COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Duran, 2013
    ONCA 343

DATE: 20130527

DOCKET: C54468

Laskin, Juriansz and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ricky Duran

Appellant

Michael W. Lacy and Anida Chiodo, for the appellant

Amy Alyea, for the respondent

Heard: November 2, 2012

On appeal from the conviction entered on February 8, 2011
    and the sentence imposed on May 17, 2011 by Justice Janet M. Wilson of the Superior
    Court of Justice, sitting with a jury.

Laskin J.A.:

[1]

After a jury trial, the appellant Ricky Duran was convicted of sexual
    interference and sexual assault.
[1]
He was sentenced to one year in custody, followed by three years probation.
    He appeals his convictions.  The overriding question on his appeal is whether
    he received a fair trial.  I have concluded that he did not receive a fair
    trial and would, therefore, set aside the convictions and order a new trial.

A.

overview

[2]

The incident that gave rise to the charges against the appellant
    occurred on August 4, 2008.  The complainant and the appellant had met at least
    once before.

[3]

On August 4, the complainant walked past the appellants apartment,
    where he was sitting on the porch with some friends.  They struck up a
    conversation.  The appellant invited her into the house.  They sat in the
    backyard, drank beer and talked for a while.  Eventually, they went into the
    bedroom and had sex, including sexual intercourse.  At the time of the incident,
    the appellant was 27 years old; the complainant was 15 years and 4 months old.

[4]

There were two main issues at trial: the first issue was whether the
    appellant honestly believed that the complainant was over 16 and had taken all
    reasonable steps to ascertain her age.  By convicting the appellant of sexual
    interference, the jury rejected his defence of mistaken belief in the
    complainants age.  The second issue was whether the complainant consented to
    all of the sexual activity.  The appellant said that she did consent; the
    complainant said that she was intoxicated and did not consent to sexual
    intercourse.

[5]

The appellant raises numerous grounds of appeal.  I need only deal with
    three of them.  The appellant submits:

(1)

The trial judge improperly curtailed defence counsels cross-examination
    of the complainant on the issue of whether she had previously lied about her
    age;

(2)

The trial judge erred by admitting prejudicial hearsay evidence about an
    incident that occurred after the incident giving rise to the charges.  The
    trial judges instructions did not cure the prejudice, and the prejudice was
    magnified by the Crowns reliance on the evidence during his closing
    submissions; and

(3)

The trial judge did not adequately instruct the jury on the defence of
    mistake of age.

[6]

I agree with these submissions.  Cumulatively these errors deprived the
    appellant of a fair trial.

B.

the charges

[7]

The appellant was charged with sexual interference and sexual assault.
    Sexual interference is the touching for a sexual purpose of any part of the
    body of a person under the age of 16.  Sexual assault is the intentional
    application of force without consent in circumstances of a sexual nature.

[8]

For both offences, the complainants consent is not a defence if the
    complainant is under the age of 16.  However, s. 150.1(4) of the
Criminal
    Code
provides an accused with a defence to these charges if the accused
    believed that the complainant was 16 years of age or more at the time the
    offence was alleged to have been committed and took all reasonable steps to
    ascertain the age of the complainant.  Whether the appellant took all
    reasonable steps was thus a pivotal issue in this trial.

C.

the evidence

[9]

Only two witnesses testified at the trial: the complainant and the
    appellant.  They gave very different accounts of what occurred.  Especially
    pertinent to this appeal, they gave contradictory testimony about whether the
    complainant disclosed her age to the appellant.  The credibility of their
    evidence was, therefore, central to the jurys deliberation.  I will summarize
    their accounts in order to put the appellants submissions in a proper
    context.

(a)

How the complainant and the appellant met

(1)

The complainants version

[10]

The
    complainant said that she first met the appellant in July 2008.  At the time,
    she was 15 years old, in grade nine, and living in a nearby group home.  She
    walked past the house where the appellant lived on Dupont Street near the
    University of Toronto.  She saw him sitting on the front porch.  She stopped,
    and they chatted briefly.

[11]

Over
    the next three weeks, while walking past the house, the complainant saw the appellant
    five or six times.  They engaged in small talk.  According to the complainant,
    they did not discuss her age.

(2)

The appellants version

[12]

The
    appellant testified that in July 2008 he was renting a room in the basement of
    a rooming house on Dupont Street near the University.  One afternoon in late
    July, the complainant walked by.  The appellant said hi.  The complainant
    stopped, and they had a brief conversation.

[13]

The
    complainant said that she was a student a George Brown College, that she lived
    in a sorority rooming house around the corner, and that she was 19 years old.
    They talked about what she did in her spare time.  The appellant testified that
    the complainant presented herself as a 19-year-old college student.

[14]

According
    to the appellant, this was the only time he spoke to the complainant before
    August 4, the date of the incident.

(b)

The incident on August 4, 2008

(1)

The complainants version

[15]

The
    complainant testified that she was walking by the Dupont Street house at about
    2:30 p.m.  The appellant was sitting on the front porch and noticed her walking
    by.  They struck up a conversation, and he invited her inside.  The appellant
    and the complainant sat on the back porch for 30 to 60 minutes.  The appellant
    offered her a beer.  She said that she drank four beers; the appellant had only
    one.

[16]

According
    to the complainant, the appellant asked her where she lived, where she went to
    school, and what she did in her spare time.  She gave the appellant her name
    and some information about her background.  She said she was in school but did
    not specify where, and when he asked what she was studying, she said, I dont
    know.

[17]

The
    appellant also asked her about her age.  The complainant said that she replied,
    Its rude to ask a lady how old she is.  The complainant testified this was
    to keep her age from the appellant.  The complainant agreed that the appellant
    was polite and respectful to her.

[18]

The
    complainant testified, however, that after drinking four beers she began to
    feel dizzy.  The appellant asked her if she wanted to go inside and lie down in
    bed.  She said yes.

[19]

The
    appellant started kissing the complainant.  He then tried to take her clothes
    off.  She told him no, but he would not stop or listen to her.  So she stopped
    arguing.  Instead, she just kind of gave up.

[20]

According
    to the complainant, they lay in bed naked for two hours.  They engaged both in
    oral sex and sexual intercourse.  In response to the question whether she
    consented to the sexual activity, the complainant answered, I would say I had
    consensual sex for two, for two hours under the influence

[21]

When
    the sex was over, the complainant got dressed and went outside to have a
    cigarette and clear her mind.  She and the appellant smoked some marijuana
    together.  Then she left.

(2)

The appellants version

[22]

By
    August 2008, the appellant was no longer living on Dupont Street.  However, he
    returned there over the civic holiday weekend to hang out with his old
    roommates.  On the afternoon of August 4, he was on the front porch, drinking
    beer and smoking cigarettes.  The complainant walked by and waived to him.
    When he realized who she was, he invited her up to the porch.  They spoke for a
    few minutes and then went to the back patio.

[23]

The
    appellant offered her a beer and cigarettes.  She accepted the beer but pulled
    out one of her own cigarettes.  They sat in the back, talking and smoking
    cigarettes for about 20 to 40 minutes.  They spoke casually about different
    things: music, personal interests, parties, friends, and what they did on
    weekends.  They exchanged anecdotes and talked about relationships.  The
    complainant drank only one beer and took her time doing so.  She did not seem
    intoxicated or dizzy.

[24]

Eventually,
    the appellant and the complainant started kissing.  The appellant testified
    that the complainant seemed to enjoy the intimacy.  The appellant took the
    complainant to one of the bedrooms and began to remove her clothes.  She did
    not show any signs of resistance.  Instead, she let him continue.  He went to
    get a condom.  He then asked the complainant to perform oral sex, and she did.
    After more fondling and kissing, they had sexual intercourse, which was
    unprotected, as the appellant forgot to use his condom.  The intercourse lasted
    for about 20 minutes.  The appellant maintained that it was consensual, as he
    had no contrary indication from the complainant.

[25]

After
    their sexual activity, the complainant and the appellant talked briefly in bed
    and then got dressed.  After 10 minutes, the complainant left.  The appellant
    never saw her again.

D.

discussion

[26]

As
    I said in the overview, three aspects of the trial deprived the appellant of a
    fair trial: defence counsels cross-examination was improperly curtailed;
    prejudicial hearsay evidence was admitted; and the instructions on the mistake
    of age defence were inadequate.

I.

Defence counsels cross-examination was improperly curtailed

[27]

The
    complainant gave false testimony about the extent to which she misrepresented
    her age.  Defence counsel sought to cross-examine on this false testimony but
    the trial judge curtailed him from doing so.

[28]

The
    context in which this issue arose is as follows.  At the preliminary inquiry
    and again in her examination-in-chief, the complainant testified that the only
    time she had lied about her age and represented to others that she was over 16
    was when she bought cigarettes.  This testimony was a lie.  Since 2007, the
    complainant had created online social networking accounts on MySpace where
    she presented herself as a 19 or 20 year old who had completed four years of
    high school.  Defence counsel sought to cross-examine the complainant on her
    false testimony.  He began as follows:

Q.      So Im
    going to ask you to look at your pre-lim testimony again at page 50, lines 14
    to 20.  Are you there with me?

A.      Page 50?

Q.      Page five zero.

A.      Yeah.

Q.      At line 14, were you asked the question:

        All right,
    do you sometimes pretend to be older than you are?

        Answer: No.

        Question: Never?

        Answer: No.

        Question: Are you sure?

        Answer: Only when I go to buy cigarettes.

        Question: Or when you buy alcohol?

        Answer: I dont buy alcohol.

Q.      So, Ms. R.,
    14 days after you logged on to MySpace page where you were lying about your
    age, under oath you testified that you never lie about your age.  Isnt that
    the case?

A.      It appears to be.

Defence counsel then asked:

Q.      Okay. And
    here in court I gave you another opportunity to tell the truth, and instead you
    lied again.

[29]

The
    trial judge did not allow the complainant to answer this question.  Instead,
    she abruptly curtailed the cross-examination and sent the jury away for the
    rest of the day.  She told defence counsel that because the appellant did not
    know about the MySpace account, cross-examination in this area was very, very
    tangential, only of marginal relevance, and pursuing it was unfair to the
    complainant.

[30]

The
    next day, defence counsel returned to the subject of the complainants MySpace
    account and sought to challenge her explanation for why she had falsely
    represented her age.  She had said that she did so because she believed that
    she had to be of age to set up an account.  Defence counsel, however, told
    the court MySpaces policy allowed persons as young as 13 or 14 to set up an
    account.  He asked the trial judge for permission to cross-examine the
    complainant on the policy in order to challenge her explanation.  The trial
    judge only permitted defence counsel to ask the complainant whether she was
    aware of the terms of MySpaces policy.  The complainant replied: It might
    have just been, like, something my mom put on the computer.

[31]

In
    my opinion, the trial judges intervention to curtail defence counsels
    cross-examination  especially on the complainants lie about how often she had
    misrepresented her age  was improper and unfair to the appellant.  I would
    make four points in support of my opinion.

[32]

First,
    the trial judges concern that the cross-examination was very, very
    tangential because the appellant did not know about the complainants MySpace
    account overlooks the valid purpose of the cross-examination:  to challenge the
    complainants credibility and specifically to show that she had misrepresented
    her age on other occasions, thus bolstering the appellants evidence that she
    told him she was 19.  The complainants credibility and whether she had
    represented herself as over 16 were crucial issues at trial.  Far from being
    tangential, the cross-examination was directly relevant to these issues.

[33]

Second,
    although a trial judge has a responsibility to protect a witness from
    harassing, repetitive or irrelevant cross-examination, defence counsels
    cross-examination of the complainant was none of these things.  The question
    itself that the trial judge stopped the complainant from answering  and here
    in court I gave you another opportunity to tell the truth, and instead you lied
    again  was an entirely proper question.  It seems to me a trial judge should
    be very cautious about limiting cross-examination that goes directly to a
    witness credibility.

[34]

Third,
    although defence counsel did obtain the complainants acknowledgement that she
    had lied about her age on her MySpace account, the trial judge prevented him
    from obtaining the complainants explicit admission that she had perjured
    herself in her testimony at the preliminary inquiry and in her
    examination-in-chief at trial.  A witness lie under oath on an important
    matter is a powerful weapon in a cross-examiners arsenal.  Defence counsel was
    entitled to bring out the complainants lie and emphasize it for the jury.  He
    was prevented from doing so.

[35]

Fourth,
    the trial judges instructions to the jury on the complainants MySpace account
    exacerbated the unfairness to the appellant.  The trial judge said:

Defence counsel introduced as exhibits documents posted by Ms.
    R. in the My Space site.  This site allows friends to communicate.

Clearly, Mr. D. did not review the information on this site as
    part of the reasonable inquiry into Ms. R.s age.  The document was discovered
    after the fact.  Therefore, this document is not directly relevant to the
    question of whether Mr. D. made all reasonable steps to ascertain Ms. R.s age.

This documentation is relevant to whether Ms. R., in other
    contexts, misrepresented her age as more than 15, as her age on these posting
    is 19 and 20.  There is also a photograph of Ms. R. taken on October 13, 2008,
    some two-plus months after this incident, that is posted and is filed as
    Exhibit 3B.

Ms. R. explained that she used this site to communicate with
    her friends, that only her friends had access to her profile, but that to
    participate in the site you had to be at least 18 years of age and finished
    highschool.  Therefore she posted the information that you see.  In
    cross-examination, she was challenged about the age restriction, but testified
    that when she tried to join she could not log in showing her real age.

[36]

That
    the appellant did not know about the complainants MySpace account until after
    the fact was irrelevant.  Defence counsel did not cross-examine on the account
    to show the appellants efforts to ascertain the complainants age.  He
    cross-examined on the account to attack the complainants credibility and to
    show that she had perjured herself.  Indeed, the trial judge ought to have told
    the jury that the complainants lie about when she misrepresented her age was
    very relevant to her credibility.

II.

Prejudicial hearsay evidence was admitted

[37]

During
    his cross-examination of the appellant, Crown counsel elicited hearsay
    evidence, which was inadmissible and prejudicial.  The Crown then relied on
    this evidence in his closing address to the jury.  The trial judge gave both
    mid-trial and final instructions to the jury about the limited way they could
    use this evidence but neither instruction alleviated the prejudice.

[38]

The
    evidence concerned an incident that took place several weeks
after
the
    incident giving rise to the charges.  Crown counsel asked the appellant whether
    he knew about the allegations against him before he turned himself in to the
    police.  Defence counsel objected to the relevance of the question, but the
    trial judge ruled that it was a fair question.  The appellant answered:

A.

Okay.  So at the end of the month, I go back looking for some mail.  I
    say hi to Piero.  Were on the porch just talking, and then these two girls
    come by and they start screaming and yelling about shes only fifteen.  They
    were just yelling and screaming for about a minute: she was only fifteen.  You
    drugged her.  You raped her

Q.      What did they say?

A.      You raped
    her. You drugged her.  Shes only fifteen.  Shes only fifteen.  Thats all I
    remember.

[39]

The
    trial judge then gave the jury mid-trial instructions on this evidence, which
    she repeated during her final instructions.  She told the jury that the
    evidence of these two girls could not be considered for the truth of its
    contents but that it was relevant to the chronology and the appellants state
    of mind at the time:

The second caution is you heard some evidence late in the day
    yesterday from Mr. D. about an incident that took place at 245 Dupont in late
    August, 2008, or early September, when two girls came to the house and were
    yelling at Mr. D. and making accusations. This evidence is relevant and may be
    considered by you, but only for a limited purpose.  You may not consider the
    evidence of what the girls were shouting for the truth of what they were
    saying.  You may consider the evidence as being relevant to the chronology of
    how this story spun out, number one, and number two, its relevant to Mr. D.s
    state of mind because as of that date he knew there was a problem with the
    issue of [Ms. R.]s age.  But the statement made by the two girls, who are not
    witnesses, is not admissible for the truth of what they may have been shouting
    at Mr. D., and this evidence may not be considered by you to bolster the
    credibility of Ms. R. I repeat.  The only relevance is, as of that date its
    part of the chronology, and its also relevant to what Mr. D. knew, and it was
    clear that as of that date he knew there was an issue with respect to [Ms. R.]s
    age.  Okay? So on that basis, we can proceed,

[40]

Respectfully,
    this evidence was not relevant for any purpose.  The appellants state of mind
    weeks after the August 4, 2008 incident had no bearing whatsoever on his belief
    or his efforts to ascertain the complainants age before he engaged in sexual
    activity with her.

[41]

Moreover,
    the evidence was obviously hearsay.  The two girls were not called as
    witnesses; they were not even identified by name.  Their evidence was not
    admissible on any basis.

[42]

Most
    important, the evidence was highly prejudicial to the appellant, a prejudice
    made worse by the inflammatory nature of the actual words  shes only fifteen.
    You drugged her.  You raped her.  The trial judges instructions did not
    entirely alleviate the prejudice.  Despite these instructions, there remained a
    real risk that the jury would use this evidence to find that the appellant was
    not credible.

[43]

Finally,
    the Crown magnified the prejudice by relying on the evidence to attack the
    appellants credibility in his closing address.  He said:

Also, when you consider his credibility, consider that at one
    point he talked about, on the first day when I got to ask him questions, I
    didnt know anything about this until the police officer called me, and the
    next day I turned myself in. The on the second day, Mr. D. on his own brings up
    the fact that these girls had come to the house about a week or so before and
    were shouting at him, and he understood they were shouting at him because of
    this incident with [Ms. R].  He didnt tell you that through his lawyer
    in-chief. It only came up in cross-examination on the first day, and then it
    was on the second day that he went back and brought that out.  Well, which one
    is it? What does he want you to believe?

[44]

The
    admission of this prejudicial hearsay evidence and the Crowns use of it in
    closing were most unfair to the appellant, an unfairness that was not cured by
    the trial judges instructions.

III.      The instructions on the mistake of age defence were
    inadequate

[45]

The
    appellant defended the charges against him on the basis that he mistakenly
    believed the complainant was over 16 years old and he took all reasonable steps
    to ascertain her age.  The mistake of age defence is set out in s. 150.1(4) of
    the
Criminal Code
:

It is not a defence to a charge
    under section 151 or 152, subsection 160(3) or 173(2), or section 271, 272 or
    273 that the accused believed that the complainant was 16 years of age or more
    at the time the offence is alleged to have been committed unless the accused took
    all reasonable steps to ascertain the age of the complainant.

[46]

The appellant gave evidence to support his defence.  He claimed that
    the complainant told him she was 19 years old, went to George Brown College,
    and live in a nearby sorority house.  He testified that he had no reason to
    doubt her age or the information she gave him.  George Brown was near the
    rooming house on Dupont Street where he was staying and there were numerous
    sorority houses in the
neighbourhood
.  The complainants
    appearance, her interests, the way she dressed, and the way she spoke all led
    him to believe she was 19 years old.  Because there was evidence to support the
    appellants defence and because the question whether he took all reasonable
    steps to ascertain the complainants age was the pivotal issue at trial, it was
    especially important that the trial judge adequately instruct the jury on this
    defence.  I am not persuaded that she did so.

[47]

In fairness, the trial judge did review extensively the evidence
    supporting the appellants defence, as well as the contradictory evidence.  For
    example, she properly told the jury that according to the appellants evidence,
    the complainant told him she was 19; but according to the complainants
    evidence, she never disclosed her age to the appellant.

[48]

However, adequate instructions require more than a review of the
    evidence.  Numerous decisions of the Supreme Court of Canada and provincial
    appellate courts have discussed the elements of adequate jury instructions.
    Doherty J.A. reviewed several of these cases in
R. v. MacKinnon
(1999), 43 O.R. (3d) 378 (C.A.).  At pp. 385-6, he noted that no
    particular approach or formula is required, but that whatever approach is used,
    adequate instructions should contain four elements:

·

The factual issues to be resolved;

·

The law to be applied to those issues and the
    evidence;

·

The positions of the parties; and

·

The evidence relevant to the positions of the
    parties on the issues.

[49]

In the present case, I am not satisfied that the trial judge adequately
    explained the legal principles to be applied to the mistake of age defence and
    how the evidence related to these principles. As a consequence, her
    instructions may have left the jury with the wrong impression of what was
    required to make out the defence.

[50]

When the trial judge came to the part of her charge dealing with s.
    150.1(4) of the
Criminal Code
, she did no more
    than read out the words of the section and tell the jury that the test was
    objective.  In my opinion, more was required for two reasons: first, to assist
    the jury in assessing the defence and second, to avoid misleading the jury
    about the steps the appellant had to take.

[51]

The trial judge should first have told the jury it was the appellants
    position that he honestly believed the complainant was over 16 years of age;
    and the trial judge should have reviewed the evidence for and against that
    position: see
R. v. Wasser
, 2010 ONCA 429, at
    para. 13.  But, as the appellants subjective belief was not determinative, the
    trial judge should then have instructed the jury on whether the accuseds
    belief was objectively reasonable and specifically on whether the accused took
    all reasonable steps to ascertain the complainants age.

[52]

What constitutes all reasonable steps depends on the context and the
    circumstances.  There is no automatic checklist of considerations applicable to
    every case.  Indeed, in some cases, an accuseds visual observation of the
    complainant may be enough to constitute reasonable steps.

[53]

In this case, the trial judge should have instructed the jury to
    determine whether what the appellant knew and observed about the complainant
    were all the steps a reasonable person needed to take or whether a reasonable person
    ought to have made further inquiries.  In making that determination, the jury
    should have been told to take account of the following considerations and the
    evidence on them: the accuseds observation of the complainant; the
    complainants appearance and behaviour; the information the complainant told
    the appellant about herself, including any information about her age; and the
    age differential between the appellant and the complainant.

[54]

These suggested instructions find support in
CRIMJI:
    Canadian Criminal Jury Instructions
, Gerry Ferguson, Michael
    Dambrot, and Elizabeth Bennett, 4th ed., looseleaf, (Vancouver: The Continuing
    Legal Education Society of British Columbia, 2005), vol. 2, 2011 update, at section
    6.67A, paras. 23-24,
[2]
and in the reasons of the British Columbia Court of Appeal in
R. v.
    L.T.P.
(1997), 113 C.C.C. (3d) 42, where Finch J.A. said, at
    para. 20:

In considering whether the Crown has proven
    beyond a reasonable doubt that the accused has not taken all reasonable steps
    to ascertain the complainant's age, the Court must ask what steps would have
    been reasonable for the accused to take in the circumstances.  As
    suggested in
R. v. Hayes
,
supra
, sometimes a visual observation alone may suffice.  Whether further
    steps would be reasonable would depend upon the apparent indicia of the
    complainant's age, and the accuseds knowledge of same, including: the accuseds
    knowledge of the complainants physical appearance and behaviour; the ages and appearance
    of others in whose company the complainant is found; the activities engaged in
    either by the complainant individually, or as part of a group; and the times,
    places, and other circumstances in which the complainant and her conduct are
    observed by the accused.  The Court should ask whether, looking at those
    indicia, a reasonable person would believe that the complainant was fourteen
    years of age or more without further inquiry, and if not, what further steps a
    reasonable person would take in the circumstances to ascertain her age.  Evidence
    as to the accuseds subjective state of mind is relevant but not conclusive
    because, as pointed out in
R. v. Hayes
at p.11, [a]n
    accused may believe that he or she has taken all reasonable steps only to find
    that the trial judge or jury may find differently.

[55]

Instructions along the lines proposed in
CRIMJI
and
LTP
would not only have assisted the
    jury in assessing the pivotal issue in this case, they would have avoided
    potentially misleading the jury.  The
CRIMJI
and
LTP
instructions focus the jurys deliberations on the question whether
    the steps the appellant had already taken  what he had observed and what he
    knew  were sufficient without further inquiry.  Simply reading out the words
    in s. 150.1(4), without more, implicitly invites the jury to bypass this
    question and instead to focus on whether the appellant was required to take
    further steps.

[56]

For these reason the trial judges instructions on the mistake of age
    defence were not adequate.

E.

conclusion

[57]

The trial judge erred in curtailing defence counsels cross-examination
    of the complainant, in admitting prejudicial hearsay evidence, and in her
    instructions on the mistake of age defence.  These errors were not harmless.
    They may well have affected the jurys assessment of the credibility of the
    complainant and the appellant.  This is therefore not a case to apply the curative
    proviso as it cannot be said that despite the errors no substantial wrong or
    miscarriage of justice has occurred.

[58]

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

Released: May 27, 2013                                         John
    Laskin J.A.

JL                                                                     I
    agree R.G. Juriansz J.A.

I
    agree M. Tulloch J.A.

APPENDIX  A

23.   At this point, you may be wondering what constitutes
    all reasonable steps. There is no checklist of reasonable steps; what is
    required will depend on what is reasonable in the particular circumstances.
    Generally, as the difference in age between the accused and complainant
    increases, the accused is required to take more steps to ascertain the age of
    the complainant. In some situations, observations of _________________ [THE
    COMPLAINANT] by ____________ [THE ACCUSED] may be sufficient to constitute
    reasonable steps.  Such observations may include ___________s [THE
    COMPLAINANTS] appearance and behaviour and the age of the people (he/she)
    normally associates with.  You should also consider any personal knowledge
    _____________ [THE ACCUSED] had of ___________ [THE COMPLAINANT], the nature of
    the relationship between ___________ [THE ACCUSED] and _________ [THE
    COMPLAINANT], and the environment where the incident took place.

24.   However,
    in some circumstances, observations may be insufficient and you may conclude
    that it was reasonable for ____________ [THE ACCUSED] to ask ____________ [THE
    COMPLAINANT] or someone who knew ________________ [THE COMPLAINANT] (his/her)
    age.  However, even if _____________ [THE COMPLAINANT] told ___________ [THE
    ACCUSED] (he/she) was 16 years of age or more, ___________ [THE ACCUSED] may
    still have needed to make further inquiries, depending on the circumstances.

[1]
The conviction for sexual assault was conditionally stayed.

[2]
See Appendix A.
The
CRIMJI
model charge was not given to the trial judge.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Frimpong, 2013 ONCA
    243

DATE: 20130418

DOCKET: C53147

Doherty, MacPherson and Cronk JJ.A.

Her Majesty the Queen

Respondent

and

Kwaku Frimpong

Applicant (Appellant)

Frank Addario and Megan Savard, for the applicant (appellant)

Gillian Roberts, for the respondent

Heard:  April 8, 2013

On appeal from the convictions entered by a jury presided
    over by Justice Roydon Kealey of the Superior Court of Justice, dated November
    13, 2009.

By the Court:

I

[1]

The appellant was convicted of two counts of first degree murder.  He
    appeals his convictions on three grounds, all relating to the eyewitness
    evidence of Ziad Chammas.  The appellant submits that:

·

the trial judge should have excluded Chammas eyewitness
    testimony because its prejudicial effect outweighed its probative value;

·

the trial judge erred in excluding expert evidence offered by the
    defence to demonstrate certain frailties in Chammas eyewitness evidence;

·

the trial judges instructions on Chammas eyewitness evidence were
    inadequate.

II

[2]

The Crown alleged that the appellant and his very close friend, Phillip
    Salmon, went to a motel room under the pretense of selling drugs to Ziad Ahmad.
    In fact, they planned to rob him.  They knew that Mr. Ahmad had a great deal of
    cash.  Mr. Ahmad and his friend, Ziad Chammas, were in the motel room.

[3]

Shortly after the appellant and Salmon arrived, Salmon attacked Ahmad.
    The appellant stood near the doorway, pointing a gun at Mr. Ahmad and Mr.
    Chammas.  Salmon attempted to subdue Ahmad and a struggle ensued.  The
    appellant fired a single shot that passed through Mr. Ahmads head, killing him
    instantly, and into Mr. Salmons chest.  Salmon was badly hurt.  He ran from
    the room and the appellant followed.  Salmons body was found in a nearby
    parking lot.  The appellant fled the scene going over a fence and across a
    nearby construction site.  He surrendered to the police a few days later.

[4]

The Crowns case was based on the eyewitness evidence of Chammas and a
    body of circumstantial evidence that included cell phone records and evidence
    that the murder weapon and a related magazine were found along the flight path
    allegedly followed by the appellant after he left the motel room.

[5]

Identity was the only issue at trial.  It was acknowledged that whoever
    fired the fatal shot was guilty of two counts of first degree murder.

[6]

The appellant did not testify.  It was the defence position that the
    appellant was not the shooter.  The defence acknowledged that the appellant and
    Salmon were together much of the evening and in almost constant contact on the
    telephone when they were not together.  The defence also acknowledged that the
    appellant and Salmon had visited Ahmad and Chammas in the motel room about an
    hour to an hour and a half before the shooting.  Finally, the defence acknowledged
    that the appellant was in the immediate vicinity of the motel room when the
    murder occurred and that he fled the scene by climbing a fence and going
    through the construction site.

[7]

The defence maintained that although the appellant was with Salmon on
    his first visit to the motel room, someone else was with Salmon when he
    returned to the motel room at about 9:45 p.m. to commit the robbery.  According
    to the defence, that third person fired the fatal shot and fled the scene with
    the badly wounded Salmon.

[8]

The defence put considerable weight on the evidence of William Doughty
    who saw two people in the parking lot of the restaurant beside the motel shortly
    before 10:00 p.m.  One person, who turned out to be Mr. Salmon, was obviously
    badly injured.  The other person ran away, but not before Doughty was able to
    recognize him as a person Doughty had seen in the area earlier at around 6:30
    p.m.  Doughtys description of the person he saw was inconsistent with the
    appellants appearance.  Doughty was shown a photo line-up a few days later
    which included a photograph of the appellant.  Doughty did not make an identification.

III

chammas identification evidence

[9]

Chammas testified that he and his friend Ahmad were in the motel room on
    the evening of June 21
st
.  He was smoking marihuana and Ahmad was using
    cocaine.  Ahmad spoke to Salmon on his cell phone several times.

[10]

Salmon
    and a second person showed up at the motel room around 8:30 p.m.  The four men
    exchanged small talk.  Chammas identified the person with Salmon as the
    appellant.  He recalled speaking to the appellant about his ethnicity.  Chammas
    had not met the appellant previously.  He described the meeting as friendly and
    normal.

[11]

According
    to Chammas, Salmon and another man returned to the motel room at about 9:45 p.m.
    Salmon entered and spoke to Ahmad.  The other man stood in the doorway.  Shortly
    after their arrival, Salmon physically attacked Ahmad.  The man in the door
    pulled out a handgun and pointed it at Chammas and Ahmad.  The gunman told Chammas
    to assist in restraining Ahmad.

[12]

The
    struggle between Salmon and Ahmad continued.  The man at the door fired the
    gun, killing Ahmad and seriously wounding Salmon.  Salmon immediately bolted
    for the door with the other man close behind.  Chammas called 911.

[13]

Chammas
    was shown a photo line-up by the investigating officer three days after the
    shooting.  Photo #8 was a mug shot of the appellant.  Chammas paused at photo
    #1 and photo #8.  He said he was not sure about photo #1 and that photo #8
    was similar to the shooter, except the person in the photograph had facial
    hair and bigger lips.  Chammas described the shooter as clean shaven.  The
    investigating officer reminded Chammas that things like hair and facial hair
    could change.

[14]

Chammas
    was shown a second photo line-up about five days later.  By that time, the
    appellant had been arrested.  The appellants mug shot from his arrest was
    included as photo #9 in the second photo line-up.  The appellant had facial
    hair in the mug shot.

[15]

Chammas
    looked at photo #9 for about 12 minutes.  He said:

He looks very much the same  guy, very, very, very much, he
    looks the same guy, but last week he had no hair, no beard, no moustache, but
    shape of face and the eyes and the nose it will show this is the one, Im not
    100 percent sure because this picture is different but  it is unbelievable.  I
    think that is him.  I think that is him; I think that is him.

[16]

After
    Chammas had seen all of the photographs, he said, referring to the photo of the
    appellant:  this is the one, this is the guy 100 percent.

[17]

There
    were several problems with Chammas evidence identifying the appellant
    beginning with the fact that he failed to make any identification in the first
    photo line-up and was shown a second line-up.  Chammas also insisted that the
    shooter was clean shaven.  There was evidence that the appellant always had
    facial hair.  However, by the end of the evidence, it was common ground that
    Chammas had correctly identified the appellant as one of the two men in the
    motel room at about 8:30 p.m.  The question for the jury was whether he was
    also correct in identifying the appellant as the person who returned to the
    motel room with Salmon about an hour and 15 minutes later.

IV

the admissibility of CHAMMas eyewitness evidence

[18]

A
    trial judge can exclude evidence offered by the Crown where the prejudicial
    effect of the evidence outweighs its probative value.  Evidence is prejudicial
    in the relevant sense if it threatens the fairness of the trial.  Evidence may
    be prejudicial if it cannot be adequately tested and challenged through
    cross-examination and the other means available in the adversarial process.
    Evidence may also be prejudicial if there is a real risk that the jury will
    misuse the evidence (e.g. propensity evidence), or be unable to properly assess
    the evidence regardless of the trial judges instructions.  This latter form of
    prejudice must, however, overcome the strong presumption that jurors can and do
    follow the trial judges instructions.

[19]

Chammas
    eyewitness evidence could be fully tested by the defence.  The entirety of the
    identification process was fully documented and available to the defence.  Both
    photo line-ups were videotaped and the videotapes were before the jury.  All of
    the witnesses involved in the identification process testified and all of the
    officers had notes.  There was fertile ground for cross-examination and counsel
    worked that ground to full effect.  The alleged weaknesses in Chammas evidence
    were fully exposed for the jurys consideration.

[20]

There
    was also nothing peculiar or unique about Chammas evidence that would impair
    the jurys ability to fairly assess its credibility and reliability.  The
    assessment of identification evidence can be a difficult and, in some ways,
    counterintuitive process.  That is why special instructions are given to juries
    to assist in their assessment of identification evidence.  The potential
    problems with Chammas identification evidence, while numerous, were standard
    fare for identification evidence cases.  Juries, armed with the appropriate
    instructions, routinely assess that kind of evidence.

[21]

It
    follows from our finding of an absence of prejudice in the relevant sense, that
    Chammas identification evidence could not be excluded.  Absent prejudice, a
    trial judge cannot exclude evidence solely on the basis that the judge thinks
    that the evidence has little probative value.

[22]

The
    trial judge properly admitted Chammas identification evidence.

V

the admissibility of the experts evidence

[23]

The
    appellant has two submissions in respect of the experts evidence, one broad
    and one more narrow.  The broad submission asks this court to depart from its
    pronouncement in
R. v. McIntosh
(1997), 117 C.C.C. (3d) 385 and hold
    admissible expert evidence explaining in general the frailties and dangers
    inherent in eyewitness identification evidence.  This record offers no basis
    for any departure from
McIntosh
.  Dr. Lindsays [the defence expert] brief
    commentary on the abilities of jurors to properly assess identification
    evidence added nothing to the longstanding debate.  Judges, commentators and
    social scientists remain divided on whether expert evidence is necessary to
    assist a jury in assessing eyewitness identification.

[24]

In
    urging the court to move away from
McIntosh
, counsel submits that:

This court should now acknowledge that social science has
    eclipsed traditional judicial understanding about the value of eyewitness
    expert evidence.

[25]

With
    respect, nothing in this record would warrant any such acknowledgement.  The
    record suggests to us that the arguments for and against the admission of this
    kind of evidence are the same now as they were when
McIntosh
was
    decided.

[26]

The
    narrower basis upon which the appellant sought to introduce the experts
    evidence relates to the experts description of two phenomena which he called
    change blindness and unconscious transference.  Both phenomena were said to
    explain how Chammas might have erroneously but honestly thought that the same
    person came to the motel with Salmon both times.  In other words, the expert
    wanted to explain to the jury that Chammas having been introduced to the
    appellant with Salmon about an hour earlier might have mistakenly believed that
    the appellant was the person with Salmon when Salmon returned to the motel room
    for the second visit.

[27]

The
    trial judge ruled that the experts evidence did not meet the necessity
    criterion for the admissibility of expert evidence.  In his view, the jury
    would be able to properly assess the evidence using their own common sense,
    human experience, and the instructions provided by the trial judge.  The trial
    judge said:

Most of what he [the expert] would speak to can be conveyed in
    the final instructions.  Generally, the issues involve the age old problem we,
    as humans, have in accurately observing, remembering and recalling so as to be
    able to reliably identify people and describe events.

[28]

In
    determining whether the experts evidence was necessary, the trial judge was
    effectively weighing the benefits of admitting the evidence against the
    potential costs of that admission.  That process is entitled to deference in
    this court.  We would not interfere with the trial judges determination that
    the evidence was not necessary.

VI

the trial judges instructions

[29]

Counsel
    for the appellant made essentially three submissions as part of this ground of
    appeal:

·

the caution was inadequate;

·

the trial judge failed to give an adequate
Hibbert

instruction cautioning against reliance
    upon the certainty of Chammas identification evidence; and

·

the trial judge failed to expressly identify the weaknesses in
    Chammas identification evidence and to relate those weaknesses to the position
    of the defence.

[30]

The
    instruction on eyewitness identification was detailed and comprehensive.  The
    trial judge began with the general caution about reliance on identification
    evidence.  In the course of that caution, he instructed the jury to be very
    cautious about relying on the eyewitness testimony.  He further indicated
    that:

All identification evidence suffers from an inherent frailty.
    The fact is human observations and recollections are notoriously unreliable in
    this area.

[31]

A
    jury having heard the trial judges instructions, particularly after hearing
    defence counsels closing address, would have no doubt about the dangers
    inherent in identification evidence.  The caution was adequate.

[32]

The
    trial judge also instructed the jury that identification evidence could be
    erroneous even when coming from a witness who seemed confident about his or her
    identification.  The trial judge said:

Eyewitness testimony is an expression by a witness of his or
    her belief or impression.  It is quite possible for an honest, confident
    witness to make a mistake in identification.  Honest people do make mistakes.
    An apparently convincing witness can be mistaken.

[33]

The
    above-quoted instruction was sufficient to alert the jury to the potential
    disconnect between the witness confidence in his or her identification and the
    reliability of that identification.  In
R. v. Hibbert
(2002), 163 C.C.C.
    (3d) 129 at 53, a case dealing with in-court identification, Arbour J. noted:

What will be required to displace the danger that the jury will
    give an eyewitness identification weight that it does not deserve will vary
    with the facts of individual cases.

[34]

The
    final and most formidable argument aimed at the trial judges instructions
    stresses the difference between identifying potential factors relevant to the
    jurys assessment of the reliability of eyewitness evidence and instructions
    that certain factors must inevitably detract from the reliability of that
    evidence.  Counsel submits that the trial judge may have done the former, but
    did not do the latter.

[35]

As
    we read the charge, the trial judge combined both approaches.  He outlined
    numerous factors relevant to the jurys assessment of the identification
    evidence and he also specifically identified various factors that would
    potentially undermine the reliability of that evidence.  After referring to the
    description provided by Chammas and the circumstances of his purported
    identification, the trial judge outlined some eight factors that could assist
    the jury in weighing that evidence.  Most of those factors clearly had a
    negative impact on the potential reliability of the evidence.  For example, the
    trial judge specifically referred to the fact that Chammas expected that the
    same two men would return to the motel room and that this expectation could
    well have affected the accuracy of his identification of the appellant as the
    shooter.

[36]

The
    trial judge also outlined the photo identification procedures in great detail
    and again referred to several factors which could only adversely affect the
    reliability of Chammas identification.

[37]

Lastly,
    and perhaps most importantly, the trial judge instructed the jury to consider
    Chammas evidence in the context of the rest of the evidence.  He outlined that
    evidence, including the substantial body of circumstantial evidence
    incriminating the appellant and Doughtys identification which clearly tended
    to exculpate the appellant.

[38]

Considering
    the instruction as a whole, we are satisfied both that the jury was properly
    alerted to the various weaknesses in Chammas evidence and that his evidence
    was properly placed in the context of the rest of the evidence.  The instructions
    adequately equipped the jury to assess Chammas evidence.

VII

conclusion

[39]

The appeal is dismissed.

RELEASED:  DD  APR 18 2013

Doherty J.A.

J.C. MacPherson J.A.

E.A. Cronk J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Hassan, 2013 ONCA 238

DATE: 20130417

DOCKET: C53653

Doherty, MacPherson and Cronk JJ.A.

Her Majesty the Queen

Respondent

and

Mustafa Hassan

Applicant (Appellant)

Theodore Sarantis, for the appellant

Tracy Kozlowski, for the respondent

Heard:  April 11, 2013

On appeal from the convictions entered by a jury presided
    over by Justice Robert M. Thompson of the Superior Court of Justice, dated
    December 9, 2010.

ENDORSEMENT

[1]

The appellant was convicted by a jury of aggravated assault and assault
    with a weapon.  Both charges arose out of a fight between the appellant and
    Craig Wheildon.  The appellant stabbed Mr. Wheildon several times.  Mr.
    Wheildon was unarmed.  The appellant claimed he acted in self-defence.  He did
    not testify.

[2]

The appellant appeals conviction only.  There are five grounds of
    appeal.

ground #1  did the trial judge err
    in failing to conduct an inquiry into the allegations of one of the jurors made
    after the verdicts?

[3]

Counsel for the appellant did not press this ground of appeal.

[4]

One of the jurors sent a letter to the trial judge after the verdicts
    were delivered claiming, among other things, that her fellow jurors had coerced
    her into returning a guilty verdict.  The letter also made reference to
    comments made by court officers responsible for the jurors during their
    deliberations.  The trial judge caused statements to be taken from those court
    officers.  He, however, declined to enter upon any further inquiry.

[5]

The trial judge could have conducted a hearing for the purpose of
    creating a record for appellate consideration.  He was not, however, obliged to
    do so.  The appellant has had a full opportunity to create the appropriate
    record for this court.  This ground of appeal fails.

ground #2  do the allegations made
    by the juror vitiate the verdicts?

[6]

We have considered the notes from the juror delivered to the trial judge
    after the verdicts and the statements provided by the court officers.  The vast
    majority of the allegations made by the juror could not be considered under the
    juror secrecy ratio in
R. v. Pan
, [2001] 2 S.C.R. 344.  For example,
    the statement by the juror that others would not allow her to put questions to
    the trial judge during the jurys deliberations is protected by juror secrecy
    and is not admissible on an inquiry into the jurys verdict.

[7]

To the extent that the notes suggest that the jury was subject to outside
    influence in the form of a comment made by a court officer to one of the jurors,
    the jurors notes do refer to a potential outside influence that is beyond the pale
    of juror secrecy.  That reference in the jurors notes is the proper subject
    matter of appellate inquiry into the validity of the verdicts.

[8]

The version of the comment provided by the court officer offers no
    support for any claim of improper influence.  Considered in the context in
    which the officer made the comment, that comment, about the cost of the
    proceedings to the taxpayer, was not inappropriate or capable of influencing
    any juror.  The officers comment was merely a statement of a fact that would
    be obvious to any juror and was offered to the juror as an explanation for the
    officers insistence on strict adherence to the protocols established for the
    jury while they were deliberating.

[9]

In one of the jurors notes to the judge, she said:

Once we returned to the jury room after dinner, it was reported
    that one of the CSOs said that this case was costing the County over $100,000,
    so we better do this right, which was interpreted to mean a guilty verdict.

[10]

The
    source of the report is not identified in the jurors note.  Nor are those
    who interpreted the comment to mean a guilty verdict identified.  The juror
    who wrote the note does not suggest that she heard the officers comment or
    that she was in any way influenced by what she was told.  The jurors
    unsourced, vague reference to something a court officer supposedly said to
    another juror is no reason to doubt the
bona fides
of the verdicts.

ground #3  did the trial judge err
    in failing to put section 37 of the
criminal code
to the jury?

[11]

The
    trial judge charged the jury on self-defence as defined in s. 34(1).  He did
    not instruct the jury on s. 37 even though counsel for the appellant requested
    that instruction.

[12]

The
    appellant says that an instruction on s. 37 was necessary because unlike s.
    34(1), self-defence under s. 37 is available where the appellant provoked the
    initial assault or where the appellant intended to cause death or grievous bodily
    harm to Mr. Wheildon.

[13]

The
    appellants submissions accurately set out the distinctions between
    self-defence as described in s. 34(1) and s. 37.  Neither distinction assists
    the appellant.  The trial judge effectively took provocation as a bar to
    self-defence under s. 34(1) away from the jury.  He said:

I would suggest that there is no evidence that Mr. Hassan
    provoked Mr. Wheildon into assaulting him.

[14]

There
    is no realistic possibility that this jury rejected self-defence under s. 34(1)
    because it was satisfied beyond a reasonable doubt that the appellant provoked
    the assault.

[15]

Nor
    could the appellant have possibly succeeded on a self-defence claim if the jury
    found that he intended to kill or cause bodily harm to Mr. Wheildon.  When the
    appellant stabbed Mr. Wheildon, he had no basis to reasonably apprehend death
    or grievous bodily harm at the hands of Mr. Wheildon.  Absent that reasonable
    apprehension, a response in which the appellant intended to kill or cause
    grievous bodily harm to Mr. Wheildon could not possibly meet the
    proportionality requirement of s. 37(2).  There is no air of reality to a
    self-defence claim premised on conduct of the appellant driven by an intention
    to kill or cause grievous bodily harm.  The failure to instruct on s. 37 was
    not non-direction amounting to an error in law.

ground #4  did the trial judge
    fail to relate the evidence to the defence of self-defence?

[16]

The
    trial judge identified the criteria relevant to the claim of self-defence under
    s. 34(1).  He explained each criterion in the context of the evidence heard by
    the jury.  The trial judge also reviewed the positions of the parties and the
    evidence of the witnesses.

[17]

Counsel
    had a draft of the trial judges charge before it was delivered and took no
    objection to the manner in which the trial judge proposed to deal with the
    evidence.  Counsel made no objection to the charge after it was delivered.

[18]

The
    instructions on self-defence were correct in law, clearly stated, particularly
    having regard to the subject matter, and fairly related the evidence and the
    positions of the parties to the self-defence claim.  A trial judge is not
    required to repeat in detail every argument made by the Crown and the defence,
    or to martial the evidence in support of each argument as would counsel.

[19]

The
    jurys question did not request a more detailed review of the evidence.  The
    trial judge responded to the question by repeating his earlier instructions.
    Counsel were content with that response.  So are we.  There was no error.

ground #5  did the trial judges
    expression of opinion result in a miscarriage of justice?

[20]

Counsel
    for the appellant did not press this ground of appeal.  While the trial judge
    did comment negatively on the reliability of certain witnesses, he made it
    clear to the jury that it was free to disregard his opinions.  The witnesses
    singled out by the trial judge did not assist the defence any more than they
    did the Crown.  The trial judges comments did not impair the fairness of the
    trial.

[21]

The
    appeal is dismissed.

[22]

The
    trial judges publication ban on the jurors notes and the court officers
    statements continues in force.

Doherty J.A.

J.C. MacPherson J.A.

E.A. Cronk J.A.


COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Huang, 2013 ONCA 240

DATE: 20130416

DOCKET: C54305 and C54340

Doherty, MacPherson and Cronk JJ.A.

BETWEEN

DOCKET: C54305

Her Majesty the Queen

Respondent

and

Ying Huang

Appellant

AND BETWEEN

DOCKET: 54340

Her Majesty the Queen

Respondent

and

John Huang

Appellant

Zachary Kerbel, for the appellant, John Huang

Frank Addario and Megan Savard, for the appellant, Ying
    Huang

David Littlefield and Sabrina Montefiore, for the
    respondent

Heard: April 9, 2013

On appeal from the convictions entered by Justice Robert
    F. Scott of the Superior Court of Justice, sitting without a jury, dated August
    26, 2011.

By the Court:

A.

John Huangs Appeal

I.        Introduction

[1]

After a trial by judge alone, the appellant was convicted of conspiracy
    to produce marijuana, production of marijuana and possession of marijuana for
    the purposes of trafficking.  He was acquitted of a series of counts related to
    utilities theft. He was sentenced to four and one-half years imprisonment,
    after six months credit for pre-sentence custody and restrictive bail
    conditions.

[2]

The appellant appeals from his convictions.  His principal ground of
    appeal is that the trial judges conduct during the trial, in particular, his
    intervention during the Crowns cross-examination of the appellant, gave rise
    to a reasonable apprehension of bias and undermined the appearance of fairness
    in this case.

[3]

For the reasons that follow, we agree that the trial judges impugned
    comments gave rise to a reasonable apprehension of bias that fatally
    compromised trial fairness.  It follows that there was a miscarriage of justice
    and a new trial is required.

II.       Discussion

[4]

The charges against the appellant arose in connection with his role as a
    real estate agent for the purchasers of several properties in eastern Ontario that
    were used as the locations of marijuana grow operations.  The Crowns theory
    was that the appellant, using his position as a realtor, acted in concert with
    others to acquire the relevant properties for the purpose of producing large
    quantities of marijuana plants.  Alternatively, the Crown maintained that the
    appellant aided or abetted others to produce the marijuana plants.

[5]

The appellant claimed that he was an innocent dupe.  He testified at
    trial that he had no knowledge that the properties were going to be used to
    grow marijuana and only learned of their use for this illegal purpose after his
    arrest.  He said that he had been approached by the purchasers to represent
    them in the relevant sales transactions because they had either seen his
    advertisement in a Chinese newspaper, or they were from the same part of China
    as is the appellant and were referred to him by his wife through her contacts
    in the Chinese community.

[6]

The Crowns case against the appellant was circumstantial.  The
    appellants credibility was the core issue at trial.

[7]

The appellant was tried before a judge alone, together with his
    co-accused, Ying Huang.  The Crown maintained that the appellant and Ying Huang
    were co-conspirators, and that the appellant had represented Ying Huang on the purchase
    of 28 Hickory Grove in Belleville, one of the properties used for a marijuana
    grow operation.

[8]

During his examination-in-chief, the appellant agreed that he had acted
    as the realtor for the purchaser of this property.  However, he testified that
    the buyer was Yan Huang, not Ying Huang.  He said that he never met Ying Huang
    until after his arrest and that he had only met Yan Huang once, when he first
    showed her the Hickory Grove property.  The Crown countered that Ying Huang had
    impersonated Yan Huang, and that Ying Huang was the real purchaser of the
    Hickory Grove residence.

[9]

During the Crowns cross-examination of the appellant, Crown counsel
    challenged the appellants assertion that he had only met Yan Huang once, in
    February 2009, when he first showed her the Hickory Grove property for
    potential purchase.  In doing so, counsel confronted the appellant with a
    mutual release document regarding the Hickory Grove property that appeared to
    have been signed by Yan Huang and witnessed by the appellant in mid-March
    2009.

[10]

At
    this point in the cross-examination, the following exchange took place:

Q.      Did you ever see Yan Huang after that?

A.      Who?

Q.      Yan Huang,
    Peng Zengs wife, did you ever see her after that first trip?

...

A.

No.

Q.      I wonder
    if you could turn to page 15 of Mr. McKinneys file...Do you have page 15
    there?

A.      Yes.

Q.      This is the mutual release.

A.      Yes, I, I did, made it.

Q.      Pardon me?

A.      I made this, ah, ah, mutual release paper.

Q.      And its
    signed March the 12th, 09 by Yan Huang and you witnessed her signature?

A.      Yes, should be her signature.

Q.      But you
    told me you only saw her once, at the property?

A.      Yes.

Q.      And that was early February?

A.      Yes.

Q.      This is March, March 12th?

A.       Yes.  I remember I made
    this paper.  I think my wife took the paper and asked her to sign it.

Q.      But thats
    your signature, isnt it, Mr. Huang because you witnessed your bosss signature
    right below it?

A.      Right.

Q.      That is your signature, isnt it?

A.      Yes.

Q.      And this is an important document, isnt...

A.      Yes.

Q.      I believe
    you told us yesterday that this was getting out of a real estate deal and for
    you that means losing commission which in this case is about $6,500.00?

A.      Yes.

Q.      This document is worth $6,500.00 to you?

A.      Yes.

Q.      You must have seen her a second time?

A.      No.

Q.      You didnt?

A.      I never, I
    never saw her again.  There was, there were signatures several times, other
    times all my wife who brought the paper and ask her to sign them.

Q.      But Mr.
    Huang, if we look at page 15, you are signing this document saying that you
    witnessed Yan Huang sign it on March the 12th?

A.      Yes.

Q.      Is that false?

A.      I dont think it is false.

Q.      Well, did you or did you not...

THE COURT:        Im going to have you stop
    right there for a minute.  Do you understand what perjury is, Sir?  Do you want
    to take a minute with your counsel and she will instruct you what perjury is and
    that usually it incorporates about a year in custody.

THE WITNESS:     I dont think its, its
    false.

THE COURT:        Counsel is standing.
    Just a minute.  Yes?  Do you want to take a minute and speak to him about what
    perjury is about?

MS. SCHOFIELD:  Well, Your Honour, with
    all due respect, Your Honour, I dont think that it is proper for Your Honour
    to interject and caution him about perjury at a point when he is trying to
    explain an answer.  It hasnt...

THE COURT:        Either he is present or
    he is not present.  He has testified that he didnt witness the signature,
    whereas the document he signed says he did.

MS. SCHOFIELD: Well, the document
    itself...

THE COURT:        Either he is there or
    he is not there, all right.

MS. SCHOFIELD:  I think he has already
    said he wasnt there.

THE COURT:        All right, you dont
    have to caution him about perjury, counsel.  Thank you.

MS. SCHOFIELD:  Well, Your Honour, its
    not whether I should caution him or not about perjury but I have concerns that
    if Your Honour believes that we are entering into perjurious evidence, you are
    obviously the Trier of fact and I have concerns about this trial, frankly.  If
    Your Honour has those concerns then...

THE COURT:        I have concerns,
    Counsel.  Ill tell you that right now but he may be able to explain them.  I
    just wanted to make sure that he didnt get himself entrapped into something
    that might cause some other charges.  Thats all Im saying, all right.

MS. SCHOFIELD:  Okay, okay.  I dont think that...

THE COURT:        Do you want to counsel him with respect to
    what perjury means?  Thats all.

MS. SCHOFIELD:  No I dont.  I dont think that...

THE COURT:        Thats all Im looking for, all right.

MS. SCHOFIELD:  Okay.

THE COURT:        I just want to make
    sure he doesnt get himself in a real jam here.

MS. SCHOFIELD:  Okay, understood, Your
    Honour.

THE COURT:        All right.  Thank you.  Go ahead, Counsel.

MS. HURLEY:       Mr. Huang, did you sign this document having
    witnessed Yan Huangs signature?

A.

Yes, I signed the
    paper.

Q.      Did you witness Yan Huang sign it?

A.      No.

[Emphasis added.]

[11]

The
    appellant argues that this interjection by the trial judge reveals that he had
    pre-judged the appellants credibility before the appellant had been given an
    opportunity to explain himself and before all the evidence and the submissions
    of counsel had been heard.  The trial judges remarks, the appellant says, were
    improper and gave rise to a reasonable apprehension of bias.

[12]

We
    agree.  The clear implication of the trial judges suggestion that the
    appellant required advice from his counsel on the meaning and consequences of
    perjury was that the appellant was being untruthful in his evidence to the
    court, such that criminal sanctions might follow.  This unprompted insinuation
    by the trial judge occurred at a critical point during Crown counsels
    cross-examination of the appellant on an apparent material contradiction in his
    testimony, when the appellant was in the course of offering an explanation for
    the suggested contradiction.  The trial judges comments clearly impugned the
    creditworthiness of the appellants testimony by suggesting that he had or was
    about to commit perjury.

[13]

The
    impugned remarks were not innocuous.  The appellants credibility was the
    central issue at trial.  The trial judges declaration that the appellant
    required the advice of his counsel on the serious issue of perjury  in the
    midst of his cross-examination by Crown counsel  gives rise to an inescapable
    apprehension that the trial judge had concluded, at this early point in the
    trial, that the appellant was not to be believed.

[14]

That
    the trial judge himself attached significance to this exchange is confirmed by
    his reasons.  In rejecting the appellants evidence as incredible, the trial
    judge stated: I find that he misled the Court on a number of critical issues:
    ... 5. his not knowing the co-defendant Ying Tina Huang at the relevant
    times, including the details of the purchase of 28 Hickory Grove, Belleville.

[15]

The
    impartiality of a trial judge is essential to achieve trial fairness.  In this
    case, the trial judges comments called his fairness and impartiality into
    serious question.  His comments would strongly suggest to the reasonable
    observer that he had formed the belief that the appellant was being less than
    truthful.

[16]

Moreover,
    the trial judges insinuation of perjury could also have intimidated the
    appellant and effectively undermined his ability to respond to further
    questioning by Crown counsel.  This, too, compromised trial fairness: see
R.
    v. Stewart
, [1991] O.J. No. 81 (C.A.), at pp. 11-12.

[17]

In
    these circumstances, we have no hesitation in concluding that the very high
    test for the demonstration of a reasonable apprehension of bias has been met.
    In our opinion, an informed person, viewing the matter realistically and
    practically and having thought the matter through, would think that it was
    more likely than not the trial judge in this matter, consciously or
    unconsciously, would not decide the appellants trial fairly: see
Committee
    for Justice and Liberty v. Canada (National Energy Board)
, [1978] 1 S.C.R.
    369, at p. 394.

[18]

The
    Crown contends that the trial judge explained his remarks by indicating that he
    just want[ed] to make sure [the appellant] doesnt get himself in a real jam
    here.  The Crown further submits that defence counsel at trial, in effect, waived
    any impropriety in the trial judges interjection by indicating, in response to
    this proffered explanation by the trial judge, Okay, understood, Your Honour and
    by failing to object further and seek a mistrial on the basis of the trial
    judges remarks.

[19]

We
    reject this contention.  The suggested explanation by the trial judge did not
    ameliorate the appearance of unfairness occasioned by his remarks.  To the
    contrary, it exacerbated it.  The words uttered by the trial judge and relied
    upon by the Crown as constituting a benign explanation for the trial judges
    perjury references themselves reveal that the trial judge considered the
    appellants answers to Crown counsels questions as triggering possible further
    criminal consequences.  The appellant was already in a jam: he was defending
    himself before the court on criminal charges.  The trial judges reference to
    the appellant getting himself in a real jam can only be understood as meaning
    that the appellant, in the trial judges view, stood at risk of further
    criminal charges.  Indeed, the trial judge had earlier said as much when he
    told defence counsel: I just wanted to make sure that he didnt get himself
    entrapped into something that might cause some other charges.

[20]

Nor
    do we accept the Crowns submission that the appellants trial counsel is to be
    faulted for failing to object to the trial judges remarks.  As soon as the
    trial judge mentioned perjury, defence counsel was on her feet, objecting to
    the propriety of the trial judges intervention.  She promptly went on to
    explain that, in light of the trial judges comments, she had concerns about
    this trial.  In our view, her objection was timely, restrained and entirely
    appropriate.

[21]

In
    any event, the failure by counsel to object, or to seek a mistrial, has never
    been taken to constitute a waiver by an accused at a criminal trial of his or
    her rights, especially as fundamental and unqualified a right as the
    entitlement to a fair and impartial trial.

[22]

Nor
    is it for this court to speculate on what the result might have been at the
    appellants trial had he received a fair hearing.  The failure to afford the
    appellant a fair trial is fatal to the convictions entered against him and a
    new trial is required.  See
R. v. Curragh Inc.
, [1997] 1 S.C.R. 537.

[23]

We
    therefore conclude that the appeal must be allowed and a new trial ordered on
    this ground.  In light of this conclusion, it is unnecessary to address the
    other grounds of appeal raised by the appellant.  We should not be taken,
    therefore, as commenting on those grounds.

B.

Ying Huangs Appeal

I.        Introduction

[24]

Ying
    Huang was tried as a co-conspirator, together with John Huang.  Like Mr. Huang,
    she was convicted of conspiracy to produce marijuana, production of marijuana
    and possession of marijuana for the purposes of trafficking.  Unlike Mr. Huang,
    she was also convicted of several counts related to utilities theft.  As she
    was incarcerated for 33 months prior to sentencing, she was sentenced to time
    served.  She appeals from her convictions.

II.       Discussion

[25]

It was the Crowns theory at trial that Ying Huang was an active
    participant in the illegal production of marijuana at various of the relevant
    properties and that she acted as the banker or accountant for her fellow drug
    conspirators.  The Crown maintained that she was the actual purchaser of 28
    Hickory Grove in Belleville and that she had impersonated Yan Huang when
    acquiring this property in an effort to distance herself from the grow
    operation at that site.

[26]

The
    defence contended that the appellant was not part of the conspiracy and that a
    different person  Yan Huang  had purchased the Hickory Grove residence and
    was involved in the grow operations at that and other locations.

[27]

Of
    the various grounds of appeal advanced by this appellant, it is necessary for
    the disposition of her appeal to address only her argument that, on the basis outlined
    above regarding John Huangs appeal, the trial judges conduct in this case
    gave rise to a reasonable apprehension of bias.  She submits that this bias
    fatally undermined the appearance of fairness in respect of the entirety of
    this joint trial, resulting in a miscarriage of justice relating to her and Mr.
    Huang.  Accordingly, she contends, her convictions cannot stand and she, too,
    is entitled to a new trial.

[28]

We
    agree with submission.  The reasonable apprehension of bias arising from the
    trial judges inappropriate interjection during the Crowns cross-examination
    of Mr. Huang infected the appearance of fairness and impartiality for both
    accused.  Indeed, this was particularly acute in respect of Ms. Huang.  The
    trial judges improper interjection occurred precisely at the point during Mr.
    Huangs cross-examination when he was attempting to defend his assertion that
    he had not met Ying Huang until after his arrest and that the buyer of the 28
    Hickory Grove property was Yan Huang, not Ying Huang.  This exculpatory
    evidence bore directly on Ying Huangs culpability for the offences charged
    and, if accepted, would have led to her acquittal on some and perhaps all the
    charges against her.

[29]

We
    have already concluded that the test for the demonstration of a reasonable
    apprehension of bias is met in this case.  Our reasons for that conclusion, set
    out above in connection with John Huangs appeal, apply equally to this
    appeal.  In our view, that apprehension of bias also fatally compromised the
    fairness of Ms. Huangs trial.

[30]

By
    suggesting to the reasonable observer, through his remarks regarding Mr.
    Huangs testimony, that he had formed the belief that Mr. Huang was being less
    than truthful in his evidence concerning Ying Huang and her alleged involvement
    in the purchase of the 28 Hickory Grove property, the trial judges conduct
    gave rise to the apprehension that he did not believe the exculpatory evidence
    of Mr. Huang.  This evidence was a critical plank in Ying Huangs defence.  As
    a result, the trial judges improper intervention had the inevitable effect of
    undermining trial fairness in respect of Ying Huang, as well as John Huang.

[31]

Accordingly,
    we conclude that a miscarriage of justice occurred regarding both accused.
    Ying Huangs appeal must be allowed and her convictions set aside.  A new trial
    is required for both Ying Huang and John Huang.

C.

Concluding Observation and
    Dispositions

[32]

We
    make a final observation.  This is the second time in less than one year that
    this court has allowed appeals relating to judgments of this trial judge on the
    basis of reasonable apprehension of bias.  In both instances, the perception of
    bias arose because of improper and unwarranted interventions by the trial judge
    during the examination of witnesses: see
Lloyd v. Bush
, 2012 ONCA 349.
    In both instances, public resources were wasted, great inconvenience to the
    parties resulted and the integrity of the administration of justice was tarnished.

[33]

It
    bears repetition that trial judges, like appellate judges, must preside in a
    judicious fashion.  Trial judges are, at bottom, listeners.  As this court said
    in
R. v. Hossu
, (2002), 167 C.C.C. (3d) 344, at para. 35, [i]t is counsels
    job, not the trial judges, to explore inconsistencies in a witness
    testimony.

[34]

The
    appeals are allowed and a new trial in respect of each appellant before a
    different trial judge is ordered.

Released:

APR 16 2013                                    Doherty
    J.A.

DD                                                  J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.