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

• Judge: Rosenberg, Feldman and Simmons, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 20, 2009
• Jurisdiction: Ontario
• Citations: 2009 ONCA 413;(2009), 249 O.A.C. 99 (CA)

R. v. L.L. (2009), 249 O.A.C. 99 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. MY.090

Her Majesty The Queen (respondent) v. L.L. (appellant)

(C46162; 2009 ONCA 413)

Indexed As: R. v. L.L.

Ontario Court of Appeal

Rosenberg, Feldman and Simmons, JJ.A.

May 20, 2009.

Summary:

The accused was convicted by a jury of incest with his developmentally challenged daughter. The accused appealed, submitting that the trial judge erred in dealing with issues relating to whether the daughter had a motive to fabricate. Particularly, the judge failed to edit the accused's statement to exclude questions asking him for his opinion as to why the daughter would fabricate her allegation and the judge failed, in instructing the jury, to correct misleading statements by the Crown respecting the daughter's motive to fabricate and by failing to caution the jury against attributing undue weight to the absence of evidence that the daughter had a motive to fabricate. The accused also claimed that a miscarriage of justice resulted from Crown misconduct.

The Ontario Court of Appeal allowed the appeal and ordered a new trial.

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 693

Sexual offences - Evidence - Recent fabrication of complaint - [See Criminal Law - Topic 4369 ].

Criminal Law - Topic 4369

Procedure - Charge or directions - Jury or judge alone - Directions regarding motive or design - The accused was charged with incest - The Crown's opening address to the jury relied on the accused's statements to police (that he knew of no reason his developmentally challenged daughter would lie) to demonstrate a lack of any apparent motive to fabricate - The Crown improperly cross-examined the accused's son to elicit his opinion that the daughter may have lied to get out of the house, so she could have personal and financial freedom - In closing, the Crown told the jury that the daughter could not financially survive on her own, so why would she lie to get out of the house - The Ontario Court of Appeal held that the Crown improperly editorialized respecting the daughter's finances if she left home, putting that editorial comment to the jury as if it was evidence and using it to imply that the daughter had no reason to lie - The court stated that "this approach was prejudicial to the [accused] 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" - The trial judge should have instructed the jury that there was no evidence to support the editorial comment and that they should not speculate on the issue - Given the Crown's comments in his closing comments about the absence of a motive to fabricate, the trial judge should have cautioned the jury against attributing undue weight to the absence of such evidence - The Crown created a risk that the jury would conclude that the daughter must be telling the truth because there was no demonstrated motive to lie - The Crown made outright assertions that there was no motive to lie and even provided reasons not to lie - The court held that "the absence of evidence of motive to fabricate is not the same as absence of motive to fabricate. ... the fact that a complainant has no apparent motive to fabricate does not mean that the complainant has no motive to fabricate." - The trial judge erred in failing to provide the jury with corrective instructions on the issue - See paragraphs 20 to 50.

Criminal Law - Topic 4388

Procedure - Charge or directions - Jury or judge alone - Directions re addresses by counsel - [See Criminal Law - Topic 4369 ].

Criminal Law - Topic 4399.4

Procedure - Charge or directions - Jury or judge alone - Directions re allegations on cross-examination or improper questions - [See Criminal Law - Topic 4369 ].

Criminal Law - Topic 4414

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Reference to evidence not admitted - [See Criminal Law - Topic 4369 ].

Criminal Law - Topic 4952

Appeals - Indictable offences - New trials - Grounds - Conduct by Crown - The accused, convicted of incest by a jury, sought a new trial on the basis of Crown misconduct in his opening and closing addresses - The Ontario Court of Appeal ordered a new trial - 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 - The overall impact was to unfairly cast defence witnesses in a bad light - The Crown was subtly disrespectful and demeaning in cross-examining the accused - On other occasions, the Crown was sarcastic - In cross-examining the accused's wife, counsel rejected what she said and expressed his own opinion on what had happened, as if it were fact - The Crown used inflammatory language in referring to the accused 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 accused nor his wife were worthy of belief and that the accused was guilty - The court stated that "the cumulative effect of the improprieties ... undermines the fairness of the trial and requires this court to order a new trial" - See paragraphs 55 to 72.

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - [See first Evidence - Topic 4609 ].

Criminal Law - Topic 5357

Evidence and witnesses - Confessions and voluntary statements - Exclusion of irrelevant or prejudicial portions (editing) - [See first Evidence - Topic 4609 ].

Evidence - Topic 4609

Witnesses - Examination - General principles - Questions re veracity of other witnesses - The accused was charged with incest - He gave a voluntary videotaped statement to police in which he answered questions as to why his daughter would fabricate the allegations - Rather than edit out the statements, as requested by defence counsel, the trial judge chose to instruct the jury that the accused had no obligation to explain why the daughter would fabricate - The Ontario Court of Appeal stated 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. 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. First, as a general matter, it is improper to invite one witness to comment on the veracity of another. ... Second, questions of this type create a risk of shifting the burden of proof because they 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. ... such questions create a risk that the jury may draw an adverse inference if the accused fails to provide a 'reasoned or persuasive' response. ... 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. ... I see no real possibility that the jury would have been mislead into focussing 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." - See paragraphs 7 to 18.

Evidence - Topic 4609

Witnesses - Examination - General principles - Questions re veracity of other witnesses - [See Criminal Law - Topic 4369 ].

Cases Noticed:

R. v. Brown and Murphy (1982), 41 A.R. 69; 1 C.C.C.(3d) 107 (C.A.), affd. [1985] 2 S.C.R. 273; 62 N.R. 241; 65 A.R. 158, refd to. [para. 15].

R. v. Rose (E.) (2001), 143 O.A.C. 163; 53 O.R.(3d) 417 (C.A.), refd to. [para. 15].

R. v. W.S. (1994), 70 O.A.C. 370; 18 O.R.(3d) 509 (C.A.), refd to. [para. 16].

R. v. K.M.E. (2003), 178 B.C.A.C. 199; 292 W.A.C. 199; 172 C.C.C.(3d) 28 (C.A.), refd to. [para. 16].

R. v. F.C. (1996), 88 O.A.C. 303; 1996 CanLII 623 (C.A.), refd to. [para. 16].

R. v. W.B. (2000), 134 O.A.C. 1; 49 O.R.(3d) 321 (C.A.), refd to. [para. 19].

R. v. Mearow (E.), [2006] O.A.C. Uned. 468; 2006 CanLII 33765 (C.A.), refd to. [para. 19].

R. v. T., [1998] 2 N.Z.L.R. 257 (C.A.), refd to. [para. 33, footnote 2].

R. v. R.W.B. (1993), 24 B.C.A.C. 1; 40 W.A.C. 1 (C.A.), refd to. [para. 44].

R. v. Lewis, [1979] 2 S.C.R. 821; 27 N.R. 451, refd to. [para. 44, footnote 3].

R. v. O'Grady (G.L.) (1999), 120 B.C.A.C. 129; 196 W.A.C. 129 (C.A.), leave to appeal denied (1999), 252 N.R. 200 (S.C.C.), refd to. [para. 45, footnote 4].

R. v. Ilina (L.) (2003), 170 Man.R.(2d) 207; 285 W.A.C. 207; 172 C.C.C.(3d) 240 (C.A.), leave to appeal denied (2003), 320 N.R. 396 (S.C.C.), refd to. [para. 45, footnote 4].

R. v. White (R.G.) and Côté (Y.) (1996), 91 O.A.C. 321; 29 O.R.(3d) 577 (C.A.), affd. [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 45].

R. v. Boucher, [1955] S.C.R. 16, refd to. [para. 55].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 72].

Counsel:

Christopher Hicks and Catriona Verner, for the appellant;

James K. Stewart, for the respondent.

This appeal was heard on November 20, 2008, before Rosenberg, Feldman and Simmons, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court was delivered by Simmons, J.A., and released on May 20, 2009.