COURT OF APPEAL FOR ONTARIO

CITATION: Mullin v. Lagace, 2015 ONCA 757

DATE: 20151106

DOCKET: M45554 (C60974)

Hoy A.C.J.O., MacFarland and Lauwers JJ.A.

BETWEEN

Brenda Mullin

Plaintiff (Appellant)

and

Randy Lagace and
Allstate Insurance Company of
    Canada

Defendant (Respondent)

Todd J. McCarthy and Sophia Chaudri, for the moving
    party Allstate

A. Patrick Wymes, for the respondent

Heard: November 2, 2015

Motion to quash an appeal from the decision of R. Dan
    Cornell J. of the Superior Court of Justice, dated August 5, 2015, with reasons
    reported at 2015 ONSC 4267.

ENDORSEMENT

[1]

The appellant, Brenda Mullin, was injured in a car accident as a
    passenger in a vehicle driven by Randy Lagace.  She added her own insurance
    company, the respondent Allstate, as a defendant when she discovered that Mr.
    Lagace was uninsured. The action settled before trial for $190,000 plus costs
    to be agreed upon or assessed.

[2]

At the assessment, Ms. Mullin sought $528,522.25 in costs and $20,000
    for disbursements.  The assessment officer issued a Certificate of Assessment
    of Costs in the amount of $231,137.93.

[3]

Allstate appealed to the Superior Court of Justice under s. 17(b) of the
Courts of Justice Act
, R.S.O. 1990, c. C.43 and under r. 62.01(1)(b)
    of the
Rules of Civil Procedure
,
    R.R.O. 1990, O. Reg. 194
.  The appeal judge allowed the appeal and
    substantially reduced the costs award to $102,000 all-inclusive.  Ms. Mullin
    wishes to appeal that decision to this court.

[4]

Allstate moves to quash the appeal, arguing that the appeal concerns
    costs, for which leave to appeal must be sought under s. 133(b) of the
Courts
    of Justice Act
. This provision applies, says counsel, because the whole
    appeal is about costs.

[5]

Counsel for the responding party, Ms. Mullin, notes that in
Rabbani
    v. Niagara (Regional Municipality)
2012 ONCA 280 this court heard an
    appeal of the order of a Superior Court judge on an appeal from a certificate
    issued by an assessment officer; and there is no evidence that leave to appeal
    was sought or obtained. The appellant asserts that
Rabbani
is
    uncontroverted authority that the appeal is as of right. However, we note that
    the jurisdictional point was not directly addressed by the court.

[6]

Section 133 of the
Courts of Justice Act
provides: No appeal
    lies without leave of the court to which the appeal is to be taken (b) where
    the appeal is only as to costs that are in the discretion of the court that
    made the order for costs.

[7]

The moving party argues that the appeal judge found the assessment
    officers decision to be wrong in principle and substituted his own decision,
    which thereupon became a discretionary decision to which s. 133 applies.

[8]

When appeals come to this court, if the appeal relates only to costs,
    leave is required. When the appeal is both substantive and as to costs, leave
    is required for the costs component. Had this case proceeded to trial, and had the
    trial judge fixed costs, then an appeal of the trial judges costs decision would
    have been subject to the leave requirement under s. 133. The moving party submits
    that it would be anomalous and inconsistent for an appeal of a decision of an
    appeal judge from the certificate of an assessment officer to be permitted to circumvent
    the leave requirement altogether.

[9]

The moving party further argues that the appeal should be to the
    Divisional Court, and not to the Court of Appeal, based on the old authority of
Rickwood et al. v. The Town of Aylmer
, [1955] O.R. 470 (C.A.), 1955
    CarswellOnt 60. The case involved an appeal from a decision of a High Court
    judge disposing of an appeal from a taxation of party-and-party costs.  The
    argument was that such an appeal was interlocutory in that the order was one
    made in working out the judgment, and not one that finally disposed of the
    whole or some part of the matter: CarswellOnt paras. 11 and 16.  At the time
    there was no Divisional Court.
The Judicature Act
, R.S.O. 1950, c.
    190, s. 25 required leave to appeal interlocutory matters, and the Act did not
    address appeals from costs awards directly.  Speaking for the court, Aylesworth
    J.A. found, at para. 18:

I conclude that we are now bound to hold, and I do hold, that
    the order of a Judge of the High Court pronounced in review of a taxation of party-and-party
    costs is an interlocutory order, and therefore not appealable to this Court
    without leave.

[10]

The
    moving party argues that the appeal is therefore to the Divisional Court with
    leave under s. 19 of the
Courts of Justice Act
since, according to
Rickwood
,
    the decision is interlocutory.

Analysis

[11]

Since
    the appeal of a costs award of a trial judge would come directly to this court
    with leave, there seems to be no good reason why an appeal of an order of the Superior
    Court of Justice, on appeal from the Certificate of an Assessment Officer,
    should go to the Divisional Court with leave, and then possibly to this court
    with further leave.

[12]

We
    are persuaded by the moving partys argument that s. 133(b) of the
Courts
    of Justice Act
signals the Legislatures intent that costs appeals only be
    heard with leave of the court that would hear the appeal.  The appeal in
    question is entirely about costs and therefore falls squarely within the reach
    of s. 133(b).

[13]

The
    appeal route for costs appeals is now set out expressly in s. 133(b) of the
Courts
    of Justice Act.
In our view, the addition of s. 133(b) has changed the legal
    analysis, and
Rickwood
has been superseded. A simple and consistent approach
    would be preferable. We consider the appeal judges decision to be a final
    order relating to costs and therefore appealable to this court with leave under
    s. 133 of the
Courts of Justice Act,
since the amount in issue exceeds
    the threshold of $50,000 referred to in s. 19(1.2)(a) of the
Courts of
    Justice Act
.

[14]

The
    motion to quash the appeal is allowed without prejudice to the appellants
    right to seek leave of this court to appeal in the usual way, in writing
    pursuant to Rule 61.03.1(1). The moving party does not seek costs of this
    motion.

Alexandra Hoy A.C.J.O.

J.
    MacFarland J.A.

P.
    Lauwers J.A.


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. A.B., 2015 ONCA 803

DATE: 20151123

DOCKET: C57790

Feldman, Pardu and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A.B.

Appellant

Megan Savard and Rebecca McConchie, for the appellant

M. David Lepofsky, for the respondent

Nancy Dennison and Moiz Rahman, for the intervener,
    Attorney General of Canada

Heard: April 27, 2015

On appeal from the order of Justice Bruce A. Glass of the
    Superior Court of Justice, sitting as a summary conviction appeal court, dated
    October 3, 2012, with reasons reported at 2012 ONSC 5587, allowing the appeal
    from the stay of proceedings entered on June 17, 2011, by Justice Lisa Cameron
    of the Ontario Court of Justice.

Feldman J.A.:

Introduction

[1]

The appellant was 21 years old when he began dating the 15-year-old complainant,
    MB. Their romantic relationship lasted 11 months. In the latter part of the
    relationship, they engaged in sexual intercourse. After MB became pregnant, a
    CAS worker reported the appellant to the police for having sexual relations
    with a minor. Soon after, MB had an abortion and the relationship ended.

[2]

The appellant was found guilty of sexual touching under s. 151 and sexual
    assault under s. 271 of the
Criminal Code
, R.S.C., 1985, c. C-46.
[1]
Under s. 150.1 of the
Code
, no defence of consent to non-exploitative
    sexual contact was available to the appellant, because of the 6-year age
    difference between him and MB.  The trial judge concluded, however, that the
    appellant had no
mens rea
for the offence because the finding of guilt
    was based only on the age difference; MB consented to the sexual relationship
    and the appellant did not exploit her. The trial judge concluded that in those
    circumstances, s. 150.1 violated the appellants s. 7
Charter
rights
    and that the violation could not be saved under s. 1. As a result, the trial
    judge stayed the proceedings under s. 24(1) of the
Charter.

[3]

On the summary conviction appeal by the Crown, the summary conviction
    appeal judge held that s. 150.1 of the
Code
does not contravene s. 7
    of the
Charter.
He set aside the stay and remitted the matter to the
    trial judge for sentencing. The trial judge imposed a conditional discharge.

[4]

The appellant seeks leave to appeal the decision of the summary
    conviction appeal judge and asks this court to find that s. 150.1 of the
Code
contravenes s. 7 of the
Charter
. He submits that s. 150.1 is overbroad
    and therefore deprived him of his liberty interest in a manner that did not
    accord with the principles of fundamental justice and cannot be justified under
    s. 1. He submits that the appropriate remedy for this court is to sever the
    5-year close-in-age exception to the defence of consent to non-exploitative
    sexual contact with a person under 16 contained in s. 150.1(2.1)(a)(i), or in
    the alternative, to grant him an individual constitutional exemption by
    granting a stay under s. 24(1) of the
Charter
.

[5]

As I explain below, I would grant leave to appeal, but I would dismiss
    the appeal because s. 150.1 of the
Code
is not overbroad and therefore
    does not breach the
Charter
.

Facts

[6]

The trial judge found the following facts: The appellant and MB met at a
    dance studio when he was about 17 and she was about 11 years old. They were
    both good dancers. They danced as a pair for four years and became close
    friends. In August 2009, after leaving the dance studio, they began to date and
    established a boyfriend/girlfriend relationship which lasted 11 months. The
    trial judge found that the relationship was positive. In March 2010, at MBs
    insistence, the two began having sexual intercourse. MB testified that the
    appellant did not want to have sex until she was 16, but she was persistent
    because she was feeling rejected.
[2]
In May, the appellant gave MB a promise ring.

[7]

MB explained in her evidence that after her mother died that winter, she
    moved out and began living on her own when her father commenced a relationship
    with someone she knew from school. MB worked part-time at a restaurant.

[8]

MB became pregnant in late spring. The appellant did not know that MB
    had stopped using birth control. He felt they were too young to have a family,
    wanted her to have an abortion, but would support her in her choice. She had the
    abortion in July. MB testified that she was suicidal the next day. The
    appellant left that night and sent her a text saying they needed time apart.
    That was the last time she saw him. She had just turned 16.

[9]

The trial judge found that the relationship between the appellant and MB
    was loving and respectful. She found that MB was a mature young woman,
    particularly for age 15; that she was intelligent, resourceful and independent;
    and that she was helped by the appellant in meeting some of the life challenges
    with her parents that she had to deal with.

[10]

MB
    had a CAS worker who reported her relationship with the appellant to the police.
    The police followed up with MB in July, after the abortion. The trial judge
    stated that at that time MB felt hurt and was reconsidering her view of the
    relationship. She told the officer that although the appellant would have
    thought that all of their intercourse was consensual, she only consented the
    first time. The trial judge, however, rejected that assertion by MB, finding it
    inconsistent with her evidence about the relationship. The trial judge found
    that MBs evidence about her state of mind following the abortion cast doubt on
    her suggestion that the appellant took advantage of her. The trial judge then
    concluded:

I have considered [MBs] and [AB]s relationship, including the
    pregnancy, independently of their opinions about it. In my view, there is
    nothing about their relationship, good or bad, that necessarily comes about as
    a result of the fact that they were more than five years apart in age or that
    [MB] was 15. There is no physical or emotional harm to [MB] that could fairly
    be attributed to those facts and I find that there was no element of exploitation
    in their relationship. Each of them, and more importantly to this proceeding
    [MB], was making informed choices about their sexual activity. This was
    essentially conceded by the Crown quite fairly in submissions.

[11]

Following
    findings of guilt on both charges, the appellant moved for a stay of the
    proceedings under s. 24(1) of the
Charter
, alleging that the
    application of the law violated his s. 7
Charter
rights, or in the
    alternative, a declaration that s. 150.1 of the
Code
be declared
    invalid as contrary to s. 7 and not saved by s. 1.

[12]

The
    trial judge addressed the
Charter
issue. She found that the purpose of
    the law that allows young people under 16 to consent to sexual activity only
    with other people who are no more than five years older and are not exploiting
    them is to protect young people under 16 from exploitation. She found that age
    16 is a reasonable threshold for criminal activity, but in this case, there was
    no criminal activity by the appellant because he had no criminal intent and no
    ability to defend himself. The only thing that made him guilty was his age. She
    concluded that although s. 150.1 would usually produce constitutional results,
     in the rare combination of facts and law in this particular case it does not.
    Thus the appropriate remedy would be under Section 24(1) of the
Charter
.
    Given my views about [the appellants]
mens rea
I feel obliged to
    vacate the findings of guilt and stay the proceedings.

[13]

The
    Crown appealed to the summary conviction appeal court. That court found that
    the trial judge erred in law by finding that s. 150.1 infringed the
Charter
and by imposing a stay under s. 24(1). The summary conviction appeal court
    judge stated that the trial judge erred by finding no
mens rea
because
    the appellant knew how old MB was, which was sufficient to engage s. 150.1 of
    the
Code
and preclude a defence of consent. Further, had the law been found
    to be unconstitutional, the correct remedy would have been to strike down the
    law under s. 52 (1) of the
Charter
rather than impose a stay on a case-by-case
    basis. He concluded that the trial judge effectively rewrote the law for the
    appellant. He set aside the stay and referred the case back to the trial judge
    for sentencing. The trial judge imposed a conditional discharge.

Issues

[14]

This
    appeal raises the following issues:

1. As this appeal is from a summary
    conviction appeal decision, should leave to appeal be granted under s. 839 of
    the
Code
?

2. If leave to appeal is granted, does s. 150.1 of the
Criminal
    Code
breach the appellants s. 7
Charter
right to liberty in a
    manner that is overbroad and therefore not in accordance with the principles of
    fundamental justice?

3. If there is a s. 7 breach, can the legislation be saved
    under s. 1 of the
Charter
?

4. If not, what remedy, if any, should be granted to the
    appellant?

Analysis

Issue 1: Leave to appeal

[15]

In
    my view, this is a case where leave to appeal should be granted. I note that
    although this is the second level of appeal, the first appeal to the summary
    conviction appeal court was a Crown appeal. Therefore, this is effectively the
    first appeal by the appellant. The constitutionality of s. 150.1 of the
Code
is an issue of law of significance to the administration of justice generally:
R.
    v. R.R.
, 2008 ONCA 497, 90 O.R. (3d) 641, at para. 33. I would grant leave
    to appeal.

Issue 2: Does s. 150.1 of the
Criminal Code
breach s.
    7 of the
Charter
?

[16]

Subsection
    150.1(1) of the
Code
provides that where an accused is charged with
    certain sexual offences, including sexual assault, in respect of a complainant
    under the age of 16 years, it is not a defence that the complainant consented
    to the activity that forms the subject-matter of the charge. Subsection (4)
    provides the defence of mistake of age where the accused took all reasonable
    steps to ascertain the age of the complainant. The
mens rea
of such
    offences is therefore committing the alleged
actus reus
with a person
    under 16 unless the accused believed the complainant was 16 or over and took
    all reasonable steps to ascertain that belief.

[17]

In
    the Parliamentary debates concerning this provision, the age below which
    consent is not a defence to a sexual offence charge was referred to as the age
    of protection. Subsection 150.1(1) stated:

150.1 (1) Subject to subsections (2) to (2.2), when an accused
    is charged with an offence under section 151 or 152 or subsection 153(1),
    160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in
    respect of a complainant under the age of 16 years, it is not a defence that
    the complainant consented to the activity that forms the subject-matter of the
    charge.

[18]

Subsections
    150.1(2) through 150.1(2.3) provide a number of exceptions to s. 150.1(1) where
    a defence of consent remains available, including certain transitional
    exceptions resulting from changes to the legislation in 2008 and 2015.
[3]
In particular, subsections (2) and (2.1) set out what are referred to as the
    close-in-age exceptions, which may apply where the complainant is 12 or 13, or
    14 or 15.  The close-in-age exceptions provided:

(2) When an accused is charged with an offence under section
    151 or 152, subsection 173(2) or section 271 in respect of a complainant who is
    12 years of age or more but under the age of 14 years, it is a defence that the
    complainant consented to the activity that forms the subject-matter of the
    charge if the accused

(a) is less than two years older than
    the complainant; and

(b) is not in a position of trust or
    authority towards the complainant, is not a person with whom the complainant is
    in a relationship of dependency and is not in a relationship with the
    complainant that is exploitative of the complainant.

(2.1) When an accused is charged with an offence under section
    151 or 152, subsection 173(2) or section 271 in respect of a complainant who is
    14 years of age or more but under the age of 16 years, it is a defence that the
    complainant consented to the activity that forms the subject-matter of the charge
    if

(a) the accused

(i) is less than five years older
    than the complainant; and

(ii) is not in a position of trust or
    authority towards the complainant, is not a person with whom the complainant is
    in a relationship of dependency and is not in a relationship with the
    complainant that is exploitative of the complainant; or

(b) the accused is married to the complainant.
[4]

[19]

It
    is s. 150.1(2.1)(a)(i)  that is challenged by the appellant in this case.

[20]

The
    appellant submits that s. 150.1, with the limited close-in-age exception, violates
    s. 7 of the
Charter
.

Section 7 of the
Charter
states
    that:

Everyone has the right to life, liberty and security of the
    person and the right not to be deprived thereof except in accordance with the
    principles of fundamental justice.

[21]

In
Carter v. Canada (Attorney General)
, 2015
    SCC 5, [2015] 1 S.C.R. 331, the Supreme Court of Canada stated that three
    principles of fundamental justice have emerged as central in the recent s. 7
    jurisprudence: laws that impinge on life, liberty or security of the person
    must not be arbitrary, overbroad, or have consequences that are grossly
    disproportionate to their object (para. 72). In order to determine whether a
    law does or does not accord with these principles, the court compares the
    object or purpose of the law with the effects of the law as drafted.

[22]

The
    appellant says that the law deprives him of his liberty interest because of the
    potential penalty of incarceration upon conviction.
[5]
He submits that the law does not accord with the principles of fundamental
    justice because it is overbroad in its application to non-exploitative sexual
    activity between a person who is under 16 and an accused who is more than 5
    years older.

[23]

In
Carter
, the Supreme Court explained how a court should assess
    overbreadth under s. 7:

[85]    The overbreadth inquiry asks whether a law that takes
    away rights in a way that generally supports the object of the law, goes too
    far by denying the rights of some individuals in a way that bears no relation
    to the object:
Bedford
, at paras. 101 and 112-13.  Like the other
    principles of fundamental justice under s. 7, overbreadth is not concerned with
    competing social interests or ancillary benefits to the general population.  A
    law that is drawn broadly to target conduct that bears no relation to its
    purpose in order to make enforcement more practical may therefore be
    overbroad (see
Bedford
,

at para. 113).
The question is not whether Parliament has chosen the least
    restrictive means, but whether the chosen means infringe life, liberty or
    security of the person in a way that has no connection with the mischief
    contemplated by the legislature.
The focus is not on broad social
    impacts, but on the impact of the measure on the individuals whose life,
    liberty or security of the person is trammelled. [Emphasis added.]

[24]

Since
    the argument of this appeal and just prior to the release of these reasons, the
    Supreme Court released its decision in
R. v. Moriarity
,  2015 SCC 55,
    where the court discussed the principle of overbreadth in the context of a law
    where the liberty interest was affected.

[25]

In
Moriarity
, Cromwell J. explained further the importance of identifying
    and articulating the purpose or object of the impugned law in order to assess
    whether there is a disconnect between its purpose and its effects. The effects
    of the law arise out of the means the law uses to achieve its purpose (paras.
    24 and 27):

The objective is identified by an analysis of the provision in
    its full context. An appropriate statement of the objective is critical to a
    proper overbreadth analysis. In general, the articulation of the objective
    should focus on the ends of the legislation rather than on its means, be at an
    appropriate level of generality and capture the main thrust of the law in
    precise and succinct terms. (para. 26)

[26]

He
    also makes a number of other clarifying points:

1.

The law cannot
    be defined too generally or too narrowly because each way will effectively
    dictate whether the law is found to be overbroad (para. 28);

2.

The overbreadth
    analysis is not focused on the propriety of the objective, but assumes that the
    legislative objective is appropriate and lawful (para. 30);

3.

The main source
    for determining the purpose is the text, context and scheme of the
    legislation, and secondarily extrinsic evidence such as legislative history
    and evolution including statements of intention made in the legislature (para.
    31); and

4.

The laws
    objective should generally be identified and stated by the court in a manner
    that is succinct and precise (para. 29).

[27]

The
    first step in the overbreadth analysis is therefore to identify the purpose of
    the impugned provision.

The parties submissions

[28]

The
    appellant submits that there are two purposes for the legislation: 1) to
    protect young people from sexual exploitation; and 2) to preserve the ability
    of young people to have non-exploitative sexual contact. He argues that in this
    case, as the trial judge found there was no sexual exploitation, the effect of
    the law was to criminalize his conduct beyond what the law intended, as well as
    to impede the complainants ability to have a non-exploitative sexual
    relationship with him.

[29]

The
    appellant attacks the close-in-age exception as the portion of s. 150.1 that makes
    the section overbroad. He submits that by making the 5-year defined age
    difference a limit on the defence of consent for non-exploitative sexual contact,
    the law criminalizes conduct  non-exploitative, consensual sex between a child
    aged 16 or younger and an adult more than 5 years older  that has no
    connection with its purposes. In support of his submission, the appellant
    points to the critical comment of one Member of Parliament during the 1987
    debate on a predecessor version of this provision. He also points to some
    evidence before Parliamentary Standing Committees in 2007 and 2008 that age is
    an imperfect proxy for exploitation and that age disparity does not necessarily
    match life experience and maturity.

[30]

The
    appellant argues that these concerns came to fruition in this case, where the
    trial judge found that the relationship between the appellant and MB was not
    exploitative, yet the judge had to convict him of the offence.

[31]

The
    respondent Crown and the intervener, the Attorney General of Canada, both argue
    that the appellants description of the purpose of the section is too narrowly
    drawn. The purpose is not merely to protect against actual exploitation that
    may occur in a particular case. The AG Canada describes the provision as part
    of a broader legislative scheme designed to protect all young persons from
    involvement in any kind of sexual activity with adults.

[32]

It
    explains the rationale for protecting children from sexual activity with adults
    in the following very cogent passage from its factum:

This protection is necessary because adults are in a position
    to use undue influence, persuasion and manipulation to secure a young persons
    consent to sexual activity as a result of the inherent power imbalance between
    young persons and adults. Young persons who are involved in sexual activity
    with adults are also at greater risk of adverse health and psychological
    consequences, including pregnancy and sexually transmitted diseases, given that
    young persons are less likely to appreciate the consequences of their actions
    and protect against them.

[33]

The
    AG Canada explains that this legislative scheme originated in the 1980s, when the
    reports of two legislative committees led to the enactment of new offence
    provisions in the
Criminal Code
designed to protect children. Those
    two reports were the Report of the Committee on Sexual Offences Against
    Children and Youths (Ottawa: Minister of Supply and Services Canada, 1984),
    known as the Badgley Report, and the Report of the Special Committee on
    Pornography and Prostitution (Ottawa: Minister of Supply and Services Canada,
    1985), known as the Fraser Committee Report.

[34]

The
    new offences, ss. 151 and 152 of the
Code
, came into force in 1988,
    together with s. 150.1. While the age of protection for a sexual assault charge
    was already 14, the new offences expanded the forms of sexual conduct that
    could result in criminal charges, and the effect of the overall scheme was to
    protect children 14 and under from all sexual contact with adults.

[35]

In
    2008, Parliament increased the age of protection from 14 to 16 years old. It
    also enacted the 5-year close-in-age exception to enable 14 and 15 year-olds to
    have non-exploitative consensual sexual contact with peers.

[36]

The
    respondent and intervener submit, based on the legislative history as a whole
    and excerpts from House of Commons debates, that the age of protection was
    raised from 14 to 16 to achieve three goals: 1) to establish a clear age below
    which children would be off-limits to adults for sexual activity; 2) to better
    protect 14 and 15 year-olds from undue influence, persuasion and manipulation
    by adults to engage in sexual activity, given the inherent power imbalance
    between adults and children, and to thereby promote the healthy development of
    young persons; and 3) to bring Canada into line with other countries that had
    enacted 16 as the age of protection. This related in part to the problem of
    international sexual predators and sexual tourism, including on-line predators.
    The respondent adds that the legislation also: 4) facilitates the effective
    prosecution of sex offenders by removing the need for the child to testify; and
    5) protects the freedom of teenagers to experience and develop sexual autonomy
    with age-appropriate peers.

[37]

The
    close-in-age exception is consistent with and forms part of the broader purpose
    of the legislative scheme. It allows teenagers to engage in sexual
    experimentation and relationships with peers whom they would encounter in the
    course of normal teenage activities, while continuing to protect them from the
    harms associated with sexual approaches by adults.

The purpose of the law

[38]

In
    my view, the appellants characterization of the purpose of s. 150.1 does not
    bear scrutiny and is too narrowly drawn. The purpose is apparent from the words
    of the legislation, supported by statements made by the government when the
    legislation was introduced. Parliaments intention is not simply to prevent
    sexual exploitation of children or even potential sexual exploitation of
    children, although those are certainly two of the laws important effects. The
    purpose of the law, stated succinctly, is to protect children from sexual
    contact with adults or the invitation to have sexual contact by adults. The
    close-in-age exceptions reflect Parliaments view that the inherent power
    imbalance between adults and children vitiates consensual sexual relations
    between them.

[39]

In
    order to achieve the objective of protecting children, the means Parliament chose
    was to draw a bright-line age of protection of 16 years and to carve out a
    five-year close-in-age exception for non-exploitative conduct, where the
    defence of consent would be available.

[40]

The
    Supreme Court has long recognized that Parliament may use reasonable age
    criteria to implement policy: see e.g.
A.C. v. Manitoba (Director of Child
    and Family Services)
, 2009 SCC 30, [2009] 2 S.C.R. 181, at para. 110, per
    Abella J.
[6]
Further, it is not appropriate for courts to second-guess Parliaments
    determination, in this case, of the appropriate age of protection of children
    from sexual contact with adults, as long as the age chosen is a reasonable one:
    see e.g.
Gosselin v. Québec (Attorney General)
, 2002 SCC 84, [2002] 4
    S.C.R. 429, at para. 57, per McLachlin C.J.

[41]

Although
    these propositions are frequently discussed in the context of a s. 15 or a s. 1
Charter
analysis, the Supreme Court observed in
R v. Clay
, 2003
    SCC 75, [2003] 3 S.C.R. 735, at para. 4, The task of the Court in relation to
    s. 7 of the
Charter
is not to micromanage Parliament's creation or
    continuance of prohibitions backed by penalties. It is to identify the outer
    boundaries of legislative jurisdiction set out in the Constitution. The method
    for that identification in the context of assessing overbreadth under s. 7, by
    comparing the purpose with the effects of the law, has now been further refined
    by the Supreme Court in
Bedford
,
Carter
and
Moriarity
.

[42]

I
    note that there are a number of other contexts in which legislatures use
    age-based criteria to achieve their interest in protecting children. The need
    for society, through government and the courts, to protect children is
    recognized, not only through the criminal law, but in the family context and is
    manifested in a number of laws and doctrines. In custody and child support
    matters, courts are to be guided by the best interests of the child, while
    child protection orders under child welfare legislation are based on whether a child
    is found to be in need of protection. In both cases, the applicable legislation
    defines a child in terms of age: see e.g.
Children's Law Reform Act
,
    R.S.O. 1990, c. C.12, s. 18(2);
Child and Family Services Act
, R.S.O.
    1990, c. C.11, s. 3(1). The applicability of these doctrines and laws does not
    depend on the attributes of a particular child, such as maturity or
    independence: see, on this point, McLachlin C.J.s concurring opinion in
A.C.
,
    at paras. 143-145.

[43]

It
    was reasonable for Parliament to choose the age of 16 as the age of protection from
    sexual contact with adults. The age was raised from 14 in part because of
    evidence that children between 14 and 16 were being targeted by on-line
    predators and others, and because Canada had become an outlier by having a
    lower age of protection than other countries, thereby attracting international
    predators.

[44]

Similarly,
    Parliament was entitled to create a close-in-age exception for non-exploitative
    sexual contact between teenagers and their peers, and again to draw a
    reasonable line of age difference for teenagers to have appropriate
    relationships, including sexual relationships, with other young people up to,
    in the case of a 15-year-old, age 20. This exception was created for the
    benefit of the teenagers that Parliament sought to protect.

[45]

For
    an adult to suggest that by excluding him from the close-in-age group,
    Parliament has made the law overbroad, is to misunderstand the protective
    purpose of the law. As I stated above, the protection for children is not simply
    from sexual exploitation but from any sexual contact or the invitation to
    sexual contact with adults. Parliament viewed the protection to be necessary because
    of the inherent power imbalance that undermines consent, and because of the
    physical and psychological consequences of a sexual encounter between a child
    and an adult stemming from that imbalance.

[46]

Once
    the object of the law is correctly understood, it is clear that the sexual
    relationship between the 21-year-old appellant and the 15-year-old complainant fell
    within the type of conduct that this legislative scheme is intended to address.

[47]

The
    appellants argument that he should not be caught by the legislation because he
    did not exploit the complainant effectively seeks to equate his position with
    that of Gloria Taylor in
Carter
, a person whom the Supreme Court of
    Canada found was wrongly included in and stigmatized by the legislation, there
    as vulnerable, here as exploitative. As I will explain, I reject this
    parallel.

[48]

In
Carter
, the appellants challenged ss. 14 and 241(b) of the
Code
,
    the prohibitions on assisted suicide. Those sections made it an offence to aid
    or abet a person who commits suicide or to inflict death on a person with the
    persons consent. The appellants submitted that the sections infringed the s. 7
    rights to life, liberty and security of the person of certain individuals
    seeking to commit physician-assisted suicide.

[49]

In
    order to assess whether the laws against assisted suicide were overbroad,
    arbitrary, or grossly disproportionate, the court had to first determine the
    object of the impugned laws. At para. 78, the court observed, based on its
    decision in
Canada (Attorney General) v. Bedford,
2013 SCC 72, [2013]
    3 S.C.R. 1101, that its jurisprudence required it to define the object of the
    law precisely for the purposes of s. 7, and to confine the object of the law
    to measures directly targeted by the law.

[50]

Based
    on those principles, the court rejected the governments submission that the
    purpose of the law was to preserve life, whatever the circumstances, as that
    formulation went beyond the ambit of the provision. The court concluded that
    the direct target of the measure is the narrow goal of preventing vulnerable
    persons from being induced to commit suicide at a time of weakness.

[51]

Once
    the purpose of the law was determined, the question was whether the law was
    overbroad in relation to its purpose, that is, whether the means Parliament
    chose to achieve that purpose affected the s. 7 rights of some individuals in
    a way that has no connection with the mischief contemplated by the legislature
    (para. 85). The court concluded, at para. 86, that the law was overbroad
    because not every person who wishes to commit suicide is vulnerable. The
    appellant Gloria Taylor was such a person: the evidence established that she
    was not vulnerable and was able to make her own decisions.

[52]

The
    court rejected the argument that because it was too difficult to conclusively
    identify the vulnerable, the law was not overbroad by simply protecting everyone
    who was potentially vulnerable. Adopting its position from
Bedford
,
    the court held that this kind of argument would be more appropriately addressed
    as part of the s. 1 analysis.

[53]

In
    my view, the result in
Carter
is not applicable here for three
    reasons.

[54]

First,
    having found that the purpose of the law is not just to prevent sexual
    exploitation of children, but to protect them from sexual contact with adults
    because of the power imbalance and the consequences that flow from that, s.
    150.1 does not affect the appellants right to liberty in a way that has no
    connection to the mischief contemplated by the legislature. Therefore, the
    premise that the appellant is not caught by the purpose of the legislation distinguishes
    this case from
Carter
.

[55]

Second,
    in
Carter
, although the assisted suicide provisions of the
Code
applied on their face to all persons, the court held that they were directed at
    a much more limited protected target group:  vulnerable persons who could be induced
    to commit suicide at a time of weakness. Defined in that way, inclusion in the
    group depended on vulnerability.

[56]

In
    contrast, in the case of s. 150.1, Parliament has specifically crafted and
    tailored its purpose and application to protect a specific group of people  children
     and has done it by reference to age and age proximity. There is no vagueness or
    judgment call in the applicability of the provisions to all members of the
    defined group of children.

[57]

Third,
    in
Carter
, the Supreme Court was analyzing the s. 7 rights of individuals
    who argued their rights were infringed by needlessly being included in the
    protected group. Here, the appellant is not a child in the protected class
    asserting that he is mature enough to make his own sexual choices, and
    therefore does not need the laws protection. Rather, he is a person targeted
    by the legislation as one from whom the protected class members require the
    legislated protection. Simply put, the appellants position is not comparable
    to Ms. Taylors position in
Carter.

[58]

Finally,
    I would add this. While deference is owed to trial judges on findings of fact,
    in this case, the trial judge made findings about exploitation and harm to the
    complainant that were not relevant to guilt or innocence under s. 150.1 of the
Code
.
    Although the trial Crown conceded the point, in my view, the trial judge erred
    in her interpretation and application of s. 150.1 and that error undermines
    those findings.

[59]

The
    trial judge found that there was no exploitation here and that there was no
    physical or emotional harm to MB that could be attributed to the age difference
    between her and the appellant. She further found that MB was a mature young
    woman, particularly for age 15, who demonstrated independence and capability,
    and who made informed choices about sexual activity. Finally, she rejected MBs
    suggestion that the appellant took advantage of her, attributing the suggestion
    to the hurtful aftermath of the end of the relationship.

[60]

In
    making these findings, the trial judge failed to consider and address the fact
    that the complainant was a 15-year-old teenager living on her own, who had recently
    lost her mother and become estranged from her father. She had CAS involvement,
    presumably because she was living on her own. She was in a relationship with a
    young man 6 years older than herself. She pressured him to have sex with her
    because she was feeling insecure in their relationship. Mention was made in her
    evidence of going off the pill and not using condoms, but using the rhythm
    method of birth control, which resulted in the pregnancy.  She had an abortion,
    and the relationship broke up. There was also reference in the evidence to
    pressure by the appellants mother on MB to have the abortion.

[61]

This
    15-year-old young woman dealt with many challenges that most teenagers
    hopefully do not have to face. To suggest that her apparent ability to do so meant
    that she did not need protection from the power imbalance inherent in a
    relationship with a man six years older reflects a misunderstanding of the
    purpose of s. 150.1.

[62]

In
    my view, the trial judge misunderstood the protective purpose and intended
    effect of the law, which caused her to err in her application of the law to the
    facts. Although the appellant may not have intended to exploit the complainant,
    she clearly suffered emotional and psychological harm from engaging in a sexual
    relationship with him. This would not have occurred had she received the
    protection the law intended.

Conclusion

[63]

In
    my view, s. 150.1 does not breach s. 7 of the Charter. Although the appellants
    liberty interest was impinged, that impingement was in accordance with the principles
    of fundamental justice. In particular, s. 150.1 is not overbroad in its
    application. As there is no breach of s. 7, and no need to consider s. 1, there
    is also no need to address the issue of remedy.

[64]

I
    would dismiss the appeal.

Released: KF NOV 23, 2015

K. Feldman J.A.

I agree. G. Pardu
    J.A.

I agree. David Brown
    J.A.

[1]
The conviction under s. 151 was stayed under
R. v. Kienapple
, [1975] 1
    S.C.R. 729.

[2]
The appellant knew that MB was 15. There was an issue whether he knew that the
    age of consent was not 14 but 16.

[3]
The latter change came into force after this appeal was argued but plays no
    role in the determination of this appeal.

[4]
The marriage exception has now been repealed.

[5]

The appellant received a conditional discharge, and at the
    time of his offence, s. 271 had only a maximum term of imprisonment. The
    offence was amended in 2012 to add a mandatory minimum where the complainant is
    under the age of 16 and the Crown proceeds summarily. This mandatory minimum
    was increased to 6 months in 2015.

[6]
[110]
Age distinctions have frequently been upheld
    by this Court (see
Law v. Canada
    (Minister of Employment and Immigration)
,
1999
    CanLII 675 (SCC)
, [1999] 1
    S.C.R. 497;
Gosselin v. Quebec
    (Attorney General)
,
2002
    SCC 84 (CanLII)
, [2002] 4 S.C.R.
    429;
McKinney v. University of
    Guelph
,
1990
    CanLII 60 (SCC)
, [1990] 3 S.C.R.
    229;
Harrison v. University of
    British Columbia
,
1990
    CanLII 61 (SCC)
, [1990] 3 S.C.R.
    451;
Stoffman v. Vancouver General
    Hospital
,
1990
    CanLII 62 (SCC)
, [1990] 3 S.C.R.
    483; and
Douglas/Kwantlen Faculty
    Assn. v. Douglas College
,
1990
    CanLII 63 (SCC)
, [1990] 3 S.C.R.
    570). (But see
Tétreault-Gadoury v.
    Canada (Employment and Immigration Commission)
,
1991
    CanLII 12 (SCC)
, [1991] 2 S.C.R.
    22.) They are currently employed to determine when a person can marry, vote,
    drive, consent to sexual intercourse and sell property. As noted by McLachlin
    C.J. in
Gosselin
, it must be recognized that age‑based
    distinctions are a common and necessary way of ordering our society (para.
    31).  In the context of
s.
    15
of the
Charter
, McLachlin C.J.
    has commented that while all age‑based legislative distinctions have an
    element of this literal kind of arbitrariness, this alone does not
    invalidate them [p]rovided that the age chosen is reasonably related to the
    legislative goal (
Gosselin
, at para. 57).


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ahmed, 2015 ONCA 751

DATE: 20151106

DOCKET: C57601

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ahmed Ahmed

Appellant

Russell Silverstein and A. Cooper, for the appellant

John Patton, for the respondent

Heard: September 9, 2015

On appeal from the conviction entered on January 29, 2013
    by Justice Maureen D. Forestell of the Superior Court of Justice, sitting with
    a jury.

MacPherson J.A.:

A.

Introduction

[1]

The appellant Ahmed Ahmed was convicted of attempted murder and
    possession of a loaded restricted firearm following a jury trial.

[2]

The appellant testified at the trial. His testimony in chief was quite
    brief. Crown counsel conducted a lengthy cross-examination. The appellant
    contends that, in one major respect, the cross-examination was completely
    unfair and amounted to trial by innuendo. His principal ground of appeal is
    that the trial judge erred by permitting the challenged line of questions.

B.

Facts

(1)

General

[3]

The appellant and the victim, Donovan Brooks (widely known in the
    community by his nickname Debo), had been acquaintances for several years. They
    were both long-term residents of Lawrence Heights, a neighbourhood located in
    North York.

[4]

The appellant and Brooks attended a bar the night before the shooting.
    The next day, September 25, 2011, Brooks learned that he was accused of taking
    something from the appellant. He decided to go to the Juice Bar, a local
    meeting place, with his younger brother Ryan Malcolm to try to clear his name.

[5]

At approximately 6:00 p.m., someone shot Brooks several times at close
    range, hitting his arm, chest, back and pelvis.

[6]

Brooks survived and identified the appellant as the shooter. He
    testified to this effect at the trial.

[7]

Malcolm made a video statement to police shortly after the shooting,
    saying that he had never seen the shooter before. At trial, Malcolm changed his
    story and identified the appellant as the shooter. He testified that he did not
    tell the truth until the trial because of the dangers of being a snitch in
    the Lawrence Heights neighbourhood plus a threat he received to discourage him
    from testifying.

[8]

Brooks girlfriend, Sophia Lindsay, was not present at the shooting.
    However, she testified that she was approached by the appellant at a mall about
    six weeks later. She testified that the appellant apologized for shooting
    Brooks and said that he was mistaken in thinking that Brooks had stolen his
    gun.

[9]

The appellant testified that he was not at the Juice Bar on September
    25, 2011 and he did not shoot Brooks.

(2)

The cross-examination of the appellant

[10]

During
    his examination in chief, the appellant was asked how he became aware that
    Brooks had been shot:

Q.      Do you know how  describe for us the circumstances, if
    you know, of how you became aware that Donovan Brooks or Debo had been shot?

A.      Um, Im guessing somewhere around that time, early
    October, whatnot, I received, like a text message. I dont know. But I guess a
    couple of days after it might have happened, I guess it happened whatever, I
    received a text message, a BBM broadcast, a Blackberry broadcast message. Its
    just broadcasted by all your friend list or whatnot, right? And said, um, a
    shooting had happened in Lawrence Heights.

Q.      Did it tell you who was involved in the shooting?

A.      No. Well, let me get to it first.

Q.      Sorry, I interrupted you.

A.      I cant remember who exactly I texted back, but
    basically the  I dont know if everybodys familiar with a BBM.

Q.      Why dont you tell us.

A.      Okay. Its a broadcast message. Basically, everybody on
    your friend list, you just send it, like, you write a message and you send it
    to your friend list. So it was  I was getting them from random people. So I
    text back one of the people, Im like, What happened? And they said shooting
    happened. I said, What happened? Um, Debo had gotten shot. I said, Oh, okay.
    Thats crazy.

[11]

The
    Crown engaged in a lengthy cross-examination of the appellant. He singled out
    this portion of the appellants testimony for special and protracted attention.
    His goal was to challenge the appellants credibility by establishing that it
    was unlikely that the appellant only heard about the shooting a couple of days
    after it might have happened. His route to reach this goal was to ask the
    appellant about several other shootings in the Lawrence Heights neighbourhood
    and how he had come to know about them.

[12]

The
    Crown started this line of questioning almost immediately. His sixteenth question
    to the appellant was: Do you know someone named Trooper? The appellant
    answered No. The cross-examination continued:

Q.      You know youre under oath, right?

A.      Yes, I do.

Q.      Do you know someone named Trooper?

A.      As of right now?

Q.      No, did you ever know someone named Trooper?

A.      Did I know him or did I hear of him?

Q.      Did you know him. Or know of him.

A.      Yes, I did. Theres different Troopers. The name
    Troopers used, like, a lot of different people have the same nicknames.

Q.      Whos the Trooper you were aware of?

A.      Um, Trooper, he passed away.

Q.      Hes dead.

A.      Yes.

Q.      When did you last see him?

A.      I dont know. Like 2006 maybe?

Q.      2007?

A.      Maybe 2007. Yes.

Q.      How did Trooper die as far as you know?

A.      He was shot, is what I heard. Yeah.

Q.      And where were you when Trooper was shot?

A.      I dont know.

Q.      You dont remember?

A.      That is  no. I dont.

Q.      You said you heard he got shot.

A.      Yes.

Q.      Where were you when you heard that? Or how did you hear
    about it?

A.      I heard about it through the community. Through the
    Yelp Program. I came to work the next day and I heard a shooting had happened
    in the neighbourhood and he was shot.

Q.      And you knew of Trooper?

A.      Knew of him? Like, yeah. I used to see him around.

Q.      Did you hang out with him?

A.      No.

Q.      Did you chill with him?

A.      No.

Q.      Did you see him at the Juice Bar ever?

A.      No.

Q.      But youve been to the Juice Bar many, many times.

A.      Correct.

Q.      Never saw Trooper there?

A.      No.

[13]

The
    Crown moved off to other topics, but then returned to Trooper:

Q.      Do you remember when Trooper was shot? Im just asking
    you if you remember when Trooper was shot.

A.      No, not exactly. Exact date, no.

Q.      How long did you know Trooper?

A.      Not for long.

Q.      Approximately.

[14]

Defence
    counsel interceded to challenge the relevance of this line of questioning. The
    trial judge asked the jury to retire and she and both counsel discussed the
    issue:

THE COURT:        [Crown], what relevance are these questions
    about Trooper being shot?

[CROWN]:             Im trying to assist him in recalling the
    time-frame of when he left the country, when he came back, what employment he
    was doing at the time.

THE COURT:        What does the shooting of Trooper have to do
    with any of that?

[CROWN]:             Well, its obviously an event that he
    remembers. Hes already told us that.

THE COURT:        It appears to me to be coming dangerously
    close to insinuating that he was involved in the shooting of Trooper in light
    of the number of times youve gone back to it.

[CROWN]:             He clearly has a recollection of that
    incident. I expect he is going to have a recollection of some other significant
    incidents in the community, and then Im going to follow up with his
    recollection of this incident.

THE COURT:        Why?

[CROWN]:             Sorry? Why what?

THE COURT:        Why? Why is this incident important? I dont
    understand the relevance.

[CROWN]:             Im testing his recall of a particular
    time-frame and pivotal events that would assist him in recalling that
    particular time-frame, and then Im going to move on to do the same with
    respect to our case.

[15]

At
    this point, defence counsel joined the exchange:

[DEFENCE]: I always endeavour to give opposing counsel the
    benefit of the doubt if I hear a cross-examination in an area Im assuming that
    there may be some means by which it could be tied together, made relevant to
    this case. I say with the greatest of respect to my friend, this
    cross-examination has nothing to do with anything in this case. It is character
    assassination. It is insinuation. That is all it is. It is very regrettable my
    friend is going down this road and I am respectfully asking Your Honour to put
    a stop to it. Lets get on with the issues that are relevant to this case, not
    the shooting of someone he knows. The very fact that he knows people who get
    shot is arguably prejudicial. Its got nothing to do with this case. Its
    extremely unfair.

[16]

At
    this juncture, the trial judge ruled that the Crown could not ask the appellant
    any more questions about Trooper:

THE COURT:        All right. I see no reason that the shooting
    of someone named Trooper is relevant to any issue in this trial. There is
    clearly a danger that it will be used by the jury to draw some sort of adverse
    inference from Mr. Ahmeds association with this person who was shot. If you
    wish to assist him in recalling a time-frame, I am confident that there are
    many other events that you can refer to other than the shooting of Trooper, so
    I am ruling that you cannot return to this area.

[17]

Before
    the jury returned, counsel and the trial judge continued to discuss the
    parameters of the Crowns cross-examination of the appellant. The Crown stated
    that areas he proposed to cover included the appellants employment history,
    his criminal record, and his recollection of events in the community. Defence
    counsel objected, saying asking about other people and if he knows what other
    people are doing or other events that have occurred, it is completely
    irrelevant, completely inappropriate and I urge Your Honour to  stop it in its
    tracks before any harm is done.

[18]

The
    trial judge reminded counsel of her ruling just minutes before:

THE COURT:        All right. So that its clear, Ive already
    ruled about the shooting of Trooper. Absent a ruling from me, I would expect
    that you would not be asking Mr. Ahmed about other people he knows who have
    been shot.

[19]

The
    Crowns immediate response was: Well, then we might as well deal with that
    now. He expanded on his reasons for wanting to ask the appellant questions
    about previous shootings in the community:

[CROWN]:             And likewise, when other people are shot,
    everybody knows about it and its also a marker for someones memory in terms
    of comparing and contrasting what they were doing in terms of assisting them in
    recalling events from several years ago. So if I asked him specifically about
    certain individuals being shot, hes going to remember it. Everybody would
    remember it who knew of the person, and that recollection, in my respectful
    submission, is something that can be compared and contrasted with certain
    components of his evidence here in which he claims to recall and not recall.
    And in my submission, thats a fair comparison and an area that I must explore
    in terms of this set of facts.

[20]

Defence
    counsel countered:

[DEFENCE]: Your Honour, if I may? Cross-examine him all  my
    friend can cross-examine the witness all he wants about his recollection of
    these events and how he came to become aware of people having been shot and
    what efforts he made to recollect what he may have been doing earlier on, but
    whatever probative value it may have asking him about other events in the past
    where other people have been shot, and Im not sure it has much probative value
    at all on that issue, surely, Your Honour, the prejudicial effect of doing that
    far outweighs. And to engage in that character assassination, asking about all
    the people he knows who have been shot is, in my submission, Your Honour,
    nothing other than a way to insinuate to the jury that Mr. Ahmed is involved in
    a violent subculture and criminal underworld. That is the only impression that
    could be left.

It is completely an improper thing to do, in my submission,
    when asked about the reality of how the jury is going to perceive this. In my
    submission, thats exactly why its being done. Not to test his recollection at
    all.

[21]

The
    trial judge then made her ruling:

THE COURT:        [S]o Ill deal with the issue thats before
    me now which, as I understand it, is whether or not the Crown can ask Mr. Ahmed
    about his knowledge of other shootings in the community with a view to testing
    his recollection of how he heard about them and where he was when he heard
    about them in order to contrast that to his recollection of how he heard about
    this shooting, where he was when he heard about the shooting. Within that very
    limited area, Im going to permit the question. However, if it is repetitive or
    goes into detail about his relationship with the person who was shot, I will
    not permit it and I will stop the questioning before the jury.

So the context, the relevance as I see it, is only to test his
    recollection of where he was and how he heard about other shootings within the
    community of people he knew of. In other words, people he was familiar with.

I want to be clear that the nature of his relationship and the
    familiarity with the people is not a relationship you are entitled to explore
    in any way. Just that he knew of the person that was shot and how and when he
    heard of the shooting so as to make the comparison with when and how he heard
    about this shooting. But the nature of the relationship is not permissible.

[22]

Following
    this ruling, after testing the appellant on his recall of other events, the
    Crown briefly returned to Trooper.

[23]

The
    Crown then cross-examined the appellant at length about how he had heard about
    the shooting of Brooks.

[24]

The
    Crown turned to the appellants memory of other shootings in the neighbourhood.
    In quick succession, the Crown questioned the appellant about his knowledge of the
    shootings of three other people familiar to him.

[25]

The
    first set of questions related to a young man named Raucous:

Q.      Someone named Raucous. You know Raucous? Or know of
    Raucous?

A.      Yeah, um, yes, I do. He was my next door neighbour. I
    lived in 82 Pengarth, he lived in I think next door, so it would be 78 or 80.
    Yeah.

Q.      And did you know his name? His real name?

A.      Dale.

Q.      Last name?

A.      No. I dont know his last name. I know him, his first
    name, because I somewhat grew up with him. Like, my mother knows his mother,
    his mother lived right next door. Theres not even a fence separating us,
    right? I could hear when his parents are arguing, he could hear when mine are
    arguing. Yeah.

Q.      And he got shot. I take it you remember when that
    happened.

A.      Im guessing 2010 if youre bringing it up like that.

Q.      Do you remember where you were when you heard that he
    got shot?

A.      No. The reason I remember he got shot is because I know
    it was a little bit after I have returned back from Dubai in 2010, then a few
    weeks later, or a month later, somewhere around those lines, he got shot.

Q.      You remember hearing about it?

A.      Yeah. I remember being in the  it happened in Baget
    Court (ph) I think. I remember being in the court the next day and some mother
    telling me, Oh, somebody got shot here yesterday. I said, Okay.

Q.      Do you remember clearly that day? How you found out?
    That person telling you?

A.      The next day?

Q.      Because thats one that stood out because you knew who
    that person was, right? I mean, thats not one of the

A.      Its different. Its not because  I dont know him
    like that but hes my neighbour, so even though we had age difference, I think
    he is at least four years older than me, right? So hes still my neighbour.
    Hes my next door neighbour for ten years. I would remember if my next door
    neighbour for ten years something happened. Even if me and him werent that
    close. Im actually more closer to his sister than I was to him because his
    sisters around my age group.

Q.      Was he killed or just shot?

A.      From what I think he was just shot.

Q.      Raucous wasnt a close friend, correct?

A.      Raucous was my next door neighbour. I used to see him
    frequently and maybe if I hadnt been there the same location that his shooting
    happened, the next day, I may not have known the next day. I may

Q.      But whenever you found out youre going to remember,
    man, Im going to remember my neighbour got shot.

A.      My ex-neighbour, yeah.

Q.      But youre going to remember?

A.      I found out the next day because the lady was in the
    location it happened.

[26]

The
    second set of questions related to a young man named Ibrahim James:

Q.      Mr. James, Ibrahim James, you know him, right?

A.      Yeah, I do.

Q.      Friend of yours?

A.      Im a  his brothers a close friend of mine. He has a
    big family.

Q.      Cosmo James is his brother?

A.      Yeah, Cosmo James. He has a couple of brothers. A bunch
    of brothers. I know the whole James -

Q.      And

A.      Sorry. I know the whole James family.

Q.      How long have you known Ibrahim?

A.      Well, I knew him since Lawrence Heights. Hes two years
    younger than me but I started seeing him around more and more since our age
    group  our age difference came closer, so Im 22, hes 20 now, were both of
    the same mental state, so I start seeing him more around, say about 2009.

Q.      Do you recall Ibrahim getting shot?

A.      Ah, yeah.

Q.      How did you hear that Ibrahim had been shot?

A.      I was, um, in custody for an unrelated matter than this
    and I was  I heard through either phone call, I called somebody and they said
    that Ibrahim got shot. I seen it on the news. I seen him on the stretcher. And
    it looked just like him and I heard after I was talking on the phone, and said,
    Oh, Ibrahim got shot.

[27]

The
    third set of questions related to a young man named Jessie Israzella:

Q.      Jessie Israzella (ph)?

A.      Yes.
He I believe got shot the
    same day as Ibrahim. It was Jessie Israzella, Ibrahim and another fellow.

Q.      How long have you known Jessie?

A.      Same amount of time from school days. From middle
    school.

Q.      And I take it you heard about his shooting at the same
    time?

A.      The same exact time.

Q.      And thats something pretty memorable to you, isnt it.

A.      Yeah. Well, those guys are, me and him are cool, you
    know? Were the same age group, we went to the same schools, we were in the
    same classes in high school, you know?

[28]

Following
    these questions about how the appellant heard about four previous shootings in
    the neighbourhood, the Crown returned to how the appellant heard about the
    Brooks shooting:

Q.      Where were you when you received the text message or
    BBM that you say you received advising you that Debo had been shot?

A.      I honestly cannot remember exactly. Ah, I believe I was
    on the road somewhere. I know I was in a vehicle. I just cant remember
    exactly, like, I cant remember. No.

Q.      The only thing you can tell us about that - receiving
    that information is that you were somewhere in a car?

A.      Yes.

Q.      Anybody in the car with you?

A.      No.

Q.      Where were you?

A.      I cant remember exactly. It was just a given day to
    me. Like, yeah. It was just a random, given day to me. Thats like me asking
    you where were you March 1, 2003 at 1:00 p.m.? Like, what do you want me to
    tell you?

[29]

During
    a break with the jury out of the courtroom, defence counsel objected again to
    the line of questioning about how the appellant heard about other shootings in
    the neighbourhood:

Your Honour, most of us managed to go through our whole lives
    without getting shot. People that get shot are involved in criminal activity
    and illicit activities and if you keep allowing this to happen, its nothing
    other than a character assassination. My concern is that its already happened.
    This is not right. This is trial by innuendo.

[30]

The
    trial judge asked the Crown if he intended to ask more questions about other
    shootings. The Crown said: There might be one or two more. He then reduced it
    to one because the one that remains is one that I think in terms of the
    recollection is probably the most distinct.

[31]

The
    trial judge ruled against the Crown and closed off this line of questioning:

I have permitted this line of cross-examination in order for
    you to be permitted to test the recollection of Mr. Ahmed as to where he was
    when he heard of shootings of people he knew or knew of to draw the comparison
    to where he was and his lack of recollection with respect to this shooting.
    That has been done at length now and I did permit you to do it. I am concerned
    that to go further would amount to trial by innuendo as a result of this
    knowledge of various people who were shot. In my view, theres more than enough
    in terms of the testing of his recollection of knowledge of  recollection of
    shootings at this point without any further reference to shootings.

[32]

In
    his closing address to the jury, defence counsel addressed the other
    shootings issue twice:

I was a little bit concerned during the course of [Crown
    counsels] cross-examination that there was too much of an emphasis on
    unrelated incidents in Mr. Ahmeds past, particularly his knowledge of
    individuals who may have been involved in shootings, whether he knew of them or
    knew them at all, and I was concerned that Your Honour  that you may get
    caught up in this whole notion that I was trying to urge you to avoid when I
    delivered my opening remarks. This is not trial by innuendo, insinuation or
    suspicion, and its certainly not trial on the basis of what kind of life-style
    Mr. Ahmed leads or who his friends may be. Im sure a lot of people growing up
    in the Lawrence Heights area are exposed to people that people growing up in
    other neighbourhoods are not exposed to. It doesnt mean anything in your
    deliberations here.

As I already mention I had dont mean to be unduly critical of
    [Crown counsel]. There were areas of his cross-examination, perfectly
    legitimate areas to explore with Mr. Ahmed, but in my submission dealt too much
    with people he knows in the community and people who may have been shot and it
    was  came across as an effort to try and leave innuendo, suggestions,
    insinuation, that this is a bad guy and you shouldnt believe anything he says.
    The evidence doesnt bear that out.

[33]

In
    his closing address, the Crown challenged the appellants testimony that he
    could not remember where he was the day Brooks was shot because it was just
    like any other day. However, the Crown did not refer to his cross-examination
    of the appellant about how he heard about the other four neighbourhood
    shootings. He did not use this line of questioning to challenge the appellants
    credibility about when he heard about the shooting of Brooks in his closing.

[34]

The
    trial judge said nothing specific in her jury charge about the questions and answers
    relating to the other four neighbourhood shootings. She did provide the
    standard caution:

You should not speculate about whether Mr. Ahmed is or is not
    the sort of person who would commit this type of offence. You have no evidence
    on this point either way. There is good reason for this. This type of
    consideration should play no part in your decision-making process.

(3)

The verdict

[35]

The
    jury found the appellant guilty of attempted murder and possession of a loaded restricted
    firearm. The trial judge entered the convictions and imposed a global sentence
    of 13 years imprisonment.

[36]

The
    appellant appeals his convictions.

C.

Issues

[37]

The
    appellant raises four issues on the appeal:

(1)

Did the trial judge
    err by permitting the Crown to cross-examine the appellant about his
    recollections of four other shootings in the Lawrence Heights neighbourhood?

(2)

Did the trial judge
    err in permitting Ryan Malcolm to testify about the threat he received not to
    testify?

(3)

Did the trial judge
    err in her response to a jury question requesting Ryan Malcolms video
    statement to police?

(4)

Did the trial judge
    err in her response to a jury question about the meaning of the phrase lack of
    evidence?

D.

Analysis

(1)

The cross-examination of the appellant

[38]

Obviously,
    if the accused in a criminal trial takes the stand and testifies in his or her
    own defence, the cross-examination by the Crown can potentially be a pivotal
    moment.

[39]

In
    approaching and conducting the cross-examination of an accused, the Crown must
    be particularly vigilant about balancing the dual roles of the Crown  strong
    advocate and quasi-judicial role as minister of justice. In a well-known and
    often quoted passage in
Boucher v. The Queen
, [1955] S.C.R. 16 at
    23-24, Rand J. described this dual role:

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 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 the justness of judicial proceedings.

[40]

Broadly
    speaking, there are two categories of potentially improper cross-examination of
    an accused.

[41]

The
    first category involves the way the Crown treats the accused during a
    cross-examination. The Crown cannot harass the accused, engage in sarcasm, seek
    to demean the accused, or punish the accused for invoking his or her
    constitutional rights: see
R. v. R. (A.J.)
(1994), 20 O.R. (3d) 405
    (C.A.), at 412-13. This category of prosecutorial misconduct is not in play in
    this appeal. The appellant does not, and could not, suggest that the Crown
    mistreated the appellant during the cross-examination.

[42]

The
    second category of potentially improper cross-examination of an accused can be
    approached as an admissibility of evidence issue. It involves questions that
    have the potential to elicit answers that are improperly prejudicial to the
    accused. This is the category in play in this appeal. The Crown sought to introduce
    evidence of the appellants recollection of when he heard about previous
    shootings of people known to him.

[43]

In
    this second category, there are important boundaries to the right to
    cross-examine. The most relevant boundaries were succinctly summarized by Cory
    J. in
R. v. Osolin
, [1993] 4 S.C.R. 595 at 665:

Despite its importance the right to cross-examine has never
    been unlimited. It must conform to the basic principle that all evidence must
    be relevant in order to be admissible. In addition the probative value of
    evidence must be weighed against its prejudicial effect.

See also
R. v. Lyttle
, 2004 SCC 5, [2004] 1
    S.C.R. 193, at para. 44.

[44]

I
    turn to the relevance/probative value/prejudice analysis.

[45]

The
    threshold for relevance is not a high one. For the evidence to be relevant, it
    must increase or diminish the probability of the existence of a fact in issue
    there is no minimum probative value for evidence to be relevant:
R. v. Arp
,
    [1998] 3 S.C.R. 339, at para. 38.

[46]

When
    the Crown first started to cross-examine the appellant about his knowledge of
    other shootings (through Trooper), the trial judges immediate reaction was
    what relevance are these questions about Trooper being shot? After hearing brief
    submissions from counsel, she ruled against the Crown, saying I see no reason
    that the shooting of someone named Trooper is relevant to any issue in this
    trial.

[47]

After
    hearing further submissions, the trial judge changed her mind and permitted
    this line of questions, albeit with constraints. On the issue of relevance, she
    said:

So the context, the relevance as I see it, is only to test his
    recollection of where he was and how he heard about other shootings within the
    community of people he knew of. In other words, people he was familiar with.

[48]

Although
    I incline to the view that the trial judges initial instinct that the proposed
    line of questions was irrelevant was correct, in light of the low bar set in
Arp
I am not prepared to say that the trial judge erred in reaching a different
    conclusion in her second ruling. There was a remote (I put it no higher)
    potential connection between the appellants memory about how he heard about
    the shooting of Brooks (an acquaintance in the neighbourhood) and his memory
    about how he heard about the shooting of other people he knew in the
    neighbourhood.

[49]

Turning
    to probative value, the Crowns position was that it sought to elicit the
    evidence about the appellants memory of other neighbourhood shootings in order
    to impugn his credibility with respect to his recall of events relating to the
    Brooks shooting.

[50]

It
    appears that the Crowns argument on the probative value of the evidence was
    based on two assumptions: (1) events of similar significance will create
    memories of similar detail; and (2) if similarly significant events are not
    recalled with similar levels of detail, the witness testimony is not credible.

[51]

I
    have difficulty with these assumptions. The process by which people remember
    events is largely unknown. It varies from person to person. Indeed, it probably
    varies within a single persons experience. I do not think it can be said that,
    as a matter of course, just because an event is significant, a person will
    remember that significant event in the same way or detail as other similar
    significant events.

[52]

In
    addition, it is also difficult to determine what makes an event significant in
    a persons mind, thereby theoretically causing him to remember the event more
    clearly. Thus, although a person might remember different shootings, it is not
    necessarily true that each would hold equal significance in his mind.

[53]

In
    the end, against the backdrop of evidence that Brooks was an acquaintance of
    the appellant and the appellants testimony about how and when he heard about
    the shooting of Brooks, there was potentially some probative value in
    comparison with the appellants memory of other shootings in the neighbourhood.
    However, in light of the factors discussed above, I would describe the
    potential probative value as very low.

[54]

I
    turn to the question of prejudice. There are two types of potential prejudice,
    reasoning prejudice and moral prejudice: see
R. v. Handy
, 2002 SCC 56,
    [2002] 2 S.C.R. 908.

[55]

Prejudice
    can arise where evidence creates a distracting side issue. This can create a
    risk of reasoning prejudice.  In
R. v. D. (L.E.)
, [1989] 2 S.C.R. 111
    at 128, Sopinka J. noted that where [t]he jury members attention is deflected
    form the main purpose of their deliberations, which is the transaction
    charged, there is a danger that they will render a verdict that is based on
    prejudice. In
D. (L.E.)
, similar fact evidence was in issue; however,
    the concern applies in the context of bad character evidence as well. When a
    jurys attention is on the bad character evidence, it is deflected away from
    its main purpose, the transaction charged.

[56]

In
    the case of a cross-examination of an accused, as here, the risk of prejudice
    is heightened. It is for this reason that the Crown is not permitted to attack
    the character of the accused. There is a danger that if the jury hears about
    the bad character of the accused, they will not only use that evidence to
    assess the accuseds credibility, but will go further and find that the accused
    is a bad person who is more likely to have done the bad thing he is accused of
    doing. Allowing the jury to draw that impermissible inference would constitute
    moral prejudice.

[57]

Both
    types of prejudice are potentially engaged here.

[58]

In
R. v. Ejiofor
(2002), 5 C.R. (6th) 197 (Ont. C.A.), this court
    considered a situation similar to the one in this appeal. The accused was
    convicted of importing cocaine and possession for the purpose of trafficking.
    During the trial, the Crown cross-examined the accused about two of his friends
    who were drug importers and dealers. The appeal was allowed. Doherty J.A. said,
    at para. 11:

There was a real risk of significant prejudice to the appellant
    flowing from the improper questions put by Crown counsel.  A firm
    instruction from the trial judge was required.  He should have told the
    jury that it should never have heard the evidence concerning the convictions of
    Mr. Okeke and Mr. Azukakwu, and he should have specifically told them that they
    must guard against drawing any adverse inference against the appellant because
    of his association with these two persons.

[59]

The
    evidence in this appeal may not be as directly prejudicial as in
Ejiofor
where the accuseds associates were criminals. Here, the appellants friends
    and acquaintances were shooting victims in the appellants neighbourhood.
    However, in my view there is a common sense reality here, a reality well-stated
    in defence counsels argument against permitting the impugned line of
    cross-examination:

And to engage in that character assassination, asking about the
    people he knows who have been shot is nothing other than a way to insinuate to
    the jury that Mr. Ahmed is involved in a violent subculture and criminal
    underworld. That is the only impression that could be left.

[60]

In
    my view, the prejudice caused to the appellant by the cross-examination related
    to his familiarity with neighbourhood shootings was very high. I say this for
    four reasons.

[61]

First,
    I agree with defence counsel, with the trial judges initial ruling, and with
    her final ruling. There was a real risk that the Crowns proposed line of
    questioning would cause the trial to unravel into one of innuendo and
    insinuation.

[62]

Second,
    Crown counsel overcooked his cross-examination in this domain. The appellant
    testified. His examination-in-chief lasted 24 minutes (17 pages of transcript).
    It was very simple. He denied being at the Juice Bar the evening Brooks was
    shot.

[63]

The
    cross-examination of the appellant was conducted over two days and lasted more
    than two and a half hours (103 pages of transcript). A substantial amount of
    this cross-examination dealt with the four neighbourhood shootings and the
    appellants knowledge of them. These four shootings were a pervasive black
    cloud that stalled over the trial for a long period of time.

[64]

Third,
    compliance with the trial judges admonition in her second ruling that Crown
    counsel could not explore the appellants relationship with the shooting
    victims proved impossible. In order for the appellant to answer questions about
    his knowledge of the shootings, it was only natural that he would explain, sometimes
    in detail, his relationship to the four shooting victims. Indeed, Crown counsel
    asked about the appellants relationship to the shooting victims more than
    once. It was not long into the cross-examination before the jury learned that
    the appellant was, in order, an acquaintance, a next door neighbour, a
    long-time friend, and another long-time friend of the four victims.

[65]

Fourth,
    the prejudicial effect of the Crowns questions increased with each additional
    neighbourhood shooting raised. The appellant was asked about where he was and
    how he learned about the shootings of four different people with whom he was acquainted.
    The subject matter and duration of these questions increased the risk that the
    jurys attention would be deflected from the principal issue at hand  whether
    the accuseds testimony was credible in the face of the Brooks/Malcolm/Lindsay
    testimony. The appellants close (three people) or occasional (one person)
    association with people who had been shot in his neighbourhood invited the impermissible
    inference that the appellant was associated with people engaged in crime. And
    that had the potential to lead to the impermissible inference that the
    appellant was also engaged in crime and was, therefore, more likely to commit
    the crime with which he had been charged.

[66]

I
    make a final point. The cross-examination of the appellant about his knowledge
    of four previous neighbourhood shootings was unnecessary, in three respects.

[67]

First,
    as the trial judge stated in her initial ruling prohibiting this line of
    questioning:

If you wish to assist him in recalling a time-frame, I am
    confident that there are many other events that you can refer to other than the
    shooting of Trooper.

[68]

In
    fact, Crown counsel cross-examined the appellant, albeit briefly, about his recollection
    of his first job after finishing high school. He even asked the appellant, is
    that a distinct event in your memory? You recall it clearly? Crown counsel
    also asked the appellant questions about his memory of events at a bar the
    night before the shooting when a police raid shut the place down. In short,
    there were many other significant events, besides four neighbourhood shootings,
    available to test the appellants memory.

[69]

Second,
    in his closing address the Crown did not refer to his cross-examination of the
    appellant about how he heard about the other four neighbourhood shootings.

[70]

Third,
    and more broadly, the Crown case against the appellant was very strong. The
    shooting victim survived and identified the appellant as the shooter. The
    victims brother, an eyewitness, identified the appellant as the shooter. The
    victims girlfriend testified that the appellant apologized to her for shooting
    the victim. In short, the Crown had put in a good, and fair, case. Against this
    backdrop, a lengthy and unfair cross-examination of the appellant was not only
    wrong; it was unnecessary.

[71]

For
    these reasons, I conclude that the prejudice occasioned by the fact and manner
    of the Crowns cross-examination of the appellant outweighed its probative
    value. I would allow the appeal on this ground.

(2)

The other grounds of appeal

[72]

In
    light of the result reached on the first ground of appeal, it is not, strictly
    speaking, necessary to address the other three grounds of appeal and I do not
    propose to do so in any detail. However, for the sake of completeness, I record
    that I do not agree with the appellants submissions on those three grounds of
    appeal.

[73]

On
    the issue of Ryan Malcolms testimony about receiving a threat about being a
    witness at the trial, the trial charge instructed the jury:

I am now going to move to another area. There was some evidence
    that you heard that can only be used for a limited purpose. The evidence that
    Ryan Malcolm received a message from his friend and that the friend said came
    from Bubbs, and that he perceived as a threat, can only be used to assess the
    state of mind of Mr. Malcolm and to test the credibility of Mr. Malcolms
    testimony. This evidence cannot be used in any way against Mr. Ahmed.

I agree with this instruction.

[74]

I
    make one observation on the jury question issue. The jury asked this question:
    Please provide the Ryan Malcolm police statement video which we watched in
    court. The trial judge declined: I cannot provide to you the video of the
    police statement because it is not an exhibit in the trial. She did offer to
    provide the jury a readback of Malcolms evidence. The jury did not take up
    this offer. In light of this scenario, if at the re-trial Malcolm is again a
    witness and is cross-examined about his police video statement, counsel should
    consider whether to request that it be entered into evidence and marked as an
    exhibit.

(3)

Proviso

[75]

The
    Crown contends in its factum that the proviso in s. 686(1)(b)(iii) of the
Criminal
    Code
should apply: There is no reasonable possibility that the verdict
    would have been different if the alleged errors, or any combination of them,
    have been made out. There has been no substantial wrong or miscarriage of
    justice.

[76]

I
    disagree. In
R. (A.J.)
, Doherty J.A. said, at 417:

The improper and prejudicial cross-examination by Crown
    counsel, however, overtakes the effect of the non-direction. The
    cross-examination destroyed the necessary appearance of fairness in the trial
    and resulted in a miscarriage of justice. The strength of the Crowns case
    becomes irrelevant in determining the appropriate disposition and s. 686(1)(
b
)(iii)
    has no application. The miscarriage of justice lies in the conduct of the
    proceedings and not in the verdict arrived at by the jury. [Citations omitted.]

[77]

Similar
    reasoning and a similar result are required in this appeal. An accused has the
    right to a fair trial. The appellant testified. He denied the offence and that
    he was at the Juice Bar that evening. When a cross-examination of an accused
    creates unfair prejudice, as in this case, the accused is deprived of that
    right. An error that deprives the accused of the right to a fair trial
    constitutes a miscarriage of justice. Having found that the cross-examination
    created unfair prejudice, it would be inconsistent to find that there was no
    miscarriage of justice:
Fanjoy v. The Queen
, [1985] 2 S.C.R. 233 at 240;
R. v. C.(W.)
(1990), 54 C.C.C. (3d) 37 at 39 (Ont. C.A.).

[78]

Applying
    the proviso in this case would undermine the administration of justice by
    suggesting that a conviction should be upheld notwithstanding an error that
    significantly impacted the fairness of the trial. The Crowns submission that
    the verdict would have been the same because of the strength of the case
    against the appellant ignores the possibility that the accuseds evidence, without
    the unfair cross-examination, could have raised a reasonable doubt. It
    therefore misses the point. The strength of the Crowns case is irrelevant when
    a prejudicial cross-examination of the accused undermines the fairness of the
    trial.

E.	DISPOSITION

[79]	I would allow the appeal and order a new trial.

Released: November 6, 2015 (K.F.)

J.C. MacPherson J.A.

I agree K. Feldman J.A.

I agree B.W. Miller J.A.