), 109 B.C.A.C. 299; 177 W.A.C. 299; 126 C.C.C.(3d) 523 (C.A.), refd to. [para. 40].

R. v. Chiasson - see R. v. D.C.

R. v. D.C. (2009), 258 O.A.C. 50; 2009 ONCA 789, refd to. [para. 50].

R. v. Toutissani (R.), [2007] O.A.C. Uned. 455; 2007 ONCA 773, refd to. [para. 50].

R. v. Burke (H.P.), [2002] 2 S.C.R. 857; 290 N.R. 71; 160 O.A.C. 271; 2002 SCC 55, refd to. [para. 50].

R. v. Lessard (1992), 74 C.C.C.(3d) 552 (Que. C.A.), refd to. [para. 52].

R. v. Leduc (J.) (2003), 174 O.A.C. 242; 66 O.R.(3d) 1 (C.A.), refd to. [para. 55].

R. v. Andrade (1985), 6 O.A.C. 345; 18 C.C.C.(3d) 41 (C.A.), refd to. [para. 63].

R. v. Taylor (D.) (2004), 189 O.A.C. 388 (C.A.), refd to. [para. 70].

Authors and Works Noticed:

McWilliams, Peter K., Canadian Criminal Evidence (5th Ed. 2014) (looseleaf), p. 21-177 [para. 64].

Counsel:

Vincenzo Rondinelli, for the appellant;

Stacey D. Young, for the respondent.

This appeal was heard on October 23, 2014, before Sharpe, Hourigan and Pardu, JJ.A., of the Ontario Court of Appeal.

On March 13, 2015, Hourigan, J.A., released the following judgment for the Court of Appeal.